Hayden v. Bartlett , 35 Me. 203 ( 1853 )

Howard, J.

— A party cannot except to instructions given at his request. Those upon the subject of proof of conversion, in this case, were desired by the defendant, and they were clearly correct.

The remarks of the presiding Judge, accompanying those instructions, had reference to the state of facts assumed, or appearing at the trial, and could not have misled the jury, or in any manner affected the rights of the defendant unfavorably. If considered as an expression of his opinion, or a commentary upon the facts, it embraced no directions to the jury, and afforded them no rule of action, and is not subject to exceptions. It was not any opinion, direction or judgment, or any order, ruling, decision or decree of the Judge, involving a question of law or equity, to which exceptions could be alleged. R. S. c. 96, $ 17; Stat. 1852, c. 246, <§> 6, 8, 11; Clapp v. Batch, 3 Maine, 216; Gilbert v. Woodbury, 22 Maine, 246; Bank v. Johnson, 24 Maine, 490; Loud v. Pierce, 25 Maine, 233; Carver v. Jackson, 4 Peters. 80.

The measure of damages in trover, is ordinarily, in this State, and in the United States generally, where there has been no restoration, the value of the property at the time of the conversion, with interest from that time. The instructions appear to have been in accordance with this well settled rule, and were not erroneous. Greenfield v. Leavitt, 19 Pick. 3; Johnson v. Sumner, 1 Met. 179; Baker v. Wheeler, 8. Wend. 505; Stevens v. Low, 2 Hill, 132.

Exceptions overruled.

Shepley, C. J., and Tenney and Appleton, J. J., concurred.