Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1903-04-29

his, he forfeited his claim UNION the
horse for any expense for boarding
that had accrued or should thereafter
accrue until such consent was obtained.
The evidence upon which the defend
ant relies is in substance that he had
an agreement with Barrett whereby he
was permitted to take the horse out of
the state. This Barrett denies and
says that the defendant took the horse
! from Massachusetts after July, 1897
| when he had trouble with the defend
ant about his account for keeping the
horse and after a suit, or suits, at law
had been begun between them, and il
is contended that it is rot likely that
he IarretO would have permitted the
defendant to take away the horse to
use as he did. The plaintiff further
contends that the defendant exercised
dominion and control over the horse
rs belonging to his wife after having
gone through the form of sale in
May 1901, to Gray.
That sale was void and gave Gray
no title. Hence he could not pass title
~ Mrs. Folsom. That has been 50 i'd
judged and has been admitted py the
defendant. Yet it was attempted to
be established by suit at law and the
defendant has testified that he consd-
cred that his wife owned the horse and
treated and advertised it rs her prop
erty. 1t is claimed further that the
defendant used the horse substantially
as his own. taking the proceeds of his
services as a stallion without account
ing for them. If the defendant did in
fact without the knowledge or consent
OF the owner of the horse or of anv
person having authority to give such
consent treat the horse as his wife's
using his services and keeping the r.ro-
ceeds. he thereby waived and forfeited
his lien upon the horse, and it makes
no difference whether he had attempts
ed to enforce his lien claim by sale, and
failed or not. But It is claimed fur
Their that the sale attempted was
fraudulent whereby the defendant in
tended to get full possession of the
horse through his wife for a small sum.
AS l have said, fraud is never to he
presumed. The burden of proving it is
upon the party charging it. If proven
to your satisfaction it destroys all
claim to the defendant to possession by
virtue of a lien. The plaintiff cIaims
that no notice was given of the Sale.
that no opportunity was afforded Mr.
Barrett nor Mr.. Johnson to be present,
that the horse was knocked down to an
employee of the defendant for $50 and
that it was delivered to the de-
PENDANTS wife at the same price, if
any in fact was paid. Take this evil
dence and draw such inference as il
warrants as to the nature of that
transfer through Gray to Mrs. Folsom
as bearing upon the design of the de-
PENDANT in making the sale, in remov-
ing the horse to Maine and as bearing
upon his use of the horse after the at
tempted sale.
But even if YOU find that the de-
PENDANT had lost his lien on the horse,
the plaintiff would not be entitled 70 a
verdict unless you find that he had q
right to the possession at the date of
the writ, and if the conveyance to him
by Barrett was not q fraud under the
instructions l have given you, rs there
is no evidence that he had parted With
his interest. he had a right to the yos-
session.