CASES IN THE SUPREME JUDICIAL COURT OF MAINE. BROWN, Petitioner, v. RICE. (57 Maine, 55.) Oriminal law-Sentence - Power of court to revise. Where a prisoner has been convicted and sentenced, and duly committed in pursuance of the sentence, the power of the court to revise or change the sentence is at an end. PETITION for writ of habeas corpus. The petitioner having been indicted for cheating by false pretenses, and having eaded guilty, was sentenced to imprisonment in the county jail for six months, and duly committed in pursuance of said sentence. Several days afterward the justice of the court which pronounced said sentence had the petitioner recalled into court, and sentenced him on the same indictment and conviction to be imprisoned in the state prison for the term of three years. The respondent, Rice, was the warden of the state prison. Davis & Drummond, for petitioner. N. Webb, for respondent. KENT, J. The question presented by the case before us 18, whether the sentence to three years' imprisonment in the state prisor was legally imposed. It is not objected that such a sentence was beyond the limit fixed for the crime, but it is urged that the court had no power to inflict it, because the same court had passed a prior sentence of six months' imprisonment in the county jail on Brown v. Rice. the same indictment, and had issued a warrant of commitment, which had been executed by the sheriff, by committing the prisoner to the jail, and he had been received by the jailer and entered on the register as such prisoner, and had remained as such for nineteen days of the six months before he was recalled into court and the Jecond sentence imposed. After conviction, if no legal bar is interposed, it is the duty of the court to award sentence, and after such sentence of imprisonment is pronounced and recorded on the docket, it is the duty of the court to issue a warrant to the sheriff or warden, directing him to take the convict into custody, and remove him to the designated place of confinement. When the court has done these acts it would seem to have done all that it had legal power to do, and its power over the prisoner or his destiny, under the proceedings then before it, would appear to be at an end. If there had been any irregularities or any illegal proceedings, the remedy would be by writ of error, or review, or by habeas corpus, or some other new proceeding. It is clear that a judge cannot pass two sentences, to be in force at the same time. He cannot pass a sentence of imprisonment in the county jail for a specified time, and afterward add to it a sentence of years in the state prison, to take effect after the expiration of the first part of the sentence. If there can be any validity in the second sentence, it must be because the first sentence is legally annulled or revoked, and made entirely void. How far does the power of the court in this respect extend? It seems to have been settled by practice and by authority, both in this country and in England, that during the term the court has power over its unexecuted entries or judgments, and may revoke, alter or substitute new decrees or entries in place of those before made or entered and not executed, both in civil and criminal cases. If, for instance, a default is entered in a civil suit, and a special judgment is ordered and entered on a day before the end of the term, and also that execution issue accordingly, it seems that, before the execution is actually issued, the court may revoke and strike out the entry and leave the case without any special entry. But if an execution had been duly issued, and if a levy had been made or commenced, it would clearly be beyond the power of the judge to annul the record by ordering the clerk to erase the entry. So in a Brown v. Rice. criminal case, so long as the sentence remains entirely unexecuted in any part, and no execution of it has been attempted or made, it has been held that it might be revoked, and another sentence be substituted. Commonwealth v. Weymouth, 2 Allen, 144. Chief Justice SHAW, in Stickney v. Davis, 17 Pick. 169, says, when speaking of a judgment in a civil case: "Where it clearly appears that no action has been had on the judgment, or the execution, if one has been issued, has been returned to the files unexecuted, and where the rights of third persons cannot be affected, there seems to be no reason why the same thing (as an entry of a judgment nunc pro tunc) should not be done by vacating the entry of judgment, and bringing the action forward. This ought to be done with great caution, and with strict regard to the rights of others." These cases certainly are as strong for the respondent as any that can be found, and recognize the right of the court to go as far, at least, as we can find either reason or authority for going. But they stop at the point of execution, and clearly express or imply, that, after execution or warrant issued and executed, this power of summarily changing the record, or judgment, or sentence, is at an end. In this case the warrant had issued, had been executed; the prisoner had been under sentence, and in prison, under the warrant, and had suffered nineteen days of confinement. This was a legal sentence, and was in process of execution, when, for some reason, doubtlessly one that the judge deemed sufficient, he was brought from the jail, and the former sentence was recalled and revoked and the new one imposed. If these proceedings were legal, it would seem that this prisoner must suffer punishment under two distinct sentences for the same offense. If the judge could annul the first sentence as to its legality, afterward, he could not annul or restore the nineteen days of imprisonment suffered under it. If now he is to be sent to the stateprison for three years more, not counting his time in jail under the first sentence, he certainly must suffer two distinct imprisonments under two distinct sentences, given at a considerable interval of time, for the same offense and under one indictment. We think that the sentence in question to the state prison was llegally imposed, and is void and cannot be carried out. We think the first sentence was legal and should be executed. Traub v. Milliken. TRAUB V. MILLIKEN. (57 Maine, 63.) Principal and agent - Sales by agent without disclosing principal. A foreign factor sold merchandise to the defendant, in his own name, and without disclosing his principal, and received his own check in part-payment therefor; Held, in an action by the principal to recover the price of the merchandise thus sold, that, in the absence of proof that the defendants knew of the representative character of the factor, the principal could not recover. ACTION of assumpsit to recover the value of sixty-four boxes of sugar. J. & E. M. Rand, for the plaintiffs. Shepley & Strout, for the defendants. TAPLEY, J. On the 3d day of January, 1867, the defendants purchased of one Hosea I. Robinson a quantity of sugar and paid therefor, in part by his own check which they held, and in part by cash paid for duties due upon the sugars. The plaintiffs now claim to recover pay of the defendants for the same, alleging that they are the owners, that Robinson was their agent, and that, being such, he had no power to sell and receive in payment therefor a debt of his own. From the evidence reported, it appears that Robinson was an importer and dealer in sugars; that, on June 27, 1866, the plaintiffs consigned to him for sale a quantity of sugar, a part of which is that in question; that, on the 3d of January, 1867, he sold sixtyfour boxes of the sugar to defendants at cash rates; that, at the time of sale, he did not inform the defendants who owned the sugars; that there was no agreement, except the ordinary one when sugars are bought for cash; that he was then "supposed to be in good credit," although, as it subsequently proved, he was in fact insolvent; that the check, which was received in part payment, was given two or three days before for the check of the defendants for an equal amount, and used by Robinson; that Robinson "had no special Traub v. Milliken. order from plaintiffs as to the mode of selling, but was to sell in the usual way and to hold the proceeds subject to plaintiffs' order.” Robinson, called by the plaintiffs, says "defendants have paid the value of these sugars in cash. Their check, given me at the time I gave them mine, paid for the sugar." The defendants contend that, in fact, the sugars were paid for in cash, as testified to by plaintiffs' witness; but the plaintiffs contend that the facts proved show this to be untrue. The view we have taken of this case renders the discussion of this question unnecessary. The plaintiffs are residents of Havana, on the island of Cuba; Robinson was, therefore, what is denominated a foreign factor. The case shows that he did not inform the defendants who were the owners of the sugars, and there is no evidence showing that the defendants knew that Robinson, was acting in the premises as agent for any one. The plaintiffs, by suing in this form of action, have acknowledged, or at least affirmed, the sale. The property in the sugars passed to the defendants. A payment was made by the defendants for the sugar. The only question is, whether the plaintiffs can recover pay again, assuming the payment to have been made as the plaintiffs say it was. In an early English case, Rabone v. Williams, 7 T. R. 360, Lord MANSFIELD, C. J., said: "Where a factor, dealing for a principal, but concealing that principal, delivers goods in his own name, the person contracting with him has a right to consider him, to all intents and purposes, as the principal; and though the real principal may appear and bring an action upon that contract against the purchaser of the goods, yet that purchaser may set off any claim he may have against the factor in answer to the demand of the principal. This has been long settled." This doctrine was affirmed in George v. Clagett, in 7 Term Rep. 359; 3 Smith's Leading Cases, 187. Many other English cases might be cited to the same point. In Sims v. Bond, 5 B. & Ad. 393, the rule is thus expressed by the chief justice: "It is a well-estabished rule of law, that where a contract, not under seal, is made with an agent in his own name for an undisclosed principal, either the agent or the principal may sue upon it; the defendant, in the latter case, being entitled to be placed in the same situation, at the time |