Halkerstone's v. Hawkins , 1 G. & J. 437 ( 1829 )

Buchanan, Ch. J.

delivered the opinion of the court.

The condition of the bond on which this suit was instituted is, that Hawkins, the defendant, his executors, &c. “ shall exhibit all the papers concerning and touching the estate of the late William Halkerstone, deceased, to Humphrey Barnes, Esq. who is mutually appointed by the above parties, to settle said estate, and •Strike a balance, if any, and shall also pay or cause to he payed ¡such balance, if any, to the above Robert Halkerstone, his .heirs or assigns,”, &c.

The plea is a plea of general performance. The replication .assigns as a breach of the condition'of the bond, that Hawkins, •the defendant, did not exhibit all the papers concerning and touching the estate of William Halkerstone, deceased, to Humphrey.Barnes, at any time previous to the impetration of the writ, although often requested, &c. pursuing the terms of the condition, to which there is a rejoinder by the defendant, that he did exhibit all the papers concerning and touching the estate of William Halkerstone, deceased, to Humphrey Barnes, previous to the impetration of the writ, &c. and issue.-

In this state of the pleadings, the parties went to trial, when the plaintiff offered in evidence to the jury, the inventory of the personal estate of William Halkerstone, deceased, which had been'returned by the defendant, the administrator, and was recorded in the Orphan’s Court of Charles County, amounting to five hundred and thirty-four pounds nineteen shillings and sixpence, which was objected to by the counsel for the defendant and rejected by the court as inadmissible.

It does not appear why this paper was not permitted to go to the jury, it was made out and returned by the defendant himself to the proper office, it is a paper concerning and touching' the estate of William Halkerstone, deceased, necessary to the settlement of that estate, and one which by the condition of the defendant’s bond, should have been exhibited to Humphrey Barnes.

The issue joined by the parties in the pleadings presented to the jury the question, whether the defendant had exhibited to Humphrey Barnes all the papers concerning and touching the-estate of William Halkerstone, deceased; the affirmative of which issue being held by the defendant, the burden of proof was imposed upon him; and in the absence of proof to sustain the issue on his part, it became necessary for the plaintiff, who sesuit was brought for the recovery of damages sustained by reason of the breach assigned in the replication of the condition of1 the bond, to offer such evidence to the jury as would enable them to ascertain the amount of damages that he was entitled: to recover.

And as the amount of the personal estate of William Ilalkerstone, deceased, which had not been settled up, (to procure the-settlement of which was the object of the bond,) was necessary to be shown in order to arrive at the damages proper to be: recovered, the inventory regularly returned by the defendant himself, the administrator, would seem to have been not only air-important, but an essential link in the chain of evidence necessary to the ascertainment of that amount.

It did not lay in the mouth of the defendant who as administrator, had himself prepared and returned it under the requisite’ sanctions to the proper office, to object to the admissibility of it, and perceiving no reason why it should have been rejected. We think the court below erred in not suffering it to go to the-jury, and that having thus thrown out important testimony offered by the plaintiff, for the purpose of showing the damages sustained, and which was pertinent to the issue joined in the cause •, that court also erred in instructing the jury, “ that the plaintiff having failed to give testimony to prove the amount of damage, they could only give a verdictforjiominal damages.”

JUDGMENT REVERSED AND PROCEDENDO AWARDED.