Isler v. Grove , 8 Va. 257 ( 1851 )

Allen, J.

delivered the opinion of the Court.

The Court is of opinion, that as the accuracy and credit of the testimony relied upon to sustain the items of the master commissioner’s report, which were excepted to in the eight exceptions filed by the appellants to said report, were impeached, an issue should have been directed, as a jury with the witnesses before them would have been better enabled to test their accuracy and weigh their credit than a commissioner or the Court. The case too from the character of the claim was peculiarly proper for an issue; for although it was competent for the appellees to make the alleged profits received and made by the guardian from the use and sale of the timber taken from the ward’s estate a matter of account; yet the extent of the charge on this account, if any was proper, depends upon estimate, and is in the nature of unliquidated damages, and therefore should have been submitted to a jury. The Court is therefore of opinion, that the decree is erroneous, and the same is reversed with costs. And the cause is remanded, with instructions to direct an issue to ascertain and try whether any timber not accounted for by the appellant in his accounts rendered, was taken by him from the lands of the ward, and sold or converted to his own use ; and what sum would be a proper charge against the guardian for such timber so taken and sold or converted to his own use.

Decree reversed.