Fogg v. Lawry.

goods, because if the statement of the principle were correct, no one except a partnership creditor could invoke it the defendant could not. Douglass v. Winslow, 20 Me. 89. But the rule protecting the rights of partnership creditors makes no distinction between the attachment of the interest in a part and in all of the goods.

D. D. Stewart, for defendant, cited Douglass v. Winslow, supra; Moore v. Pennell, 52 Me. 162; Allen v. Wells, 22 Pick. 450.

PETERS, J. It was made a material question at the trial of this case whether an officer, who has a writ in favor of a creditor of one of the partners of a firm, could properly attach such a partner's interest in a specific portion of a stock of goods belonging to the firm, where the goods are situated together; or whether, in order to make the attachment valid, the interest of such partner in the entire stock of goods must be taken. The ruling was that the interest in the entire stock only could be attached. The learned judge evidently had in mind the rule appertaining to sale upon execution rather than that applying to an attachment upon writ The officer could attach the interest of the debtor in any portion of the goods. Upon execution, he could sell only such interest as the debtor would have in the property attached after all the partnership debts and any balances due the other partners were satisfied and paid. The purchaser would get merely the legal estate of the individual debtor in the particular goods sold, subject to the rights of the other partners and creditors of the firm. A private creditor might not be justified in attaching his debtor's interest in an entire stock of goods of a partnership, if the demand is small and the stock large, and the debtor's interest therein much more than necessary to satisfy all claims against him. We see no more necessity of attaching a debtor's interest in the whole of a particular stock, than there would be to attach his interest in all the property of the firm of which he is a member, however extended and situated. It would often be impossible to accomplish that. The other exception is not considered. This one is sustained. Hacker v. Johnson, 66 Me. 21; Parker v. Wright, id. 392.

APPLETON, C. J., WALTON, DICKERSON, BARROWS and DANFORTH, JJ., concurred.

On a note payable on demand with interest at ten per cent, that rate of interest is recoverable up to the date of the verdict, when damages are assessed by a jury; and up to the date of judgment, when a default is entered in a suit on the note.*

A

SSUMPSIT on a promissory note. The opinion states the case.

A. H. Ware, for plaintiff.

J. J. Parlin, for defendants.

PETERS, J. The defendants are sued upon a note which reads: "For value received we promise to pay John S. Paine, or order, five hundred dollars and interest at ten per cent." The question is: For how long a period can the plaintiff require that rate of interest to be paid? The note, although not so expressed, is on demand. Where a note is payable on time with interest exceeding six per cent, no more than six per cent is recoverable after maturity, there being no bargain for interest after that time. In such case, interest after the note is due is allowed only by way of damages. Eaton v. Boissonnault, 67 Me. 540; s. c., 24 Am. Rep. 52. It is different, however, if the note stipulates for extra interest after, as well as before, it is due. In such case, the rate of interest is collectible according to the contract. Capen v. Crowell, 66 Me. 282.

Applying this doctrine, as well as it can be applied, to the present case, we think interest at the rate agreed should be reckoned up to the date of judgment to be recovered upon the note. The meaning of the parties could not have been, that interest at the rate named was payable until the note was due and not after, because there was no time after the note was delivered before it became due. It was due instanter. It could have been sued by the plain

*See Cecil v. Hicks (29 Gratt. 1), 26 Am. Rep. 391, and cases there referred to; also Seymour v. Continental Life Ins. Co. (44 Conn. 300), 26 Am. Rep. 469.

Inhabitants of Nobleboro v. Clark.

tiff on the moment he received it. The statute of limitations then commenced to run against it. It could not have been in the contemplation of the parties that the note was to be immediately paid; for in such case, the note would be but an idle form. The idea of the contract must have been that the maker would pay the stipulated interest as long as the note might run. Such a note as this is denominated in the cases as a "continuing promise" and a "continuing security." We decide that the ten per cent interest shall be allowed on the note up to the date of judgment thereon. No other rule would be practicable. Had a jury assessed the damages, their verdict would have the terminal point at which the extra interest would stop.

APPLETON, C. J., WALTON, DICKERSON, BARROWS and DANFORTH, JJ., concurred.

INHABITANTS OF NOBLEBORO V. CLARK.

(68 Me. 87.)

Agent-authority to execute deed — when principal bound.

The authority of an agent to execute a deed in behalf of his principal need not be given in express terms; but may be implied from the express power given. The power to sell the land of the principal necessarily implies the power to execute a proper deed to carry the sale into effect. Thus: At a legal town meeting "chose H. agent to sell the balance of the town landing, if he thinks it will be for the interest of the town to do so." Held, that by this vote H. had authority to sell the demanded premises, and to execute a proper deed of conveyance thereof in behalf of the town. In Maine, where a deed is executed by an agent or attorney with authority therefor, and it appears by the deed that it was the intention of the parties to bind the principal or constituent,-that it should be his deed and not the deed of the agent or attorney it must be regarded as the deed of the principal or constituent, though signed by the agent or attorney in his own name. R. S., ch. 73, §§ 10 and 15.

In determining the meaning of the parties to a deed, recourse must be had to the whole instrument.

certain tract of land. In witness hereunto duly authorized,

The deed sets out that the inhabitants of the town of N. conveyed to Clark a whereof, they, "by the hand of Hatch, have set their seal, and the said Hatch Hatch, as agent of N., acknowledged

has hereunto subscribed his name."

Inhabitants of Nobleboro v. Clark.

the instrument to be the free act and deed of the inhabitants of the town. Held, that it was the deed of the inhabitants of N.*

TRIT of entry dated April 5, 1876, to recover a parcel of land in Nobleboro.

WRI

The plaintiffs put in deed from John Borland to the town of Nobleboro, dated and acknowledged May 24, 1804, and recorded September 17, 1805, admitted to cover land described in the writ.

The defendants put in the record of a legal town meeting of the inhabitants of Nobleboro, held March 16, 1874, at which the town duly voted as follows: "Chose J. Arad Hatch agent to settle with the railroad company, and sell the balance of the town landing if he thinks it will be for the interest of the town to do so, and to settle all other matters with the railroad company." Also a deed of the following tenor, signed and acknowledged as appears therein and covering the land described in the writ:

"Know all men by these presents, that the inhabitants of the town of Nobleboro, in the county of Lincoln, and State of Maine, in consideration of the sum of one hundred dollars, paid by John L. Clark, of said Nobleboro, the receipt whereof they do hereby acknowledge, do hereby remise, release, bargain, sell and convey, and forever quitclaim unto the said John L. Clark, his heirs and assigns forever, all their right, title and interest, in and to a certain tract of land situate in said Nobleboro, and bounded and described as follows: [Here follows the description.] Containing two acres, more or less, excepting, however, from the above-described premises, the land taken and crossed by the Knox & Lincoln Railroad Company. To have and hold the same, together with all the privileges and appurtenances thereunto belonging, to the said John L. Clark, his heirs and assigns forever. In witness whereof, the inhabitants of said town, by the hand of J. Arad Hatch, of said Nobleboro, hereunto duly authorized by a vote of the inhabitants of said town, at the annual town meeting held in said town on the 16th day of March, A. D. 1874, have hereunto set their seal, and the said J. Arad Hatch has hereunder subscribed his name this tenth day of March, in the year of our Lord one thousand

* See Means v. Swormstedt (32 Ind. 87), 2 Am. Rep. 330; Carpenter v. Farnsworth (106 Mass. 561), 8 Am. Rep. 360; Northwestern Distilling Co. v. Brant (69 Ill. 658), 18 Am. Rep. 631; Tannatt v. Rocky Mountain Nat. Bank (1 Colo. 278), 9 Am. Rep. 156, and note, 163; Haile v. Peirce (22 Md. 827), 13 Am. Rep. 139.

:

Inhabitants of Nobleboro v. Clark.

eight hundred and seventy-five. Signed, sealed and delivered in presence of William H. Hilton.

(Signed.)

J. ARAD HATCH. [SEAL.]

"LINCOLN, March 13, 1875.

Personally appeared J. Arad Hatch as agent of the said town of Nobleboro, and acknowledged the above instrument to be the free act and deed of the inhabitants of said town. Before me.

WM. H. HILTON, Justice of the Peace.

The presiding justice ruled that the deed did not pass the title to the defendant, and that he failed to make out a valid defense. The verdict was for the plaintiffs; and the defendant alleged exceptions.

O. D. Baker, for defendant, contended that the authority to sell implied the power to make a deed, and that Hatch signed as attorney for the town, not as an attorney at law, but as attorney in fact, made so by a vote of the town, and that it was not necessary that an agent or attorney should sign the name of his principal or express his agency in his signature; that taking the whole deed together, it was manifestly the execution of the principal, and cited the following cases in addition to some stated in the opinion: Burrill v. Nahant Bank, 2 Metc. 163; Decker v. Freeman, 3 Me. 338; Clark v. Manufacturing Company and cases, 15 Wend. 256, 258; Williams v. Bacon, 2 Gray, 387; Trueman v. Loder, 11 Ad. & E. 589; White v. Proctor, 4 Taunt. 209; Hutchins v. Byrnes, 9 Gray, 367; Craig v. Franklin County, 58 Me. 479; Haven v. Adams, 4 Allen, 80; Frontin v. Small, Ld. Raym. 1418; Townsend v. Hubbard, 4 Hill, 851; Tenant v. Blacker, 27 Ga. 418; Unwin v. Wolseley, 1 T. R. 674; Thompson v. Carr, 5 N. H. 510; Ward v. Bartholomew, 6 Pick. 409; Cofran v. Cockran, 5 N. H. 458.

i A. P. Gould & J. E. Moore, for plaintiffs, contended that 'there was nothing in the vote authorizing Hatch to make a deed, and nothing in the deed to show that Hatch signed for the town, and cited and discussed the following cases: Hutchins v. Byrnes, 9 Gray, 367, 369; Abbey v. Chase, 6 Cush. 54, 56; Brinley v. Mann, 2 id. 337; Stinchfield v. Little, 1 Me. 231 and cases; Elwell v. Shaw, 16 Mass. 42; Fowler v. Shearer, 7 id. 14;