24 Me. 214 | Me. | 1844
The opinion of the Court was by
Exceptions are taken to the Judge’s, instructions to the jury, in general terms, without pointing out any part in particular, which is deemed erroneous. This mode of taking exceptions may be very convenient, so far as the counsel are concerned, as it leaves them to find out, at their leisure, in what particular, if any, the instructions are erroneous. To the Court, nevertheless, it may be somewhat inconvenient, as it will not be apprised of any casual mistake or omission, into which it may, in the hurry of a trial, have been momentarily led, in season to correct or supply it. It may be doubtful whether the Court should in such case consider a party aggrieved, so as to be entitled to have exceptions so taken allowed. At common law it would be necessary that the particular ground of exception should be designated, and in season to put the Court upon consideration of the supposed error, so that it might be corrected in time to prevent an improper effect from it. Possibly the statute, providing for the
The plaintiff claims to have had, what he terms, a lien upon the logs, to recover the value of which, this action was instituted. The word lien, in common parlance, is somewhat indiscriminately used, as if it embraced every species of special property, which one may have in goods, the general ownership of which is in another. It originally, and more appropriately, was used to signify the right of detention, which artizans and others, who had bestowed labor upon an article, or done some act in reference to it, had, in some instances, of a right of detention thereof till reimbursed for their expenditures and labor bestowed thereon. Such may be termed a lien at common law. The lien, if it may be termed such, upon which the plaintiff must rely, is not one of this description. In cutting and removing timber from the land of another, at an agreed price, and for the purpose of being sawed into boards, no lien, without a special contract therefor, can be acquired. In the cases of liens of the above description, as at common law, in order to the continuance of the lien, it was and is indispensable, that it should be accompanied by possession. The moment that possession was voluntarily surrendered, the lien was gone. And the authorities cited by the counsel for the defendant are conclusive upon this point; but may be wide of touching the case at bar.
It seems to be admitted, in the arguments of the counsel, that the plaintiff had a lien. If he had, it is important to see how it arose, and, what the particular nature of it may have been. We have seen that it could not have been a lien at common law; and neither party contends that it was. If it existed, then it arose upon a special contract; a contract, which was entered into by the plaintiff with one Jefferds, act
The plaintiff, then, having parted with his possession of the logs, after having performed his contract in reference to them, might or might not resume it upon the expiration of the terms of credit. If he saw that the owners were conducting in a manner affording a reasonable prospect of his availing himself of payment, as soon as his necessities would require it, he might suffer them to continue their possession. In this case, it would seem, that he witnessed the negotiation between their agent and Paine, and saw that it was an arrangement professedly made, with a view to enable them to make payments to him; and doubtless expected to realize therefrom the whole amount due him. He accordingly seems to have waited till the termination of that contract, and, not finding his expectations realized, demanded and sought to regain possession of
The instructions, in reference to the survey of the timber by Pond, were not erroneous. He bad been mutually agreed upon by the parties to perform that service. They should, therefore, be concluded by what he did, as it did not appear that he acted corruptly, or made any gross mistake.
The supposed mistake, noticed by one of the counsel for the defendants, in ascertaining the amount due to the plaintiff, does not come before us upon this bill of exceptions, and cannot therefore be noticed.
Exceptions overruled.