Call v. Barker , 28 Me. 317 ( 1848 )

Shepley C. J.

— In a suit upon a bond of this character, ■under the provisions of the statute of 1848, (c. 85, ■§, 2,) entitled “ an act additional for the relief of poor debtors,” the question of damages becomes an important one. The actual damage is the loss suffered by the non-performance of the condition of the bond, and not the damages occasioned by the particular cause which produced a breach of the condition. Suppose the oath to have been taken before two justices not legally selected, this would not be a performance of the condition, but the amount of damages would not be determined by the amount of the injury sustained by the want of conforming to the law in the selection, but must be assessed on proof of the ability of the debtor to pay. The amount of damages would not be confined to the loss sustained by the illegal selection of the justices, but would be estimated by the ability of the debtor to have made payment of the debt, or some portion of it.

In the present case, any legal proof, going to show the ability of the debtor to have paid the debt, or a portion of it, was admissible, and should have been taken into consideration by the jury in the assessment of damages.

As the instructions of the presiding Judge limited the proof of damages to the value of the note disclosed by the debtor, and not appraised, the exceptions must be sustained and a new trial granted.