*and April 1866, Tams made two payments to Brannaman, each of three hundred dollars. standing was it was to be paid in good money. B 811 was a plain farmer. HELD: 1. Same Same - Same-Confederate Contract.*There is no evidence to show that this was a con tract according to the true understanding and agreement of the parties, to be performed in Confederate money or with reference to Confederate money as the standard of value, and as the price was not more than the land was worth in good money, it was not a Confederate contract. 2. Same Same Same Same-Measure of Recovery. -If it is a Confederate contract, the value of the land at the time of the contract is the most just In April 1854 Samuel Brannaman purchased from Thomas J. Michie, trustee, a tract of land in Augusta county, containing about ninety-eight acres, for which 810 *he paid to Michie $2,456.25. He went to live upon the land, and built a barn and corn-crib upon it. In October 1862 Brannaman sold this land to Wm. H. Tams. The article of agreement for the sale is dated the 1st of October 1862, though it was probably ante-dated a few days. By it Brannaman sells the land to Tams "for the sum of twenty-eight hundred dollars, to be paid by the said Tams in the following manner, to wit: One thousand dollars cash in hand, and the remainder in three equal annual payments of six hundred dollars each." A deed with general warranty reserving a lien, to be made upon the payment of the one thousand dollars. | It appears that Brannaman wishing to use the purchase money to buy another farm, at his instance, Tams, instead of paying the one thousand dollars, the cash payment for the land, executed his bond to Brannaman for this sum, payable on demand; and he executed his three bonds of $600 each for the deferred payments. All the four bonds are made payable in "bankable currency." Michie not having conveyed the land to Brannaman, he joined with Brannaman and wife in a deed bearing date the 24th of November 1862, by which they conveyed the land to Tams, according to the contract. This deed was taken by a notary to the farm where Brannaman lived, who took the acknowledgment of Brannaman and wife; and at the same time he delivered to Brannaman the bonds which had been executed and prepared by Tams. Tams seems to have kept the one thousand dollars on hand in Confederate money, ready to be paid whenever called for; but Brannaman not having bought another farm, and being in the Confederate service at one time and a prisoner afterwards, no demand was made for it during the war. After the war, viz: In November 1865 *See principal case cited in Cabel v. Cox, 27 Gratt. 189. In May 1869 Brannaman instituted a suit in equity in the Circuit court of Augusta county against Tams, and in his bill, after setting out the sale of the land as before stated, and the execution of the bonds, he insisted that the sale was for good money: that the price he was to get was not greater than the land was worth before the war, or than he had given for it, taking into account the improvements he had put upon it; that the term "bankable funds" was not in the contract, and that he, a plain farmer, And he supposed they meant good money. asked that he might have a decree for the amount due him in good money, and that the lien reserved on the deed might be enforced for the payment of the money. Tams answered the bill, averring that he understood, that he was to pay for the land in current money of the country, then circulating, which was Confederate money; and if he had not so understood it he certainly would not have made the purchase. That he prepared the bonds in accordance with what he believed to be the complainant's understanding of the contract; and they were sent by the notary who went to take the acknowledgment of the deed, and were accepted by the complainant in execution of the complainant's contract with him. The plaintiff and defendant gave their testimony in the cause: Brannaman declaring that he understood the contract to be for the payment of the price of the land in good money; Tams equally positive as to his understanding that it was to be paid in Confederate money. Neither of them say that anything was said at the time as to the money in which the land was to be paid for. 812 *The evidence was very conclusive. that the land was worth in good money, both before and after the war, the amount which Tams contracted to pay for it. The cause came on to be heard on the 10th of November 1871, when the court held that the bond for $1,000 should be scaled as of its date, but the other three bonds should not be scaled, because if made with reference to Confederate States Treasury notes as the kind of currency in which the parties were contracting, the value of the land was the most just and equitable measure for determining the amount fairly due on the said bonds; and if they are made payable in good money as they fall due, after scaling the bond for $1,000 the defendant would not pay more than the fair value of the land at the date of the purchase. And made, it was decreed that Tams should pay giving him credit for the payments he had to the plaintiff the sum of seventeen hundred and sixty-eight dollars and seventy26th of April 1866, till paid. And unless the one cents, with interest thereon from the money was paid within four months, commissioners were appointed to sell the land, &c. And thereupon Tams applied to this court for an appeal; which was allowed. Michie & Michie and Sheffy & Bumbgard- | evidence, that any man of common discrener, for the appellant. tion would sell his land for $3,700 in Confederate money when it was worth upwards of $14,000 in that currency.' Baldwin & Cochran, for the appellee. CHRISTIAN, J. The scale of depreciation authorized by the statute, whether the "gold standard" or the "property standard" be adopted, is applied only where, according to the true understanding and agreement of the parties, the contract is to be fulfilled and performed in Confederate States treasury notes, or was entered into with reference to such notes as a standard 813 of value. *In the case before us, there is nothing in the contract of sale, which is in writing, to indicate the kind of currency in which it was to be fulfilled or per formed. The contract of Tams was to pay for the tract of land sold by Brannaman, "the sum of twenty-eight hundred dollars to be paid by Tams in the following manner: One thousand dollars cash in hand, and the remainder in three annual payments of six hundred dollars each." Both Tams and Brannaman are examined as witnesses. Tams, both in his answer and deposition, declares that he regarded the sale as one for Confederate money, and expected to discharge it in that currency. Brannaman, on the other hand, is very emphatic in his declarations, that he sold his land for good money; that it had cost him more before the war than the price at which he sold it to Tams. Nor does any evidence in the cause, outside of the contract of sale, throw any light upon the subject. It cannot be said, therefore, that it appears, in this case, that it was the true understanding and agreement of the parties, (i. e. of both parties,) that the contract was to be fulfilled or performed in Confederate treasury notes, or was entered into with reference to such notes as a standard of value. It is only in such case that the scale of depreciation can be applied. 815 evidence, shows, that the contract *was not one to be fulfilled or perbut was a sale for a sound currency. But formed in Confederate treasury notes, if it can be regarded as a Confederate contract, then I think it is clear that in this case the most just measure of recovery" is the value of the land; which the evidence conclusively shows to be certainly not less than the contract price. As to the cash payment of $1,000, inasmuch as the appellant had the privilege of paying that amount in Confederate currency, and held it at the request of the appellee, he must be regarded to that extent as a borrower of that amount of Confederate money, and that amount ought to be scaled at its gold value. Upon the whole case, I am of opinion that there is no error in the decree of the Circuit court, and that it ought to be affirmed. When the contract of the parties sheds no light upon the question as to the kind of currency in which it is to be performed or fulfilled, the price for which the land is sold is a most important element to be considered in determining the character of the contract. In Meredith v. Salmon, 21 Gratt. 762, great stress is laid upon the fact, in the able opinion of Judge Staples, in which the whole court concurred, that while the real value of the land was only six thou-sented. sand dollars, the agreed value or contract price was thirty thousand dollars. 814 MONCURE, P. and STAPLES, J., concurred in the opinion of Christian, J. ANDERSON and BOULDIN, Js., dis Decree affirmed. *In Morgan's adm'x v. Otey, 21 Gratt. 619, the price for which the 816 property sold was also considered a most important element in determining the character of the contract. In that case this court said: "The property was worth at least $1,200 in gold at the day of sale. was sold for $3,700; while $1,200 in gold was worth on the day of sale $14,000 in Confederate currency. It is impossible to conclude, except upon the most explicit V R, 23 Gratt-43 It *Lincoln's Adm'rs v. Stern & Wife. September Term, 1873, Richmond. Guardian and Ward Case at Bar.*-Bill by S and J his wife against W and A administrators with the will annexed of L, stating L was a guardian of J, and asking for account of L's guardianship. W in his answer, says he acted as guardian of J, and settled his account as such in 1860, and paid over *See monographic note on "Guardian and Ward." 673 guardian's bond, exhibited with the bill or filed among the papers. The administrators of B. F. Lincoln say in their answer, that he never acted as such guardian; and Jacob Lincoln, one of them, says that he himself always acted as the guardian of Josephine Lincoln, and so regarded himself; the balance found due to S. Asks, if L is to be 1. Same--Appointment and Qualification of Guard- 2. Same-Liability of Guardian.-In holding the estate of L responsible for said outstanding claims reported to be due J, under the circumstances of this case, without first having directed an enquiry into the present and past condition thereof; whether the same were collected or 817 collectible by said L: and if they or any of them This was a suit in equity in the Circuit court of Rockingham county, brought in May 1867, by John W. Stern and Josephine, his wife, against Jacob Lincoln and Abraham Lincoln, as administrators of B. F. Lincoln, deceased, to have a settlement of the account of B. F. Lincoln, who the plaintiffs alleged had been guardian of the plaintiff, Josephine, who before her marriage was Josephine Lincoln, the daughter of Preston Lincoln, deceased. The case is stated by Judge Bouldin in his opinion. The court having on the 30th day of October 1868, made a decree in favour of the plaintiffs for the sum of nine hundred and seventy-six dollars and sixty cents, with interest, the defendants obtained an appeal to the District court of appeals at Staunton; from whence it was transferred to this court. that he was accepted and acknowledged as such *by the ward and her husband, and in that character that he, in the year 1860, actually settled his account as her guardian before commissioner Wartman, and had paid to her husband through his attorney, the amount reported to be then due, by executing negotiable notes therefor at short dates. In that settlement before commissioner Wartman, the commissioner reported that there were two claims due to the ward not included in the settlement; not from the guardian, however, but from the estates of James Hopkins and D. Lincoln, respectively; but what was the then condition of those claims-whether then collectible or not; and if collectible, whether solvent or not, does not appear to have been reported on that settlement. The settlement was made on the 16th of October 1860, and the payment of the balance reported by the commissioner, was made on the 16th of November 1860, very promptly after the settlement. For cause satisfactory to the commissioner, the claims against Hopkins' estate and D. Lincoln's estate were not at that time considered properly chargeable to the guardian. Very soon thereafter the late war between the United States and the Confederate States of America broke out, and in April 1861, by an ordinance of the Virginia Convention, the stay law was enacted. It was amended and re-enacted by the Virginia Legislature in 1866, and continued in force until January 1, 1869, when it expired by limitation. B. F. Lincoln died in 1863, in the very midst of the war, without having ever acted as guardian of the female plaintiff; and this suit was brought against his administrators with the will annexed, by Stern and wife, in April 1867, the stay law being then in full operation; and then it seems. for the first time, was the claim preferred that B. F. Lincoln had been the guardian *of Josephine, and that his administrators were bound to render account as such. 819 his Jacob Lincoln, one of the administrators. in his answer to the bill, expresses his surprise at the character of the suit; does not Woodson, Liggett and Hays, for the ap- acknowledge that the said B. F. Lincoln pellants. was ever the guardian of the female plain- C. A. Yancey, for the appellees. the court. It is charged in the bill in this case, that the testator of the appellants had qualified as the guardian of the female appellee, then Josephine Lincoln, as far back as the year 1848; yet he appears never to have acted in that capacity; nor is any order of court, or and sets out the facts and settlement above referred to. And he adds that if his brother should appear by order of court, and by giving a bond, although without acting, to have been in law the true guardian, he claims for him the settlement aforesaid, made by himself. Abraham Lincoln, the other administrator, filed a separate an lation to the claim on D. Lincoln's estate, *the commissioner reports that "it is or was in the hands swer, in which he says that he has no coln had not collected that claim. In reknowledge that B. F. Lincoln ever was guardian of Josephine Lincoln; "that he 821 has been informed and always understood that Jacob Lincoln was guardian;" and he of Smith Lofland, a former receiver of insists that Jacob should still be treated as such, and the estate of B. F. Lincoln relieved. Exhibits were filed with Jacob Lincoln's answer to show his own acts as such guardian; but there is in the record no proof whatever that B. F. Lincoln ever was guardian, unless it be inferred from the following statement of commissioner Wartman, referring to the settlement of Jacob Lincoln's account of 1860. "Subsequent investigations disclosed the fact that Jacob Lincoln had been acting for the ward of his brother B. F. Lincoln and vice versa. The Circuit court, on the bill, answers and exhibits, ordered that the administrators aforesaid settle before a commissioner of the court an account of the transactions of their testator B. F. Lincoln, as guardian of Josephine Lincoln: and commissioner Wartman, under that order, reported as the account of B. F. Lincoln, the account of Jacob Lincoln settled in 1860, accompanied by the statement *above quoted, in relation to the mistake made by the two guardians. 820 that fund:" that is to say, that it is or was under the control of a court of justice; and Jacob Lincoln swears that it had never been paid to B. F. Lincoln. The fund due from the estate of Mary C. Lincoln is reported to have accrued July 1st, 1863. It bears interest from that date, and is reported to be, not in the hands of B. F. Lincoln, but "in the hands of Jacob Lincoln, guardian of the said Mary C. Lincoln." In all probability, and for all that appears to the contrary, B. F. Lincoln was dead when the right to that fund accrued. The exact date of his death does not appear; but it is alleged in the bill that he died in 1863; and the debt accrued in July of that year. The commissioner certainly could not have intended to charge B. F. Lincoln's estate with a debt which accrued to the ward in the middle of the year in which he died, and perhaps after his death; which he certainly had no opportunity in his lifetime to collect by course of law, and which the commissioner expressly reports to be at the date of his report still "in the hands of Jacob Lincoln, guardian of the said Mary C. Lincoln, dec'd." Yet this claim is reported by the commissioner precisely as the other claims are reported, and they are all aggregated into one balance of $976.60, which he reports to be due to Josephine Stern, not from B. F. Lincoln, but from the persons and sources above mentioned. He says, "The true amount still due and unpaid to Josephine Lincoln, (now Stern,) $1,093 02 from the sources and individuals hereinbefore named, as of date April 1st 1868, is $976.60; of which sum $895.25 is principal, and $81.35 is interest," thus reporting the true state of the facts, and submitting the whole matter to the court on the facts reported. There was no exception and no ground of exception to the report; because, as we have seen, it *set forth, as far as it went, the real facts of the 143 30 case; and the same was confirmed as a matter of course. The court then entered a decree, "that the plaintiffs, John W. Stern and wife" do recover of the administrators, with the will annexed, of B. F. Lincoln, to wit, Jacob Lincoln and Abraham Lincoln, the He then reported as still due to the female plaintiff the two claims mentioned in his former report, viz: A claim on the estate of James Hopkins, dec'd, as one of the sureties of Samuel Bare, who was executor of Christian Hoffman, dec'd, $398 95 A claim against the estate of D. Lincoln, dec'd, 694 07 $1,236 32 $976 60 The commissioner did not decide, and evidently did not intend to decide, nor did he report, that the above balance of $976.60 was chargeable to and due from the estate of B. F. Lincoln, dec'd. On the contrary, he reports expressly in relation to the Hopkins claim, that he had not discovered, and was unable to say, whether that claim had ever been received by B. F. Lincoln or not; and he says nothing about the past condition of the claim, or its condition at the date of his report. There one witness examined, Jacob and he stated on oath that B. was but 822 sum of $$976.60, as of date April 1st, 1868, of which amount $895.25 is principal and $81.35 is interest." And it was further decreed and ordered, that the same defendants pay the costs. This is a personal decree against those defendants. Humphrey's adm'rs v. West's adm'rs, 3 Rand. 516. So that the Circuit court not only held that B. F. Lincoln was guardian of the female appellee, but that his estate was bound for the entire amount reported as aforesaid to be due to Josephine Stern; and without any account of the assets of B. F. Lincoln's estate entered a personal decree against his administrators for that amount. The appeal is taken from this decree, and the court is of opinion that the Circuit court erred: 1st. In proceeding against the estate of B. F. Lincoln, dec'd, without proof of his appointment and qualification as guardian; especially when it appeared, as it did, that he had not acted in that capacity. 2d. In holding his estate responsible, under the circumstances of this case, for the claims reported by the commissioner to be due to Josephine Stern, without first directing an enquiry into the condition and solvency of those claims; so as to ascertain clearly whether there had been negligence on the part of the guardian or not. 3d. In entering a personal decree against the appellants without first taking an account of the assets of their testator's estate. 22d of October 1860, G. the sheriff, is directed to 2. Scaling. It was proper not to scale the money. The case is fully stated in the opinion of Christian, J. Watson, for the appellants. I. The judgment was not authorized by the 40th Sec. of Chap. 49, of the Code. 1. The court having maturely considered the transcript of the record of the decree aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the Circuit court the erred, 1st, in treating B. F. Lincoln, dec'd, as guardian of the appellee Josephine 826 Stern, without proof of his legal appointment and due qualification as such. 2d. In holding the estate of said B. F. Lincoln, dec'd, responsible for the several outstanding claims reported to be due to the said Josephine Stern, under the circumstances of this case, without first having directed an enquiry into the present and past condition thereof; whether the same were collected or collectible by said B. F. Lincoln, dec'd; and if the said claims or any of them have been lost, whether that loss has occurred through the default or neglect of said B. F. Lincoln. 3d. In entering a personal decree against the appellants, without having first ordered an account of the assets of their testator's estate. It is therefore decreed and ordered, that the said decree of the Circuit court of the 30th day of October 1868 be reversed and annulled, and that the appellees do pay to the appellants their costs by them about their appeal in this behalf expended. It is further decreed and ordered, that this cause be remanded to the said Circuit court, to be further proceeded in according to the principles of this decree. 824 *All which is ordered to be certified to the said Circuit court of Rockingham county. Decree reversed. 825 *Goss & als. v. Southall, Receiver. September Term, 1873, Staunton. 1. Judgment on Official Bond. By a decree of the Circuit court of A. made in a pending cause on the 2. Because the notice was not based on sheriff's return of May 1866, but expressly on the decree of October *1866, and was not sufficient as a notice under said section. Because by the decree of October 1866, the sheriff's return was merged, and could not be made the foundation of another judgment. 3. Because the return of the sheriff was not made "upon any order, warrant or process;" and there is no evidence that any such order, warrant or process was in his hands. 1 Rev. C. 1819, sec. 48, ch. 134, ibid. p. 526-527; and sec. 27, chap. 49 of Code of 1860. 4. Because the return does not show that the appellee was entitled to recover money of the sheriff. Tolson v. Elwes, 1 Leigh, 436; Code sec. 3, chap. 187; Stuart v. Hamilton, 2 Hen. & Mun. 48; Greenhow v. Barton, 1 Munf. 590; Mayor of Alexandria v. Hunter, 2 Munf. 228. 5. Because the proceeding was obviously not under the section in question, and the judgment was not in pursuance of the terms thereof. II. The judgment was not authorized by the 5th sec. of chap. 167 of the Code, because under that section, the County court alone had jurisdiction. Code 2, ch. 49, 8 of ch. 13, and % 1, ch. 157. III. Nor by the 6th section of chap. 167. 1. Because the appellee was not, in the sense of this section, entitled to recover money by action on any contract. Perkins, &c., v. Giles, Governor, 9 Leigh, 397; 1 Story's Eq. sec. 833 and 833a; 3 Daniel's Ch. P. 1919. 2. Or, if he was, only two of the defendants had sixty days notice of the motion: and the notice was not returned to the |