Poinset v. Newbold

2 Del. Cas. 356

• Court: Court of Chancery of Delaware
• Decided: August 15, 1817
• Status: Published

Opinion

The Chancellor.

The complainant may surcharge and falsify, but the onus probandi rests on him. This onus probandi will not be discharged or performed by general surmise or conjecture of witnesses; there must be direct proof to satisfy the Court that he has either charged articles improperly or omitted credits to which the party is entitled. No such proof is here given. The improvements which it is alleged the complainants, or their father, T. Poinsett, made are not properly made out. There is Newbold’s letter promising to pay for improvements, and Stephenson’s testimony that Poinset cleared and grubbed about forty acres, and that this land was afterwards let to other persons. But the exact quantity of land cleared is not proved; but more especially the value. Was this clearing and grubbing worth one dollar or five or ten per acre? What was the nature of this clearing and grubbing? Besides, the Poinset’s perfectly knew of this work, if it was done. They produced here Newbold’s letter, and consequently had entire knowledge when the bond was given of everything touching this improvement. At no rate can I fix upon any value or quantity. Therefore the party here fails.