Opinion
Fall Sessions, 1843.
Rogers, for plaintiffs.
Gray, for defendants.
THIS was an action against the defendant John Ruth and the others, his sureties, as collector of road taxes for W. C. Creek hundred, New Castle County.
The declaration was on a lost bond; and the defendant suffered judgment to go by default, and an order was made in the nature of a writ of inquiry to charge the jury attending at this term, to inquire of the damages, c.
The jury were sworn "well and truly to inquire, and true inquisition make and return, of the damages and costs sustained by the plaintiff on occasion of the breaches of the condition of the writing obligatory assigned in the declaration in this cause," c.
Mr. Rogers opened to the jury, and stated that as a judgment had been rendered by default, he should proceed to show the damages without any proof of the bond, or of its loss; as the judgment by default admits the cause of action.
Mr. Gray, who now appeared for the defendant, insisted that the plaintiff was hound to produce the bond, or prove its loss. (2 Saund. Pl. Ev. 90; 3 Term Rep. 301.) The Court thought there was no analogy between this case and the one cited of an action on a promissory note, which is of itself evidence of the debt, and therefore, its production necessary. But this is an action on a bond with a collateral condition; which, if produced, would have no effect in proving or disproving the matter now to be tried, which is the amount of damages occasioned by breach of the condition of the bond. This breach must be proved independently of the bond; the existence of which is admitted by the judgment by default, which admits a cause of action; to what amount must be the subject of proof.
The jury made and returned an inquisition in the case, assessing the damages and costs at $529 61.