disseisin for twenty years is as effectual for that purpose as a deed duly executed. The title is created by the existence of the

facts, and not by the exhibition of them in evidence.

An open, notorious, exclusive, and adverse possession for twenty years would operate to convey a complete title to the plaintiffs, as much so as any written conveyance. And such title is not only an interest in the land, but it is one of the highest character, the absolute dominion over it, and the appropriate mode of conveying it is by deed.

No doubt a disseisor may abandon the land, or surrender his possession by parol to the disseisee, at any time before his disseisin has ripened into a title, and thus put an entire end to his claim. His declarations are admissible in evidence to show the character of his seisin, whether he holds adversely or in subordination to the legal title. But the title obtained by a disseisin so long continued as to take away the right of entry, and bar an action for the land by limitation, can not be conveyed by a parol abandonment or relinquishment; it must be transferred by deed. One having such title may go out of possession, declaring he abandons it to the former owner, and intending never again to make any claim to the land, and so may the person who holds an undisputed title by deed; but the law does not preclude them from reclaiming what they have abandoned in a manner not legally binding upon them. A parol conveyance of lands creates nothing more than an estate or lease at will: Stat., c. 91, sec. 30.

The exceptions are sustained, and a new trial granted.

PROOF OF TITLE and of a right of entry by statutory provisions are made sufficient proof of seisin: Sargent v. Roberts, 34 Me. 135.

TWO DISTINCT AND INDEPENDENT SEISINS of the same land can not exist at the same time: Putnam Free School v. Fisher, 34 Me. 172. The principal case is affirmed in Clancey v. Houdlette, 39 Id. 451; Chadbourne v. Swan, 40 Id. 260.

ENTRY UPON TRACT of land under a recorded deed of the whole, and the holding of that part in possession, is a constructive entry upon the whole: Robinson v. Brown et al., 32 Me. 578.

MERELY GOING UPON LAND will not always constitute a legal entry: Nea body v. Hewlett, 52 Me. 33.

STONE ET AL. v. WAITT.

[31 MAINE, 409.]

CARRIER WILL BE RELIEVED FROM LIABILITY if the owner of the goods, by contract with the carrier, waive any of his rights touching the delivery. CARRIER'S RESPONSIBILITY CEASES WHEN TRANSIT OF GOODS IS ENDED and

the delivery is completed or waived by the owner.

CARRIER'S RISK ENDS IF THE CONSIGNER ASSUMES CONTROL of the goods before they have arrived at the place of delivery.

SUPERCARGO, WHO IS ALSO MASTER of the vessel, after arriving at the end of the transit acts as the agent of the consignor in disposing of the goods. SUPERCARGO, ACTING AS AGENT OF THE CONSIGNOR, being obliged to leave port with his vessel, is justified in committing the consignor's goods to a responsible commission merchant for sale, when he has failed to effect a sale. CARRIER MAY BE RELIEVED FROM OBLIGATION TO STORE GOODS at the place of delivery by the waiver of the consignor's agent. WHERE PLAINTIFF REJECTED OFFER BY DEFENDANT TO BE DEFAULTED for a certain sum, and the plaintiff recovered judgment for a smaller sum than that specified in the offer, the costs of the defendant arising subsequently to the filing of the offer will be allowed and set off against the sum offered, plaintiff taking judgment for the balance, together with costs accruing to the time the action was filed.

PLAINTIFF, in June, 1848, shipped twenty-three tons of hay to Boston, on board of a schooner of which the defendant was master, having previously authorized the master to sell the hay. By agreement, the hay was stored on deck in good condition and well covered. The vessel arrived at Boston during the night, and the following day the master endeavored to sell it. He refused one offer at ten dollars per ton on six months' time, not knowing the responsibility of the party desiring to purchase, and not being empowered to sell on time. The following day the master attempted to sell the hay in Brighton, South Boston, and Dorchester, in all of which places he failed. The next day, Sunday, a rain commenced, which lasted, with occasional intermissions, until the Friday following. During this time it was impossible to remove the hay without damage, and extra covering had been placed over it to protect it. Efforts were made in the mean time to sell the hay, but all to no avail. While the storm was in progress, defendant saw one of the plaintiffs in Boston and told him he was unable to sell the hay, and desired to know of the plaintiff what should be done with it. No satisfactory reply was given, and the defendant, being obliged to leave with his vessel, unloaded the hay, left it with a commission merchant, who disposed of it at auction, netting

the sum of forty dollars and seventy-five cents, which defendant afterwards received, but failed to render an account current to the plaintiffs up to the date of action. Upon returning, the plaintiffs asked defendant if he had disposed of the hay, to which he replied substantially stating the facts herein stated, whereupon plaintiffs brought suit, alleging that defendant was liable as carrier and consignee. At the first trial the defendant offered to be defaulted for the sum of thirty-six dollars, alleging that his expenses in trying to sell the hay were five dollars. Defendant denied that he was liable as consignee or otherwise, and the action was submitted on this statement of facts.

Danforth and Woods, for the plaintiff.

North, for the defendant.

By Court, TENNEY, J. The risk of a common carrier terminates as soon as the goods have arrived at their place of destination, and are deposited there, and no further duty remains to be done under the contract to carry them: Story on Bail., sec. 538. If the owner of the goods, by the contract with the carrier, waive any of his rights touching the delivery, so far as the waiver extends, the carrier will be relieved of his liability. This is the law, notwithstanding any custom to the contrary. If a man has no warehouse of his own, and directs the carrier to leave the goods at the wagon office, till he should find it convenient to remove or to sell them, the carrier's responsibility will terminate with the deposit: Id., secs. 540, 541. When the transit is ended, and the delivery is either completed or waived by the owner, then the responsibility of the carrier ceases: Id., sec. 542. If the consignee take charge of the goods before they have arrived at the extreme or ultimate place of delivery, the carrier's risk will then terminate: Id., sec. 542; 2 Kent's Com., sec. 40, p. 469; Strong v. Natally, 1 Bos. & P. N. R. 16.

When the same person is not only master of the vessel, but also supercargo, he acts in two distinct characters. In the storage of the cargo and in the navigation of the vessel, and in the conveyance and the delivery of the cargo, he acts as the agent of the owners. But in the sale of the goods consigned to him, and accounting for the proceeds, he is not their agent, but the agent of the consignor. "After the arrival of the ship at the port of destination, he delivers the cargo as master, and receives it as consignee; all his authority as master is then determined:" 2 Livermore, 215; Williams v. Nichols, 13 Wend. 58. These different characters in which the same person may act are to be

treated as distinct, as if the acts appropriate to each character were confided to different persons: Story on Agency, sec. 36. In the one case he is a common carrier, in the other a factor, and for any want of fidelity in that trust, his employers have the same remedies against him that they would have against any other person, and no other: The Waldo, Daveis, 161.

It is insisted by the plaintiffs that the duties of the defendant, as a common carrier, had not terminated, when the hay was injured by the rain after its arrival in Boston; that it was incumbent on him to have landed and to have stored it.

66

The facts of the case show no custom, on the subject of landing or storing hay, after it reaches the place of destination, where the master of the vessel is the consignee for the purposes of sale. The hay in this case was shipped on board the schooner Echo, of which the defendant was master, to be carried to Boston, and consigned, or intrusted to the defendant as master of said vessel, for sale." It does not appear that the defendant had any warehouse, or other building in which he was accustomed to store goods. The conduct of the parties shows, if it was the right of the shipper to have his goods landed and stored, that in this instance that right was waived by the plaintiffs. By the express agreement of the parties the hay was carried upon deck, and was thereby in every respect as much exposed to rains on the voyage as after its arrival.

The master continued to have charge of the vessel as master, after she arrived in Boston, and it must have been expected, that a sale might be so speedy, that the storage would be an expense and trouble not anticipated under the circumstances; the landing of the goods would be no security from the weather, if they were not stored, and it could not have been designed, when they were to be in charge of the defendant, after he had fully performed all his duties as carrier, that they should be left upon the wharf, before their sale.

The conduct of the defendant shows, that he entered upon his duties as factor on Friday morning, the vessel having arrived on the preceding night; and he may be considered as having received the hay in his character of consignee from the time of his arrival. No complaint was made by one of the plaintiffs, who was informed by the defendant during the storm, that he had been unable to effect a sale, and was inquired of what should be done with the hay, indicative of an idea that the contract as master of the vessel had not been fulfilled. Under

all the facts of the case, the defendant is not shown to have neglected his duties as a common carrier.

Is he liable as consignee of the goods? Factors are generally held liable for ordinary diligence. And if they act in good faith and with reasonable diligence, they are protected: Story on Bail., sec. 455. If it was the expectation of the plaintiffs that the sale of the hay should be made before it should be landed, so that it could be carried from the wharf by the purchaser, there has been no want of ordinary care imputable to him as consignee.

After all reasonable endeavors to make sale of the hay, without success, and the time having arrived when it became necessary that the defendant should depart with his vessel, it was his privilege to leave the hay in the hands of some suitable person for sale; he placed it in the hands of responsible commission merchants for that purpose, after that he was relieved from further responsibility in relation to the sale; the persons with whom it was intrusted became the agents of the plaintiffs, and were accountable to them. The Waldo, before cited; Lawler v. Keaquick, 1 Johns. Cas. 174; Day v. Noble, 2 Pick. 615 [13 Am. Dec. 463].

The defendant received the sum of forty dollars and seventyfive cents as avails of the hay; and paid the sum of five dollars for expenses in his attempts to make sale of it, before it was delivered to the commission merchants. Not having rendered his account to the plaintiffs of his doings, while he had charge of the hay, nor informed them therein that he held in his hands a balance of the proceeds, which came to his possession, he was liable. He was entitled to deduct the expenses which he had incurred. He offered to be defaulted for a sum as large as the plaintiffs are entitled to recover, and costs are to be allowed him from the time that the offer was filed. These costs are to be set off against the sum offered, and judgment entered for the balance, in favor of the plaintiffs, with costs to the time when the offer to be defaulted was entered.

DEFENDANT'S OFFER TO BE DEFAULTED for a specified sum authorizes the plaintiff to take judgment for that sum, although he may fail to establish his claim: Boynton v. Frye, 33 Me. 216. Offer to be defaulted, if not accepted, does not constitute an admission of the cause of action, nor can such offer be used as evidence before the jury on the trial: Wentworth, Adm'r, v. Lord, 39 Me. 71. Offer to be defaulted will affect the costs only: Id.