524

2.

bond with other sureties. The last bond is valid and relates back to his appointment as guardian; and the sureties in the first bond are discharged; and are not necessary or proper parties to a bill by the ward against the guardian and his sureties for the settlement of his accounts.

Same-No Allowance for Support and EducationLiability for Interest.*-The guardian not having been allowed anything for the board, clothing and schooling of his ward, under the circumstances of this case should not be charged with interest upon the small amount of the money of his ward in his hands.

Branson, 22 Gratt. 364. But whatever may have been the measure of the relief to which they would have been entitled in a court of equity, under the said 4th section, a question which it is not necessary now to decide, they were entitled only to an election between the two remedies, and certainly had not a right to resort to both. They availed themselves of their legal remedy, by making their defence in the action at law upon the bonds. And the jury sustained their defence, by reducing the demand against them from its nominal amount of $5,193, to the sum of $3,000 in good money; for which This was a suit in equity in the Circuit latter sum, with interest from the 29th day court of Wythe county, brought in March of December 1863, they rendered a verdict; 1861 by David Cassell against Leonard G. and judgment was given accordingly. If Bailey, his former guardian, and Robert they were dissatisfied with the relief they Sayers, jr., and John R. and Henry W. obtained in the court of law, they Richardson, as the sureties of said Bailey, ought to have appealed *from the for a settlement of the guardian's account. judgment of that court. Instead of It appears that Mrs. Cassell, the mother of doing so, they did not even except to any the plaintiff, owned a small farm of about opinion given by the court in that action. one hundred acres, and some stock, on When the stay law was about to expire, which farm she lived with her three chiland the debtors apprehended that an execu-dren, two sons and a daughter. Previous tion would be issued against them upon the to 1852 she married Leonard G. Bailey; and judgment, they applied to a court of equity in November 1852 Bailey was appointed for relief, under the 4th section of the act guardian of the children. At this time of March 3, 1866, and obtained an injunction the plaintiff was about thirteen years old; to the judgment. In other words, having the other two were younger than the plainbeen once relieved in a court of law, they applied to be relieved again in a court of 526 *In November 1854, one of Bailey's equity-that is, for double relief. We think sureties requiring counter security, they had no right to such relief in a court Bailey executed another bond with other of equity. They only complain in their sureties. bill, that in the action at law, the debt was another bond with other sureties; and in In February 1856, he executed scaled to its true value, as of the date of February 1857 he executed a fourth bond the bonds, and not as of the time of their with the defendants as his sureties. This maturity, as, they say, should have been last bond seems to have been executed withdone, "by law and the decisions of the Su-out a previous rule upon him, or order, repreme court of appeals of the State." Now, it appears from the evidence in the cause, that the debt was not, in fact, scaled to its true value as of the date of the bonds; but the jury thought, that under all the circumstances, the fair value of the property sold, would be the most just measure of recovery in the action; and therefore adopted that principle as the measure of the recovery, in pursuance of the proviso contained in the first section of the said act of February 28, 1867. But whatever, and however erroneous, the principle adopted by the jury may have been, the judgment in the action at law cannot be questioned in this collateral way, but is conclusive until reversed by an appellate court.

tiff.

quiring him to give counter security.

that the last bond was not valid, and that Sayers having answered the bill, insisting the sureties in the second bond should be parties, a commissioner was directed to settle the guardianship account; and he made his report, in which he charged the guard

*Guardians-Allowance for Support and Education of Ward.—In Hauser v. King, 76 Va. 736, the court said: "But, in the second place, it is insisted that there should have been no allowance for support, because the committee testifies that he makes no charge. This is not like the case of a father called to account as guardian of his infant child. In such a case, as a general rule, and in the absence of peculiar circumstances warranting a departure from it, no allowance for support out of the ward's estate is made to the guardian, if of ability to maintain the ward because the law imposes upon the father the duty to support his child. The court, however, it is said. 'will look with liberality to the circumstances of each particular case and to the respective estates of father and children, and will authorize the income arising from the estates of infants to be applied to their support whenever, under all the circumstances, it appears to be proper.' Evans v. Pearce and others. 15 Gratt. 515, 516. See further, as to allowances to guardians, Armstrong's Heirs v. Walkup, 9 Gratt. 372; Griffith and others v. Bird and others, 22 Gratt. 73: Sayers v. Cassell and others, 23 Gratt. 525." See monographic note on "Guardian and Ward."

bonds.

ian with the sum of $345 18, as received the
10th of January 1855; and not allowing him 528
any credits for expenditures or commissions,
he stated the account by making annual
rests, and charging compound interest upon
the principal fund, up to the termination
of the guardianship in December 1860, when
the plaintiff attained the age of twenty-one
years, the whole amounting to $502 46, of
which $157 28 is interest. The commis-
sioner reported that he considered the serv-
ices of the ward rendered to the guardian,
were a full and ample set-off against all
and every charge for board, clothing and
tuition; and that he did not allow the
guardian commissions because he had not
settled his accounts annually before a com-
missioner, as the law requires.

Bailey excepted to the report: 1st. Because no account is taken of the necessary expenditures made by the guardian for the boarding, clothing and schooling of the plaintiff. 2d. Because no commissions are allowed. 3d. Because the guardian is charged with compound interest, whilst he ought not to have been charged with any. 4th. For improperly charging him with any balance. 5th. In allowing the labor of the *complainant as a set off to the amount expended in necessaries

527

for him.

From the evidence returned by the commissioner with his report, it appears that Bailey and his wife and her children lived on her farm in Wythe county until 1856, when the farm was sold and another was purchased in the county of Carroll, to which they removed. The plaintiff lived in the family and was treated as one of it, and he worked on the farm, when he was not at school. Bailey who was a carpenter, worked at his trade; and all the profits of the farm as also that of his labour, were expended in the support of the family, and they all including the plaintiff derived their support

from it.

by the said guardian. The other two subsequently *executed by him as guardian, &c., are void as statutory

The county court is a court of general jurisdiction; but prior to the statute authorizing it to appoint guardians and other fiduciaries, and to take bonds from them, had no power to do so. This case comes, then, within the rule "That if a special statutory authority be conferred on a court of general jurisdiction, the court, as to that authority, is a court of special jurisdiction, and the authority must be strictly pursued. Creps v. Durden, vol. 1, pt. 2, Smith's Leading Cases, p. 1073, 1095; Ranson v. Williams, 2 Wall. U. S. R. 313; Hollins v. Patterson, 6 Leigh 457. If jurisdiction is given by act of Assembly, the court cannot go beyond it. Delany v. Goddin, 12 Gratt. 158; Thatcher v. Powell, 6 Wheat. R. 119.

In taking the two last bonds, under ? 11 of ch. 122, Code of 1860, the court clearly exceeded its jurisdiction, and the bond of the 13th of November 1854 is the only valid and binding one in this case. The bill ought, therefore, to be dismissed.

If the above view of this case should not prevail with the court, it is respectfully referred to the following authorities to sustain the exceptions endorsed upon Commissioner Holbrok's report.

When a guardian has admitted by parol declarations, that he intended to make no charge for his ward's board, yet he ought not to be charged with interest on a sum of money received for his ward, unless such interest would exceed a reasonable compensation for board. Hooper v. Royster, 1 Munf. 119.

2. A guardian of infants is entitled to compensation for their support, though he may have promised their friends that he would not make any charge for it, and in fact kept no accounts against them. Arm

As to the value of the services of the 529 plaintiff some of the witnesses thought they were worth fifty cents a day, others thought they were worth his board and clothing.

strong's heirs v. Walkup, 9 Gratt. 372. *3. When it cannot be shown by the guardian the amount of advances made for the support of each child the guardian should have reasonable allowance for the support of the ward. Cunningham v. Cunningham, 4 Gratt. 43.

The cause came on to be heard on the 8th day of December 1861, when the court held that the bond executed by Bailey and the 4. Guardian keeps his wards in his family other defendants was valid, and that they and treats them as his children; but they were responsible to the plaintiff for what- are required to work as other children might ever might be found due upon a settlement be, though the condition of his family did of his guardian accounts; and overruling not require their services. The guardian the exceptions to the report, and confirming is to be allowed a reasonable compensation the same, decreed in favor of the plaintiff for their board and clothing, and he is not against the defendants for the sum of to be charged for their services. Arm$502 46, with interest thereon from the 17th of December 1860 till paid, and costs. And thereupon the defendant Robert Sayers Jr., applied to this court for an appeal; which was allowed.

Crockett, Blair and Caldwell, for the appellant.

strong's heirs v. Walkup, 12 Gratt. 608.

5. For the grounds on which an encroachment on the principal of a ward's estate will be justified-see 2d Lead. Cases in Eq. pt. 2d 163-169–170; in the matter of Boswick, 4 Johns. ch. R. 100.

Kent, for the appellee.

The 6th section of ch. 127, Code, directs The bond executed by L. G. Bailey, as the mode in which a guardian gives his guardian, &c., with M. B. Tate and A. S. bond: the 11th sec. ch. 132 provides for the Arnold as his sureties, on the 13th of No-mode in which a new bond may be given; vember, 1854, is the last valid bond given and the 12th of the same declares its effect.

In this case the bond sued upon is regular and in due form. No objection can be urged against it upon the ground that it does not, in form, comply with the requirements of the statute; and it is submitted, that the court in which it was taken, being a court of record, the action of the court in taking this bond was a judgment rendered upon a subject cognizable before it, and is conclusive, and cannot be questioned incidentally. Its *judgment is binding till set aside or reversed, though erroneous. Acts done and bonds taken by it bind the obligors and securities as well as principals. Gibson v. Beckham, 16 Gratt. 321, 6, 7, and 34; and the cases there cited; Hollins v. Patterson, 5 Leigh 437.

It is submitted that whilst the statute whether he shall or shall not have before points out the mode in which a guardian given a bond, or whether he shall have may be forced to renew his bond, it was given one with or without sureties, to give never contemplated he might not voluntarily before such court a new bond, in a reasoncome into court and upon his own motion able time to be prescribed by it, &c. But renew his bond. no such order shall be made, unless reasonable notice appear to have been given to such fiduciary, &c. But, surely it would be competent for the fiduciary to waive his right to such notice and come into court with his sureties, and execute a new bond, which would be as binding on him and his sureties as if such notice had been given. And the statute authorizes the court to make such order, "requiring a new bond to be given, when it appears proper from the report of the clerk or a commissioner, or on evidence adduced before it by a surety, or the representative of a surety for such fiduciary, or by any other person interested." And the court can perceive no reason why the bond shall not be binding upon the guardian and his sureties executing it, if they come before the court, in anticipation of such order, and dispensing with it, and execute the new bond, without the guardian being specially ordered thereto. His act of giving the new bond is a confession that the court may properly and lawfully require him to do it, and he would be thereby estopped from afterwards denying it. The court is of opinion, therefore, that the bond executed by the defendants, Bailey,

530

Every intendment will be made in favor of the validity of the acts of a court within the scope of its powers, whether those powers are limited or general; and when jurisdiction has once attached it will not be lost by an irregularity in the mode of executing it. Crepps v. Durden, vol. 1, part 2, Smith's leading cases, p. (top) 1073, 1075; Voorhees v. Bank United States, 10th Peters R. 449.

The appellee was thirteen years of age at the time appellant qualified as his guardian. If the income from his estate in the hands of his guardian was insufficient for his support, the law required the guardian to apprentice him. It never sanctions an encroachment upon the principal of the ward's estate, except the assent of the chancellor be first obtained; and then only to a limited extent and under very peculiar circumstances. For mere maintenance, even upon petition filed, it is very doubtful. In the matter of Boswick, 4 Johns Ch. R. 102 (top); Evans v. Pearce, 15 Gratt. 513; Myers v. Wade, 6 Rand. 444.

532

Sayers, and the two Richardsons, on *the 10th of August 1857, was lawfully executed, and is binding on them. The court is further of opinion, that by virtue of the 12th section of the aforesaid statute, the said bond relates back to the time of the qualification of the guardian, and binds the obligors for the faithful discharge of the duties of guardian by the said Leonard G. Bailey, from that time, as effectually as if it had been then executed; and that the sureties in the former bonds, and their representatives, upon the execution of the new bond, were discharged. And, consequently, it was not necessary, nor proper, that they should have been made parties to this suit.

It is submitted upon the proof that so far from the guardian supporting the ward, the reverse was the case; that the labor The court is further of opinion, that alperformed by the ward for his guardian though the guardian has admitted to the during the whole of his minority, the prop- friends of his ward that he did not intend erty acquired by him from extra labor per- to charge him board, he ought not to be formed for others, and from the generosity charged with interest on the sum of money of friends, was all appropriated by the he received for his ward during his minorguardian to his own use, and was more than ity; the guardian having kept him in his equivalent for any expense incurred by him family and treated him as one of his chilfor the ward's benefit. It is further sub-dren, boarding, clothing and schooling him, mitted, this case does not fall within the principle of Armstrong v. Walkup, 12 531 Gratt. 608, but rather within the spirit of Evans v. Pearce, 15 Gratt. 513; where the court says it will look with liberality to the circumstances of each case. ANDERSON, J.,delivered the opinion of

the court.

By section 11, of chapter 132 of the Code, (Code of 1860, p. 603,) the court, under the order of which any such fiduciary derives his authority, may order a guardian,

and he working for the family as one of the children. The court is of opinion, that under the circumstances of this case, it would be extremely harsh to disallow the guardian's account for board, clothing and schooling, and also to charge him with interest on the sum of money he received for

his ward. The interest does not exceed a reasonable compensation to the guardian, taking all other matters into the account. The court is of opinion, therefore, that the commissioner erred in charging the guardian with interest, and that annually com

2. Same-Confederate Currency-Scaling. The court
instructs the jury "that if they believe from the
evidence, the parties contemplated Confederate
money as the funds to be paid, the note falling due
since the close of the war, when Confederate 536
money was not current, and had no appreciable
value, they should find the scaled value of the
money at the time of the contract." It was error
to stop with this, but he should have added, that
in fixing the amount of the plaintiff's recovery
they were authorized to take into their considera-
tion the fair value of the land.

This was an action of debt in the Circuit court of Wythe county, brought in September 1865, by David Sexton, assignee of Jacob Miller, against Margaret Windell, administratrix of William Windell, de- the court. ceased, to recover the amount of a bond for $1,389, dated the 18th of July 1863, and pay able two years after date, with interest from it was in part payment of a tract of land that day deeded to Windell by Miller, and that it was payable in current funds when due. The defendant appeared and pleaded

the date. The bond stated on its face that

If such evidence was proper in that case, it is clearly so in this. It is only necessary, therefore, to refer to that decision as settling the law in all this class of cases, so far as the opinion of a bare majority of the court can have that effect.

given by Miller, stating the number of acres in the tract, and the price per acre stipulated to be paid. Why the deed and the bonds for the deferred instalments were not then executed, does not distinctly appear. The parties no doubt preferred the The learned counsel for the plaintiff in papers should be prepared by some more error, conceding the authority of that case, skilful hand. Whatever may have been the insists that the obligation in this is plain reason, the contract was a complete one and unequivocal in its terms, and the duty that day; its terms perfectly understood; devolves on the court of construing it ac- the price per acre, and the kind of currency cording to the manifest intention and to be paid fully settled. It is not reasonameaning of the parties. This, however, ble to suppose, in the absence of all evidoes not cover the whole ground. When a dence it is not fair to presume, that when written contract is to be interpreted, un- the parties afterwards met merely to execute affected by extrinsic evidence, it certainly the deed and the bonds, the purchaser, is the duty of the court to expound its pro- without the slightest consideration, agreed visions and ascertain its meaning. This to such an alteration of the contract as was done in Boulware v. Newton, 18 Gratt. might in all probability subject him to a 708; which was decided upon the language liability for three thousand dollars in a of the instrument exclusively; no parol sound currency, in addition to the five evidence having been adduced by either of thousand already paid in Confederate curthe parties. And the same duty would rency. The stipulation "to pay in current have devolved *on the court here, but funds when due," does not warrant any for the fact that both parol and docu- such conclusion. It may be fairly inferred mentary evidence was offered along with these words were inserted in the bonds to the bond, explanatory of its terms and guard against any possible liability for gold of the real understanding of the parties. By and silver coin. This is the view taken the common law, and under the statute, by this court in Meredith v. Salmon, 21 the case was peculiarly proper for the con- Gratt. 762, in which a somewhat similar sideration of the jury to determine whether question was involved; and I beg to refer the contract was to be performed in Con- to what is there said. for a more extended federate treasury notes. consideration of this branch of the case. For these and other reasons easily suggested, I am satisfied the contract in this case, according to the real understanding of the parties, was to be fulfilled in Confederate treasury notes.

537

This disposes of the various errors assigned in the petition. An additional one has, however, been presented in the argument here. Complaint is made of the in

It is insisted, however, that the bond in controversy shows on its face a contract of hazard; and the evidence before the jury was not sufficient to overthrow this plain legal intendment. It would, perhaps, be sufficient to say, that the whole matter was submitted to the jury; that their verdict is approved by the judge presiding at the trial; and the finding is not plainly contrary to the evidence. In such case for this court to interfere would be to violate the best 539 settled rules of law in reference to new trials. But it is unnecessary to rest our decision upon this ground. In my judgment the verdict is plainly right, and fully sustained by the evidence. I do not deem it important to enter into any elaborate argument or detailed examination of the facts to vindicate my conclusions upon this point. Such a discussion would not be profitable in any view. A brief reference to some of the more prominent facts may not be out of place. In the first place, the letter of Miller, the vendor, and his advertisement of the terms of sale, constitute very strong proof of his entire willingness to sell his land for Confederate currency; and the price agreed to be paid, as compared with the real value of the land, tends very strongly to show that the sale was in fact made with reference to that currency as the standard of value.

It is also in proof that the parties met on the 3d day of July, 1863, to close the contract. Windell refused, peremptorily, to pay any other than Confederate 538 *currency; and Miller agreed to receive it. Fifteen hundred dollars were paid on that day; and a receipt was

struction set out in the second bill of exceptions. That *part of it to which objection is made is as follows: "But if the jury should believe from the evidence that the parties contemplated Confederate m ney as the funds to be paid, then the note falling due since the close of the war, when Confederate money was not current and had no appreciable value, they should find the scaled value of the money at the time of the contract. I do not understand that the defendant in error makes any objection to this instruction; but the plaintiff in error insists that it is too restricted in its terms; that the court ought to have gone farther, and informed the jury that in fixing the amount of plaintiff's recovery, they were authorized to take into consideration the fair value of the land. This, I think, is correct. The statute provides that "where the cause of action grows out of a sale, or renting, or hiring of property, real or personal, if the court or jury (if it be a jury case) shall think that under all the circumstances the value of the property shall be the most just measure of recovery, it may adopt that value, instead of the express terms of the contract." In Pharis v. Dice, 21 Gratt. 303, this court not only affirmed the constitutionality of this statute, but