Waterhouse v. Gibson
4 Me. 234
Me.
1826
Check Treatment
Mellen C. J.

delivered the opinion of the court, at the ensuing November term in Cumberland.

It is not necessary to decide whether the testimony as to the cost of the petition for review was properly admitted ; nor whether, upon the evidence in the cause, the question of domi-cil should have been left to the jury ; because, on another ground, we are satisfied that the exceptions must be sustained, and a new-trial had. We think the instructions of the judge to the jury on the question of damages were incorrect. Though a review has been granted, because the present plaintiff had no notice of the suit till after the judgment was rendered, yet it does not appear *236that he did not justly owe the debt be was sued for. The review was granted in October 1821; but a writ of review has never been sued out. From these facts we have no reason to presume that any injustice has been done by the judgment in regard to the damages recovered. The conduct of the officer, however, cannot be justified; and he is liable in damages to some amount. But we can see no reason for his being liable to the costs attending the application for review. They could not be taxed against the original plaintiff, until after a successful trial on the review, and a total or partial reversal of the judgment; and there is no reason for maldng the officer chargeable with them, on the facts before us, because, according to these facts, the petition for review may have been prosecuted, and the costs incurred, for no good purpose, and with no good reason. Should it appear on the trial that the debt was not due, the plaintiff ought to recover of the defendant the amount of the judgment; — but if due, he may be entitled to recover the costs of suit before the justice. At any rate the exceptions are sustained, and there must be a new trial at the-bar of this court.