Smith v. Putney , 18 Me. 87 ( 1841 )

The opinion of the Court was drawn up by

Emery J.

The direction of the Judge, as to the execution and delivery of the mortgage, in our judgment, is completely sustained by , the cases in 7 Greenl. 241, Brinley et al. v. Spring; 3 Cowen, 166, Bissel v. Hopkins; 15 Maine R. 373, Ingraham, v. Martin.

The Court consider that the inquiry made of the jury was correct. It would seem to be a necessary step, in order to prevent injustice, and to enable the Court, in a sensible and proper manner, to determine whether the verdict be conformable to legal principles, provided the inquiry be made at the timo of giving in the verdict. Hix v. Drury, 5 Pick. 296; Pierce v. Woodward, 6 Pick. 206; Little v. Larrabee, 2 Greenl. 37.

The disclosure being rightfully made by the jury, the most important question is, whether there is brought before the Court sufficient to warrant judgment on the verdict, which is for nine hundred dollars. The jury stated, that “ they found the actual value of the property taken, to be the amount of the notes and interest, eight hundred and twenty-four dollars, and that what is over that amount to make up the nine hundred dollars, they considered damages of costs the plaintiff had been put to.” The jury were directed, if they found a verdict for the plaintiff, that they should give him the value of the property mortgaged, and taken by the officer, as it was then situated, at the time of taking. We consider that this was the proper instruction, by which the jury should have been governed. The verdict is therefore wrong, and must be set aside, unless the plaintiff will release the excess between the eight hundred and twenty-four, and nine hundred, dollars.