Norton v. Heywood, 20 Me. 359

Norton v. Heywood

20 Me. 359 | Me. | 1841

The opinion of the Court was by

Shepley J.

The testimony in this case shows, that the agent of the devisees of William Bingham contracted with Charles Ramsdell to convey to him or his assignees, township numbered four in the county of Hancock, on payment of certain notes. There was no license to cut on it. This contract having been assigned to Heman Norton and others, he authorised Samuel Dunn, by a written permit, to enter and cut timber on it paying a certain sum for each thousand feci. Hall and Duren became sureties to secure the payments to be made by Dunn to Norton. This bill of exchange was drawn and indorsed for the accommodation of Hall and Duren, who accepted it and delivered it in part payment of the sums agreed to be paid by Dunn. The owners of the land by their agents then interposed and forbid payment of the value of the timber *362to others, claiming it for themselves. Dunn acquired no title to the timber thus cut without authority from the owners. He was but a trespasser and accountable to them. His contract to pay the value to Norton was without consideration, and so of course was that of his sureties. And they having accepted this bill in part payment of a contract voidable .for want of consideration, .it was liable to the same objection. The defendant might as indorser shew these facts in defence against Heman Norton, and a verdict was properly found for the defendant, if the plaintiff became the holder of the bill after it was over due and dishonored, and they were proved by legal testimony.

The presumption of law being, that the plaintiff became the holder before the bill became payable, it is contended, that there was no legal proof to rebut it; and that Heman Norton’s declarations were not admissible for this purpose. His declarations after he ceased to be the holder are not evidence. The testimony received is not properly described, when spoken of as the declarations of H. NortoB. It was, that he was in possession of the bill claiming to own it, .and that such possession by himself and his agents continued until it-was over due and protested. These are facts capable of being proved by any other witness as well as by him. It is said, that he might have negotiated it after it was sent to Messrs. Griggs and Chickering and before it became payable. He could not have done so in the usual course of business for he had not the bill to deliver. He might have assigned it, but if he had, that proof should have come from the plaintiff. It was sufficient for the defend" ant to introduce the usual and proper evidence of title in H. Norton by shewing it to be in his "possession until after it was over due. '

Another objection is, that the testimony does not prove, that Hall and Duren were trespassers. And it is said, that the instructions requested on that point, should have been given. It was not necessary to the defence, that they should appear to be liable as trespassers. It was only necessary, that it should appear in proof, that the bill was accepted in part *363payment of their own contract as sureties, which was without consideration to their principal or to themselves. The instructions requested were therefore properly refused, and those which were given were not liable to objection.

Another objection has reference to the admission of a copy of the contract between the agent of the devisees and Rarnsdell. There was testimony tending to prove, that H. Norton was the real party in interest, that notice to produce the original had been given, and that it was last, seen in his hands. Under such circumstances the copy proved to have been correctly taken was properly admitted.

It is contended, that the testimony offered to (prove, that the agent of the devisees had permitted actual settlers to cut timber under similar circumstances without treating them as trespassers, should have been received, Such testimony having reference to actual settlers and not to purchasers by the township could have afforded no excuse for this trespass. If it had related to contracts in all respects similar, to receive it, would be to permit many instances of indulgence and forbearance towards trespassers to be used as authorising others tq commit them as matter of right. Judgment on the verdict.