11 Me. 371 | Me. | 1834
The opinion of the Court was delivered in Cumberland, at the term in August ensuing, by
This cause has been once under our consideration, see 1 Fairf. 429. The principal question then distinctly presented to view had respect to the nature of the property which Church and *S. Vance had in the mill, which they erected at their expense on the land and by the consent of William Vance; and to the effect and operation of the deed from him to the defendant's in the then existing circumstances of the property and the parties to the conveyance. The verdict, which was in favor of the defendants, was then set aside, and a new trial granted, for the reasons there stated. By setting aside the verdict, the Court indirectly, at least, decided that the form of action, was no objection to the plaintiff’s right to recover.
Several objections founded on the report of the Judge before whom the second trial was had, have been urged; and one in support of a motion in arrest of judgment. The first objection relates to the ruling of the Judge as to the right of the officer, who sold the mill to the plaintiff, to adjourn the vendue, as he did, to two succeeding days, and also to a different place, in another town, distant about three miles from the place originally appointed as the place of sale. Under the instructions given by the Judge, the jury have found that the vendue was not adjourned in the manner above stated, fraudulently or collusively or to the prejudice of either party. Upon a careful examination, we have not found any authority expressly given by statute to a sheriff to adjourn the vendue of personal property taken on execution from, and belonging to an individual, either to a subsequent day or to a different place. Yet it is easy to state cases where such sheriff might not have possible time to complete the sale on the day appointed, owing to the amount of the property, and the multitude of articles, which he had seised. Again, the day appointed might be so stormy that no persons could or would attend the auction with a view of purchasing, or for some other cause, as was the fact in the present case; or if present, persons
The next objection is, that the instructions of the Judge were incorrect as to the question of reasonable time allowable to the plaintiff to remove the mill. That must depend on circumstances. It tvas on the land by permission of the former owner of the land. The defendants bought the land, and made no objection to its re
A motion is made in arrest of judgment, on the ground that an action of trover will not lie for a saw-mill. We have already decided in this cause that the mill in question, situated as it is, is personal property ; and it being such, it is subject to. the operation of those principles which are applicable to other personal property. It is true, it cannot be useful to the plaintiff, as a mill with the usual privileges of such a building ; but the materials of which it is composed are of no small value when removed; that value the jury have estimated. The counsel for the defendant seems to view the declaration as a kind of legal absurdity; but this would instantly disappear, if the mill had been described under the name of the “ materials of a certain saw-mill,” &c. yet the legal effect is just the same, as the declaration now stands, connected with the whole facts of the case. Without enlarging any further, we only observe, that we are all satisfied that neither of the motions can be sustained; and there must be
Judgment on the verdict.