10 Me. 458 | Me. | 1833
delivered the opinion of the Court.
It appears by the report of the Judge, that before any of the attachments of the logs therein mentioned were made, the firm of James Babcock if Co. was insolvent. That several of those attachments were made at the suit of creditors to the firm; and several at the suit of creditors of individual members of the firm. It further appears by the agreement of June 13th, 1826, made and signed by all the members of the firm, by the defendants and by the plaintiff, who was the attaching officer, that the logs above-mentioned were placed in the hands of the defendants for the purposes particularly specified in that agreement ; and that after payment by them of the debts due to the attaching creditors of the firm, a balance of $125, remained in their hands, which they claimed a right to retain to satisfy certain demands which they had against some of the individual members of the firm, in virtue of the terms and special provisions of said agreement; but the verdict was returned in favour of the plaintiff for said sum of $125 and interest; the whole amounting to $161, 87. We are well satisfied that if the plaintiff can by law maintain this action, he is entitled to recover neither more nor less than the amount mentioned in the verdict.
The disclosure of the defendants, made in the action of Isaac Smith against them as trustees of James Babcock Co., and which is referred to in the report as a part of the report, if competent evidence, certainly is not competent to establish facts, except as against the plaintiff in that action; but they cannot derive facts from that case, and use them in the present action as evidence, merely because they constitute a part of their disclosure. But the action of Isaac Smith against them as trustees, and the disclosure, both of which are referred to, are legal evidence of the claim of Isaac Smith as a creditor of the firm
Several objections have been urged on the part of the plaintiff against the prevalence of the motion for a nonsuit for the reasons stated in the report. In the first place it has been said, that Moses Babcock, at the time of the attachments, was not one of the firm of James Babcock Co. It appears that James made a contract with him, before the attachments were made, by whieh Moses became equally interested with him; and, if one of a firm cannot introduce a new partner without the consent of the other partners, still they may afterwards assent to it; and in the present case this was done; for, in the agreement of June 13th, 1826, all four of the persons are named and described as composing the firm of James Babcock Co. Besides, all the attachments made in suits against the firm, would be liable to the same objection. Again, it has been objected that as the trustee process was not commenced until after the present action had once been tried in this Court, and, of course, after issue had been joined, it can have no legal influ