Dillingham v. Smith , 32 Me. 182 ( 1850 )

Shepley, C. J.,

orally.—The court has no power to make the assessment. Such matters belong to the jury, to be decided on testimony before them.

No consent has been reserved, that the court shall fix the amount or send the question to a jury. No issue is made up, nor can the court frame one for that purpose. The defendants should have arranged for the damages at an earlier stage. They might have apprized the court that they desired an assessment of damages, so that the judgment should not have been entered, till the assessment was had.

Of the merits of the claim, we'express no opinion. As an individual I consider damages in such a case recoverable in a suit upon the replevin bond. Motion overruled.