
    Forbes's administratrix vs. Scoby.
    
      November 30th.
    
    In covenant, upon plea of plene admimjlta-vit, if the jury find damages for the plaintiff, it does not conclude the if. fue of aflets vei
    
    The jury mufc expreflly find aflets to the va« lue of the damages, or if not to that amount, of what value —'Accord* % Waíh. 30I.
    On iuch iflue the plaintiff is bound to prove his damages— I Shower —Salks 296— BulLN. P.140*
    May have an inquifmon and take judgment for aflets, quart* do acciderint.
    The chief juftice did not fit in the caufe.
   OPINION of the Court, by

Judge Bibb.

— -Scoby declared in case against the administratrix of Hugh Forbes, dec’d. on a writing, not under seal, whereby said Hugh had agreed to convey to said Scoby 25 acres of land, by the 15th of Jane ensuing the date of the writing, and assigned a breach in the lifetime of said Hugh. To this the administratrix pleaded plene admin-istravit, and thereupon issue was joined. To the plea of no demand, &c. the plaintiff demurred, and the defendant joined in demurrer j which demurrer the court sustained.

A jury was sworn to try the issue joined, who found for the plaintiff that he had sustained damage, by breach of the agreement, to the value of £. 50, and thereupon judgment was rendered. But on the trial a bill of exceptions was tendered by the defendant to certain opinions given by the judges to the jury, on motions made on the subject of damages.

To this judgment the administratrix has prosecuted a writ of error.

The verdict of the jury is erroneous and insufficient, because it does not find that the administratrix had assets unadministered, belonging to and of the estate of her intestate at the time of his death, whereof to satisfy the damages aforesaid by them assessed, to the full value thereof, or if not to that amount, of what value the assets were. The verdict is not a response to the issue : nor can it be intended therefrom that the jury had found assets to the full amount of the damages assessed. For whether the administratrix had assets or not, the damages for breach of the agreement were the same; and the jury might well have assessed the damages, although they had found no assets. Although the plaintiff on this plea and issue was bound to prove his damages, yet, as to that part of the subject, the plaintiff might have had an inquisition, and have taken judgment for assets quando acciderint. From the finding of damages, therefore, in such case, the court cannot intend assets to the value of the damages ; the jury must expressly find, either assets to the whole amount, or ii not to that amount, of what value they were.

The instruction moved for, as well as the opinions expressed by the judges, on the subject of damages, were erroneous ; but the statement in the bill of exceptions is too imperfect to enable this court to say what instruction ought to have been given.

Judgment reversed.  