Torrey v. Berry , 36 Me. 589 ( 1853 )

Tenney, J. —

The exceptions are attempted to be sustained on two grounds. — First, that after the return of an officer, upon the execution against the'debtor, was introduced to prove the demand for the personal property disclosed, of a debtor, and his refusal to deliver it, dated January 6, 1851, it was incompetent to show, that it was at a different time. — Second, that the instructions touching the damages requested, and withheld, were correct, and those given erroneous.

1. It was necessary for the plaintiff’s recovery upon the land to show a'demand of the propeity within thirty days after the disclosure, and a refusal, by an officer, having the execution, and while it was in force. It was not necessary, that the evidence of this should be in an officer’s return. Consequently, if from other evidence, it was satisfactorily proved to the jury, that there was a mistake in the date, they would be authorized to treat it as an error, and render their verdict upon the truth of the case. It wag competent for the plaintiff to introduce the documentary and parol evidence upon that point, which was objected to by the defendants, and the whole was proper for the consideration of the jury.

2. The property demanded by the officer, had been specifically disclosed by the debtor, as owned by him. It is not shown, that the plaintiff ever saw it or knew where it was to be found. No evidence of the value of these articles was introduced by either party, excepting so far as the name of each and the quantity of some of them would imply.

The Judge was requested to instruct the jury, that the burden of proof was on the plaintiff to show their value. And as there was no testimony on that point, he was not legally entitled to recover any thing; and if anything, nominal damages only. This request was not granted, but the jury were instructed, that they could render a verdict for such damages, as, from the whole testimony in the case, they might believe the plaintiff was entitled to recover.

If a breach of the bond in any case is proved, when there has been a disclosure before two justices of the peace and of the quorum, the damages are not restricted necessarily to the value of the property, which the plaintiff’ has been wrongfully deprived of by the debtor, as he has proved it to be, or as the jury shall find that value under all the evidence adduced ; but the amount assessed shall be the real and actual damage, and no more; and any legal evidence upon that point may be introduced by either party. The instruction given was not inconsistent with this provision, and those requested were properly withheld. Exceptions overruled.

Shepusy, C. J., and Rice and Hathaway, J. J., concurred.