Thompson v. Wiley , 20 Me. 479 ( 1841 )

The opinion of the Court was by

Shefley J.

No copy of the amendment is furnished. The inference to be drawn from the copies furnished, and from the arguments, is, that it presented in a different manner the same cause of action, by setting forth the particular facts by which the defendant became liable to pay the officer’s fees ; and it might well be permitted in the discretion of the Court. The defendant procured the plaintiff to attend as a constable, for the purpose of performing the service for which he now claims to be paid, and he did perform it, acting in that character, and that is sufficient to enable him to recover of the defendant the fees to which he was by law entitled.

The return upon the mittimus under date of the 22d of Dec. stating that he has arrested and committed the body of Car-kin, does not necessarily imply that he had not done it before that day. And even if the officer had been guilty of any impropriety in detaining him for a day or two, the party injured only could complain, and it would not deprive the officer of his right to recover his legal fees of the person who employed him. It does not appear that the defendant suffered any injury by the neglect or misconduct of the officer, and if he has, he will be entitled to a recompense for it.

Defendant to be defaulted,.