Waterhouse v. Gibson

• Decision Date: 01 May 1826
• Citation: 4 Me. 234
• Parties: WATERHOUSE v. GIBSON
• Court: Maine Supreme Court

4 Me. 234

WATERHOUSE v. GIBSON

Supreme Judicial Court of Maine, Oxford

May, 1826

THIS was an action of the case against the defendant, who was a deputy sheriff, for making a false return upon an original writ; and it came up to this court upon exceptions taken to the opinion of the court below. The material facts stated in the exceptions were these:--

Waterhouse who had been a trader in Brownfield, in this county, removed from that place to Parsonsfield, in the county of York, about the first day of August, 1821, shutting up his store, and the house he had just left; but was occasionally at Brownfield which was only thirteen miles from his new residence, to settle his accounts and close his business, on different days, for several weeks afterwards. About four weeks after his removal, the defendant, having in his hands, for service a Justice's writ against Waterhouse, put the summons into some part of the house from which he had removed, and which was then uninhabited, and made return of a nominal attachment of property, and that he had left a summons at the last and usual place of abode of Waterhouse, in Brownfield. The present suit was for the falsehood of this return, the plaintiff alleging that he had no such place of abode, of which the defendant was well knowing, and that the return was fraudulently made. It appeared further that judgment was rendered in that suit against the present plaintiff by default, for $ 6,05 damage, and $ 2,94 costs; he having no knowledge of the pendency of the action; --that he afterwards applied to the court of Common Pleas for a review, which was granted at October term 1821, but the writ of review had not been sued out; and that at the trial in the court below the plaintiff offered a witness to prove the amount of the expenses he incurred in obtaining the review; to the admission of which the the defendant objected; but the testimony to that point was admitted by the court. There was some evidence offered by the defendant to shew that the plaintiff had not changed his domicil. But upon the whole evidence Chief Justice Whitman instructed the jury that the plaintiff, at the time of the service of the writ, had so changed his residence, that the service in that manner was illegal, and the return thereof false; and that they ought to return a verdict for the expenses of the review, as well as for the amount of the judgment rendered against him; which they accordingly...