Begg v. Whittier , 48 Me. 314 ( 1861 )

The opinion of the Court was drawn up by

Appleton, J.

In the English practice, upon default, the plaintiff is entitled, as of right, to a writ of inquiry, and an assessment of damages by a jury, unless he consents that they be assessed by a master or a prothonotary appointed by the Court. Blackmore v. Flemyng, 7 T. R., 442. The defendant, having suffered default, has no such election. He has no right to a jury to assess damages. Price v. Dearborn, 34 N. H., 482.

In our practice, where the amount depends upon computation, the damages are determined by the clerk. The theory of the law, however, is, that this is done by the Court. It is therefore the duty of the Court, in cases of not mere computation, to give judgment for such damages as they shall find the plaintiff has sustained, unless the plaintiff shall move to have a jury to inquire into damages, in which case judgment is to be entered for such damages as they shall assess. Howe’s Practice, 226; Crommett v. Pearson, 18 Maine, 344. The default merely admits the fact of liability as set forth in the declaration, not the amount of damages alleged to have been sustained. If the defendant be defaulted, the Court assess damages, unless, for special reasons, they order an inquiry by a jury. Bowman v. Noyes, 12 N. H., 302; Willson v. Willson, 6 Poster, 240; West v. Whitney, 6 N. H., 314. If not done by the Court, it may be done by one of the regular juries at court. Chase v. Lovering, 7 Foster, 295. If not claimed by the plaintiff to be done by the jury at the time, the right to an assessment of damages by them Is waived. The only question submitted to the jury is the amount of damages. It seems, too, that the Court may appoint a master, or assessor, to whom the assessment will be referred, and his report, being accepted, or adopted, by the Court, fixes the amount for which judgment is to be rendered. Price v. Dearborn, 34 N. H., 486.

Where, after a default, damages are assessed for the plaintiff, either by the jury or the Judge, in open Court, and the Judge admits illegal testimony, it seems, the party aggrieved may file exceptions to such admission and bring the question before the whole Court. Storer v. White, 7 Mass., 448.

Exceptions sustained.

The defendant to be heard in damages before the Court.

Tenney, C. J., Rice, Goodenow, Davis and Kent, JJ., concurred. '