Thurlough v. Chick , 59 Me. 395 ( 1871 )

Kent, J.

This case was formerly before the court, and is reported in 56 Maine, 228, and the agreed facts in that case are put in as part of this case. It was decided, on the former hearing, that the defendants were liable on their bond for their one-half of copart-nership property. The only question remaining is the amount of damages. It was agreed, by the conclusion of the case formerly before the court, that “ if the court should be of opinion that defendants are liable for one-half of the copartnership property, the damages are to be assessed by the jury, otherwise the plaintiff to become nonsuit.”

When the case came up for a hearing on the question of damages, the plaintiff put in as evidence the records of the court of probate, showing a settlement and decree of that court, charging the executor with a balance of @4,318X40?T due from him. This was the only evidence offered by either party. The defendants contend that, although this evidence of the arnouht due is legally admissible, yet that under the agreement in the former report, it is not conclusive, and that they have a right to have the amount determined by a jury.

We do not understand that agreement fo mean anything more than that the case is to stand for trial in the usual manner, subject to the same rules of evidence as other cases. When the case came ■ on for trial, the plaintiff put in what he considered legal and sufficient evidence, viz., the records of the probate court. The defendants had a right to offer any evidence they thought pertinent. Or they might have had a verdict of the jury, under the direction of the court, and have taken exceptions to any ruling. But they offered no evidence, except “the agreed facts at the former hearing.”

The counsel, however, goes further and contends that the agreement that “the damages are to be assessed by the jury,” means that all the questions determined by the probate court, respecting the settlement of the account, are to be opened -and passed upon by the jury, as if no such decree had been made.

As before stated, we do not see any reason for giving such extended meaning to these words. We think the case comes within the well-established doctrine.in this State, that the decree of the court of probate, allowing the account of an' executor and decreeing its payment is conclusive upon him, unless appealed from to the supreme court of probate. Pierce v. Irish, 31 Maine, 254; Parcher v. Bussel, 11 Cush. 107.

Judgment for plaintiff for the penalty of the bond, and execution to issue for $4,381", and interest from date óf the writ and costs.

AppletoN, C. J.; Cutting, Walton, Dickenson, and DaN-poRth, JJ., concurred.