Dillingham v. Smith

Decided July 1, 1850

Supreme Judicial Court of Maine · decided 1850-07-01

Replevin for mill logs. This action was withdrawn from the jury and submitted to the decision of the court upon legal questions, no stipulation being made as to the allowance of damages. The case was argued at the last law term and continued nisi.

Decided 1850-07-01

Shepley, C. J.,

¶1orally.—The court has no power to make the assessment. Such matters belong to the jury, to be decided on testimony before them.

¶2No 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.

¶3Of 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.