Rogers v. Crombie , 4 Me. 274 ( 1826 )

Mellen C J.

delivered the opinion of the court.

Two objections are made to the verdict.

1. It is said the opinion of the judge who presided at the trial, was incorrect, by means of which the defendant was refused the advantage of tendering the bond in question and of having the same considered by the jury in mitigation of damages. In reply to this objection, we would observe, that if such an offer and claim on the part of a defendant can be considered admissible, the motion for the purpose must certainly be considered as one addressed merely to the discretion of the judge ; and, of course. one upon which his decision is final; and no more subject to revision by the whole court than a motion for the continuance of an action, or a common amendment of the declaration, or pleadings. The cases cited by the counsel for the defendant, only shew what is the course of practice in the English courts on this subject. The very mode of proceeding by a rule to shew cause, proves that the allowance to a defendant in the cases specified to bring property into court in an action of trover, in discharge of damages, is a matter of discretion ; and that it cannot be demanded as a right. At common law a tender, made after the commencement, of an action is not good; and- our statute of 1822, eh. 182, yelates only to a tender of money after an action is commenced ; and such a tender must be accompanied by a tender of all legal costs up to the time of making it. We therefore cannot sustain this objection.

2. In the second place it is contended that the instructions of the judge as to the rule of damages were incorrect. The bond in question was demanded of the defendant, and by him refused for reasons best known to himself ; and the plaintiff has thereby been unable to avail himself of its condition and enforce its payment. It appears also that the obligor has sold and conveyed to another person the property named in the condition ; and thereby disabled l*erself from conveying it to the plaintiff, and has also since removed out of the State. Thus the plaintiff’s prospects have been destroyed and he himself injured. The damages given by the jury are hot merely the. value of the bond, over and above the estimated expense of the plaintiff’s removal; or, in other words, the sum which the defendant may, as assignee, be able to recover of the obligor ; but the damages which the plaintiff has sustained by the misconduct of the defendant in withholding the bond, and thus depriving him of all the benefits he expected, and might have received from it. The evidence in relation to all these facts, was submitted to the jury ; and they have deducted more than half the value of the land, conditioned to be conveyed. Under these circumstances, we think the defendant has no reason to complain ; and that nó more than justice has been done to. the plaintiff. We are all of opinion that there must be

Judgment on the verdict.