Covington Ex Rel. Covington v. Leak

*597 Hodman, J. Exceptions of defendants: 1. That their testator is charged with $3,830.80 and interest, being the amount found owing to their testator, as guardian, by James A. Covington, administrator of John P. Covington, by a report made by the County Court of Eichmond County, on the 20th of October, 1863, by commissioners appointed by that Court to state an account. His Honor, the Judge, below sustains this exception, and finds as facts, that on the 20th of October, 1863, the said James, administrator of John P. Covington, tendered the sum found owing by him to Mial "Wall, in Confederate money, who declined to receive it, and the said James has since become insolvent, and that under the circumstances, Wall was not guilty of negligence in attempting to make the debt out of the said James. For these reasons he acquits Mial Wall of negligence respecting the debt referred to. If his Honor had embraced in his view all the facts bearing on the point, we should have concurred with him in his conclusion. But it is singular that it escaped his attention, as it seems also to have done that of the counsel in this cause, that James, the administrator, must of necessity have given a bond with sureties, on becoming administrator. We are left entirely in the dark, as to the solvency of his sureties. If they were solvent, surely it was the duly of the executors of Mial Wall to have made good the debt. In this point of view, also, it is worthy of notice, that although a report was made, showing a sum owing by J ames, as administrator, it does not appear that any j udgment was ever rendered on this report. How far this may affect the question, it is not for us to say now. For this reason, the decision of his Honor on this point is not sustained, and the case is remanded, is order that the matters connected with this exception, which have been apparently overlooked, may be inquired into. 2. We concur with his Honor. This exception is overruled. 3. We concur with his Honor. This exception is sustained. *598 4, 5, 6, 7. We concur with his Honor for the reasons given; these exceptions are sustained. 8. There are no facts stated by his Honor, connected with this exception ; and notwithstanding the mass of papers sent up, constituting we suppose the evidence before the Clerk, all of which is impertinent on the appeal to us, we have not found any report of the Clerk, stating the facts relating to the matters excepted to. It seems that James, the administrator, sometime previous to October, 1S63, paid to Mial Wall, two notes on Ellerbee, which together amounted to about $1,100. The note for $1,286.14, which is filed, and is dated in 1866, xfc is assumed was taken in renewal of those two. Prima facie, the taking of the two notes without surety, was imprudent and unjustifiable. So was the renewal of them without surety in 1866. If there were any circumstances to justify such a course and exculpate the guardian, it was for the defendants to have shown them, which they have failed to do. We concur with his Honor. This exception is overruled. 9. The Judge below, has found facts which fully justify him in overruling this exception. We concur with him. Exception overruled. Exceptions of the plaintiffs: That the commissions allowed the guardian are excessive. It does not appear to us that they are so under the circumstances. The exception is overruled. Of course no commissions are allowed on the claims which have turned out to be worthless. The case is remanded to the Superior Court of Richmond, in order that the matters connected with the first exception may be inquired into, and for further proceedings. Neither party will recover costs of the other in this Court. We feel obliged to notice that a large mass of papers, constituting the evidence before the Clerk, have been sent to this Court; they are useless and impertinent. The Clerk is not allowed any costs for the copy of these papers sent to this Court, unless they were sent by direction of some party; in which case they *599 must be paid for by tbe party, but not be taxed as costs in. the cause. Moreover, the papers were confusedly intermingled; they were not paged, nor was there on the margins any such brief statement of the subject of the text, as is necessary. Conse■sequently the Court was obliged to order its Clerk to arrange and page the papers; for which he is allowed $10, one-half of which must be paid by each party. Said sum shall be deducted in favor of said parties, from any costs which may be taxed in favor of the Clerk of the Superior Court of Bichmond, on final judgment. Let this opinion be certified. Pee Curiam.