Wilkins v. Woodfin Administrator

5 Munf. 183, 5 Va. 183, 1816 Va. LEXIS 30

Opinion

Monday, October 28th, 1816,

Judge Brooke

pronounced the following opinion of the Court:—

The Court is of opinion that the deposition of one witness, aided by the circumstances in this case, outweighs the answer of the defendant. The bill alleges that, in an exchange of bonds, a mi3(ake was made in the calculation, to the prejudice of the Appellant, ninety-six pounds, four shillings and two pence. The defendant, not positively denying that allegation, evades it by stating that the bonds referred to in the bill were offered to him by the Appellant, and that he accepted them. The account, which is set out in the bill, discloses the fact that he was credited ninety-six pounds, four shillings and two pence more (including the thirty-nine pounds, fourteen shillings and four pence, claimed by the Appellant, as compensation for the exchange,) than the Appellant; yet he omits to notice it in his answer, and only insists, that he was to have a reasonable advantage in the exchange. That ninety-six pounds, four shillings and two pence was a reasonable advantage, is not pretended, and is a result totally inconsistent with the defendant’s own account of the circumstances that preceded the exchange. If the deposition is let in, no doubt can remain. The witness déposes that the defendant admitted that he discovered the mistake before he left the Appellant’s house; that he saw the account, and discovered the mistake before the Appellant; and that he would not inform him of it, because the Appellant had treated him ill. On these grounds the said decree is erroneous. The same is therefore reversed, with costs. And this Court proceeding &c. it is fait her dccv; <’ and ordered that the A ipellee, out of the estate of his said i !estate in his hands to be administered, do pay to the Appellant ninety-six pounds four shillings and two pence, with interest thereon, to be computed after the rate of six per centum per annum, from the 7th day of December, 1807, until payment, and also his costs by him in the said Court of Chancery expended.