Citation Numbers: 61 Me. 327
Judges: Appleton, Barrows, Cutting, Dickerson, Kentt, Tapley, Walton
Filed Date: 7/1/1870
Status: Precedential
Modified Date: 9/24/2021
The case is presented upon a report of the testimony offered by the plaintiff, accompanied by the admission that the defendant, as sheriff of the county, on June 12, 1869, duly attached the cigars and tobacco here replevied upon writs against one Tinker, in whose possession they were at the time of the attachment, and that the suits in which they were attached are still pending. The plaintiff claims under an alleged verbal sale from Tinker, and it is incumbent upon him to prove an absolute bona fide sale, as the defendant represents Tinker’s attaching creditors.
This was the whole transaction as testified to by the plaintiff. The cigars and tobacco went back into Tinker’s possession, and the suits instituted by the plaintiff were not entered. It would seem that no price for any of the articles was agreed on, nor were the boxes of cigars ever counted nor tlie tobacco weighed. When asked on cross-examination how much he gave for the cigars, plaintiff says : “ Took them on account for the dqbt he owed me.” To the inquiry how much he allowed for them towards the debt, he says: “ I suppose the cigars were not sufficient for the debt, and he should sell the cigars and give me the proceeds of them, and then we were to settle.” To the further inquiry, “ Did you ever allow him anything towards the debt for the cigars,” he responds : “ He has not rendered an account of sale of the cigars; took the cigars on account of debt.” It further appears on cross-examination that he kept no books but a memorandum book, and gave Tinker no credit for the goods| upon that; that he “ supposes ” the tobacco replevied is the same that was attached, and that he tk does not remember ” whether he stated when he brought the suits against Tinker that he did it “ merely to prevent others from suing him and should not prosecute them.”
Judgment for a return.