Johnson v. McCullough

Bleckley, Judge. 1. This was not an action which could reach the guardian for any failure to gather up the ward’s assets. The breach of the bond alleged, had no such bearing. And the inventory of notes, and the returns of sale, were not offered avowedly, to impeach the guardian as a witness. Treating them as admissions made by him, they were made before he became guardian, and for that reason, if for no other, would not be binding on his sureties as admissions. As the sureties were defendants to the action, as well as the guardian, evidence which would affect him were he sole defendant, might, nevertheless, be inadmissible because it could not be received in the present suit with a restriction of its effect to him alone. We think the evidence was properly excluded. 2. Whether the special plea was good or bad, to strike it after the evidence was closed and the trial finally shaped, would be unsound jiraetice. For the same reason, the evidence which was legally admitted to support it ought not to have been ruled out at that stage. A reversal of the judge’s rulings on these questions would be an unwholsonie precedent. 3. It has been ruled that a guardian may explain his returns by parol, and show the actual truth of his accounts. It may be that this is treating too lightly his solemn admissions, made on oath, approved and recorded; but such seems to be the latest adjudication on the subject. 45 Ga., 520. 4. The guardian admitted in his evidence that he collected certain of the notes prior to the war. Of course he could not have collected them in Confederate money, and he failed to show when, or by what means, that part of the fund became commuted. This he was bound to do in [229] order to take credit for it as invested in bonds as Confederate money. 52 Ga., 600 5. As we understand tbe evidence, the guardian, although he had an order * from the judge sufficiently broad to cover the investment of any and all funds, did not use it except to invest Confederate funds. Therefore, he can take no aid from the order as to any money collected before the war, without first disclosing how it legally changed form and became Confederate money. 6. The Ware note was not collected, but sold, and the purchaser used it to pay for land. Had 'the guardian so used it, the land, and not Confederate money, would have stood in place of the note. The guardian had no power to sell it without leave from the ordinary, and not then to sell privately, as he did. Code, § 1828. He cannot avoid liability for this note, upon the showing made in the evidence. 7. On mature consideration, we have deemed it proper to indicate in the syllabus the two propositions between which the court below will have to choose in reaching the consequences of the settlement made by the guardian, resulting in the discharge of himself from liability as administrator in respect to the notes, as a whole, and in commencing his liability as guardian. (See 5 Mason, 95 ; 18 How., 100.) This act took place before the war, and is to be measured by a peace, and not by a war standard. The case was prepared and tried as if the special plea, when made out in evidence, would be a defence. That being so, unless we were free from all doubt, we should not like to rule the question finally until after the court below has dealt with it deliberately, upon a motion made in due time to strike the plea. The motion made before was out of season, and what effect that circumstance may have had on the decision of it, we do not know. A new trial follows from the views presented by us in the 4th and 6th heads of this opinion. This being so, the whole case is open to be re-tried. Cited for plaintiff in error, 57 Ga., 226 ; 11 Vesey, 377; 8 Gill and J., 218; 30 Penn., 536; 1 J J. Marsh. 440; 55 [230] Ga., 89; 43 Ala., 109; 46 Ib., 600; 25 Ib., 363; 3 S. C., 457; Story on Agency, §§ 98, 215; 13 Pick., 206 ; 6 Bro. Parl. Cas., 280; 2 Wash., C. C., 378; Paley on Agency, by Loyd, 41, 42; Code, §1823; 11 Ga., 258; 33 Ib., 33; 45 Ib., 520; 42 Miss., 194; 35 Ib., 540; 33 Ib., 553; Perry on Trusts, §§ 438, 452; 48 Ga., 471; 54 Ib., 291; 3 S. C., 451. For defendants, 45 Ga., 520; 37 Ib., 205; 38 Ib., 304; 39 Ib., 96, 569 ; 46 Ib., 361; 48 Ib., 150; 56 Ib., 411. Judgment reversed.