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Mellen C. J. It is admitted that the certificate which the defendant signed as town clerk was false; though it appears he was not aware of it at the time ; and that a fraud was practised upon him by Scammon. Still, as a certifying officer,he must be answerable to the party injured by such false certificate ; whether he signed it fraudulently, or through negligence in not examining the x*ecords and ascertaining the fact which he ought to certify. — The plaintiff is therefore entitled to maintain the present action ; and the only question is, what is the measure of damages.
The plaintiff contends that as he secured by attachment on the mesne process against Scammon, property sufficient to satisfy the demand against him; and as Scammon died several years since, and, according to the parol evidence in the case, insolvent, he is entitled in this action to judgment against the defendant for the amount- of the full demand, which, it is alleged, is now lost to him. As no administration has ever been granted on Scammon1 s estate, we have no legal means of knowing whether his estate is insolvent. — Such insolvency cannot be proved by parol; — nor can any thing short of a commission of insolvency be competent proof of the dissolution of an attach
*12 ment on the mesne process against the deceased, according to the provision of the 32d Sect, of the act of 1821, ch. 60, and-to the case of Rockwood v. Allen, Exr. 7 Mass. 254.This principle being applied to the present case, it stands on the same ground as it would if Scammon were now living; and how could it then be contended that the plaintiff has lost the benefit of his attachment and the amount of his demand ? — lithe cause had been finally decided at the April term, and in consequence of the defendant’s false certificate judgment had been rendered in favour of Scammon, the plaintiff in this action would be entitled to full damages — noihing less would amount to an indemnity. — But the only damage appearing is this, that in consequence of the false certificate produced at the trial in April 1818, the cause was continued to September term following, to obtain proof of its falsity. — This was a delay and a damage to the plaintiff; for which he is entitled to the damages incident to such delay. — If Scammon had not died before September term the cause would probably have been finally disposed of-at that term. — But it has ever since been continued for want of an administrator on the estate to answer to the suit and defend it. — The defendant is not answerable for the death of Scammon: nor for the delay occasioned by that or any other cause, since existing. — On these principles the verdict is incorrect and must be altered so as to stand for the damages occasioned by the delay and. one continuance of the action. — These damages are composed of counsel fees paid at the April term by the plaintiff; the. travel and attendance of himself and his witnesses at that term, and the expense of obtaining them. — As soon as the counsel have ascertained the amount of these sums, let the verdict be reduced to that amount and judgment be entered thereon.
Document Info
Citation Numbers: 2 Me. 8
Judges: Mellen
Filed Date: 4/15/1822
Precedential Status: Precedential
Modified Date: 10/19/2024