63 Me. 143 | Me. | 1873
The plaintiff brought trover against the defend-
ant for three promissory notes signed by the defendant and made payable to the plaintiff. He claimed and offered testimony to show that the defendant wrongfully got them from his possession without paying them on a certain occasion when he presented them for payment. The defendant brings the case before us upon exceptions and upon a motion to set aside the verdict against him.
The causes alleged in this motion include, besides the customary assertions, that the verdict is against law, evidence and the weight of evidence, certain complaints respecting the manner in which the judge presiding at the trial dealt with the facts and testimony in the ease in his charge to the jury.
A careful examination of the evidence and charge, both of which are reported in full, satisfies us that the defendant has no just cause
We see no reason to believe that the suggestions of the presiding judge, of which the defendant complains, misled the jury, or even that they affected the result. The motion cannot be sustained.
Hereupon, before proceeding to consider the exceptions filed in this case we remark:
I. In our practice complaints of the rulings, opinions or directions of the justice presiding at nisi prius, as to matters of law, must be presented in the form of exceptions, unless the case is reported by him for the consideration of the full court. First Parish in Brunswick v. McKean, 4 Maine, 508.
II. Objections to his proceedings in other respects, or to his comments upon the evidence, or to his expressions of opinion as to matters of fact, cannot of themselves be deemed sufficient reasons for setting aside a verdict. Palmer v. Pinkham, 37 Maine, 252; Phillips v. Kingfield, 19 Maine, 375; Gilbert v. Woodbury, 22 Maine, 246; Dyer v. Greene, 23 Maine, 464; Frankfort Bank v. Johnson, 24 Maine, 490; Hayden v. Bartlett, 35 Maine, 203.
III. Anything in his remarks or instructions to the jury, which does not constitute a valid ground of exception, cannot be made available under a motion to set aside the verdict unless it appears upon a report of the whole case that the verdict was manifestly wrong and that the suggestions of the judge may have misled the jury. Loud v. Pierce, 25 Maine, 241. This condition seems to
IV. To misstate material facts in a charge to the jury, or to charge upon facts not proved, nor admitted, nor fairly inferable from the evidence in the case, — if the attention of the judge is called to the misprision by the counsel of the losing party in season to have the error corrected before the case is given to the jury, — would be good ground of exception or for setting aside the verdict if the case was presented on report. Pierce v. Whitney, 22 Maine, 113.
V. But suggestions as to matters of fact or expressions of opinion by the presiding judge with regard to the state of facts in a case, so long as the determination of the facts is not withdrawn from the .jury are not subjects of exception. Phillips v. Veazie, 40 Maine, 97.
With these rules in view, looking now at the exceptions here filed, we find that the only point raised in them which is insisted on. in argument, is the right to instruct the jury, that if they found a conversion it was their duty to take into consideration the defendant’s ability to pay his debts at the time of the conversion in estimating the damages. Herein we see no error.
A debtor cannot, after wrongfully depriving his creditors of the evidence of his indebtment, mitigate the damages to be recovered against him for this act by setting up his own worthlessness. The sum which the defendant himself realizes by the act of conversion, must surely be the lowest measure of damages. If a man takes up his own paper in that manner, the amount which he would have been legally bound to pay to retire it regularly, is surely the amount which he has realized by its conversion. The remark-made by the presiding judge in refusing the request was doubtless correct; and the distinction thereby recognized between the position of a man who wrongfully converts securities upon which he-is himself liable, and him who converts securities outstanding: against third parties (which may be of more or less value according to the ability of those parties to pay) is just and sound. Nor is there anything in the authorities cited by defendant’s counsel to
The several matters mentioned in the exceptions as having been offered by the defendant in testimony and excluded were all plainly inadmissible. As we have already seen the assertions that the judge charged upon facts not proved, or misstated material facts to the jury, if they had had any foundation in fact, should have been presented in the form of exceptions. Not being so presented they . are not regularly before us. But we do not see that they have . any substantial basis. Motion and exceptions overruled.