cumstances existing in the present case, which should take it out of the operation of the rule before stated.
1. That this property was susceptible of a division into parcels, and the plaintiff might have taken from the common property an equal quantity and appropriated the same to his own use. It is unnecessary to consider what would have been the effect of an actual separation and setting out to the plaintiff by the defendant of an exact moiety of the common property, as no such fact exists here. The case only finds that there were remaining in other stores large quantities of salt belonging to the joint concern, but it appears, that the interest of Greene in the same was attached immediately upon his failure by lus private creditors, and the plaintiff has not received from this source any equivalent for his share in the salt taken and sold by Greene to the defendant.
2. As to the alleged ratification by the plaintiff of the sale by Greene, the Court perceive no sufficient evidence to sustain that ground. The sale of the other property does not appear to have been made with the assent of the plaintiff, and the demand by him on the defendant in the form of an account for salt sold, charging him with the entire amount of sales by Greene to him, was rather in the nature of an adverse claim, than a ratification of that sale, and must have been so understood by both parties.
3. Nor can any defence be sustained upon the supposed lien accruing to Greene by reason of his paying or assuming to pay the duties to the custom-house, under the circumstances disclosed in the case.
The plaintiff is therefore entitled to recover of the defendant the value of one half of the salt which came to the possession of the defendant and which has been sold by him. The measure of damages is the value of the property at the time of the conversion. This occurred when the defendant made the sales in April, 1837, and the value of the property is to be estimated with reference to that time.
Judgment for the plaintiff.
1. In an action upon a promissory note, it appeared, that the real es- tate of the defendant was attached before the note was signed, but that it was not intended that the writ should be used for the attachment of personal estate until afterwards; and personal estate was in fact at- tached after the note was signed. It was held, that the attachment of the real estate must be deemed the commencement of the action; and that, as the plaintiff had then no cause of action, the attachment, as well of the personal as of the real estate, was void. Swift v. Crock-
241 2. Under St. 1828, c. 112, an execu- tor might maintain trespass quare clausum for an injury done to the land in the lifetime of the testator. Wilbur v. Gilmore. 250 3 But if that statute had not been enacted, the provision in Revised Stat. c. 93, 7, allowing such an action, is not unconstitutional when applied to a trespass committed be- fore this provision went into opera- tion, inasmuch as it affects the remedy only. Ibid.
4. Where, in a trustee writ, the de- fendant was described as an inhab- itant of another State, and the offi- cer returned, that he had sum- moned the trustee, and no service was made upon the defendant by a
direct attachment of his property or otherwise, and the trustee dis- closed, that he was indebted to the defendant but was not an inhabit- ant of this Commonwealth, it was held, that the courts of this Com- monwealth were not authorized to take cognizance of the action, al- though personal notice of the pen- dency thereof, was given to the defendant in pursuance of an order of court; and that, as these facts appeared upon the record, includ- ing the return and the answer of the trustee, the action should be dismissed on motion Nye v. Lis- combe and Tr.
5. The appearance of the defendant in such case, by an attorney of the court, merely to move that the ac- tion should be dismissed for want of service, will not give the court jurisdiction of the action; and as such motion is not technically a plea to the jurisdiction, it may rightfully be made by attorney. Ibid. Where a writ is filled up provis ionally and delivered to an officer with instructions not to serve it un- til after a certain time or the hap- pening of a certain event, the ac- tion will not be deemed to have been commenced until the service of the writ. Seaver v. Lincoln. 267 7. Thus, where a writ against the
indorser of a note was delivered to an officer with instructions not to
ACTION ON THE CASE.
1. The master of a vessel is not re- quired by any positive law or gen- eral usage, always, in the night time, to exhibit a light on his vessel while at anchor in a harbor; and whether the omission to exhibit one will amount to negligence, so as to bar a claim for an injury received from another vessel's running foul of her, must depend on the partic- ular circumstances of the case. Carsley v. White. 254 2. In an action on the case against the defendant for carelessly and negligently setting a fire on his own land whereby the plaintiffs' property on adjoining land was con- sumed, it is not material whether the proof shows gross negligence or only want of ordinary care, for in either case the plaintiffs would be entitled to recover damages to the amount of the actual loss sus- tained by them, and no more, in the form of vindictive damages or otherwise. Barnard v. Poor. 378 3. The plaintiffs entered into a con- tract with the owners of growing wood, to cut and carry it away at a fixed price per cord, the wood to be measured by a sworn surveyor, and the plaintiffs were also to have one half of the refuse wood; and in pursuance of the contract a large quantity of wood was cut and corded, but was not measured in the mode agreed on. In an action of the case against the defendant for negligently setting a fire on his land adjoining, whereby the wood
was consumed, it was held, that the property in the corded wood had not vested in the plaintiffs, and that the measure of damages in respect to it was the value of the wood, deducting the price which the plaintiffs were to pay for it to the owners; that one half of the refuse wood had vested in the plaintiffs, and as to that the measure of dam- ages was the value of their half; and that they were not entitled to recover for the profits which they would have made on the wood which remained uncut, in case it had not been destroyed; nor for the counsel fees or other expenses of prosecuting the action, beyond the taxed costs. Ibid.
1. In an action against an heir, brought after the remedy against the administrator was supposed to be barred by the lapse of four years from his appointment and le- gal notice of the appointment, the declaration averred that the admin- istrator gave notice in the manner directed by the judge of probate by his order remaining on record, in- stead of averring that he gave the notice required by the statute: but it appeared that the notice ordered was in fact the same as that pre- scribed by the statute, and the ad- ministrator's affidavit on record showed that the order had been complied with. It was held, that the mistake was a defect of form only, and after verdict the plaintiff
A partnership consisting of W, B, S and S, doing business in one town under the name of W, S & Co., and in another under the name of B & Co., made three promissory notes in the name of W, S & Co. to the plaintiff's intestate. This partnership was dissolved, and thereupon B, S and S formed a new company, doing business in both places under the name of B& Co., and became indebted to the in- testate in the sum of $100-78. The new company soon after assigned their property in trust for the pay-
ment of their creditors, and in a schedule of the creditors and of the sums due to them respectively, an- nexed to the indenture of assign- ment, was the name of the intes- tate, with the sum of $100 set against it. By the indenture, the creditors who became parties to it "release unto the said B, S and S, and each of them, the several debts and sums of money, written opposite to their respective names, in the schedules hereto annexed." It was held, that construing the in- denture by itself, the intestate, by executing it, released only the sum set against his name, and that parol evidence to show that the notes were intended to be embraced by the release, was inadmissible. Rice v. Woods.
30 2. Under a common assignment of an insolvent debtor's goods in trust for his creditors, empowering the trus- tee to sell the goods in such man- ner as he may consider expedient and most for the interest of all par- ties, the trustee has authority to sell on a credit. Neally v. Am- brose & Trs.
3. In the case of a general assign- ment by an insolvent debtor in trust for the benefit of his credit- ors, purporting to be made by and between the debtor, the trustees, and those of the creditors who shall execute the instrument within a fixed period from its date, and con- taining a release to the debtor, a creditor who executes the instru- ment after such period has elapsed, is not a party to it, and his claim is not affected by the release. Bat- tles v. Fobes. 239 Where, previously to the sailing of a whaling ship, a seaman drew an order in favor of the plaintiff, on the owners, for his share of the proceeds of the voyage, and the agent of the owners declined ac- cepting it, but told the plaintiff, that he would take the order if the plaintiff wished, subject to his con-
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