Neilson v. Cook

A. J. WALKER, C. J.- The assignments of error present for revision the rulings of the court to which exceptions were taken. They are as follows: 1st, the refusal to charge the guardian, “giving him the benefit of what he received ”, with the value of a note on John S. McCollum, given in August, 1860, which was collected in Confederate treasury-notes, on the 9th March, 1865; 2d, a like refusal to charge as to the value of the note on D. A. Mitchell, which was collected on 7th May, 1865, in Confederate treasury-notes ; 3d, the refusal to charge the guardian with the value of eight hundred dollars in bills of the Bank of Mobile, which were exchanged in January, 1863, at a premium, for Confederate treasury-notes; 4th, the refusal to charge the guardian with the value of a note on R. E. Knott, given for the hire of a slave in January, 1864, upon which there was no security; and with the value of an account on Mrs. Barringer, for the hire of a slave for the year 1865, for which neither note nor security was taken; and, 5th, the allowance of compensation and an attorney’s fee. 1. We decide the question arising on the first of the above stated exceptions, in favor of the guardian, on the authority of Watson and Wife v. Stone, decided at the present term. 2. The note on D. A. Mitchell was collected in Confederate treasury-notes, after the surrender of the forces of the defacto government, and the establishment of the authority of the United States in Alabama. Eor this act there is no legal justification, and the guardian is chargeable, as proposed, by the appellant. He is, in fact, charged in the account with the amount of the note as money; and as the account now stands, the result is the same as if a collection in par funds had been acknowledged; but if, on stating a [511] future account, a balance should be ascertained against the guardian, the ruling now made, that the guardian had no - legal right to collect the note in Confederate treasury-notes, may become important. 3. The refusal of the court to charge as requested in reference to the exchange, in January, 1863, of bills of the Bank of Mobile for Confederate treasury-notes, presents a different question, This transaction was not the payment of a debt, but an exchange. It is not authorized by the act of 9th November, 1861; for that act extends to payment in Confederate treasury-notes, and not to exchange for them. The liability on account of this transaction cannot be tested by the principles which govern as to the first point decided. There was nothing in the subsisting political status during the war, as between individuals, which forbade the use of Confederate money. The government being for the time without the sovereignty of the United States, individuals are excusable for yielding to the authority of the de facto government over them, and recognizing its attitude and position in reference to the United States. This is not only consonant with the principles of international law, but there was a long time during which the dealing in Confederate treasury-notes was an unavoidable necessity, for it was the only currency, and neither food, clothes, nor shelter could otherwise be procured. Guardians are allowed to make exchanges of one currency for another, when a prudent man, in the conduct of his own affairs, would have done so. The test, therefore, of the guardian’s liability here is, whether he has acted as a prudent man, in the management of his own affairs, would not have acted, and whether the interest of his ward has been thereby prejudiced. If he did so, he should be¿held liable to the extent of the injury sustained. The appellant did not adopt this principle in the charge which she sought to impose upon the guardian. She asked the court to charge the guardian with the eight hundred dollars in the bills of the Mobile bank, “ giving him the benefit of what he received for them.” If, by this phrase, “ giving him the benefit of what he received for them ”, be meant allowing him a credit for the value of the treasury512 notes, as compared witb tbe bank-bills, no charge could be predicated of tbe transaction; because-tbe proof shows that be received more than tbe market value of tbe bank-bills. But, if it meant that be should be charged witb tbe bank-bills, and credited witb tbe present value of tbe treasury-notes, tbe proposition is shocking to tbe sense of justice. These treasury-notes may have been, and the record conduces to show were, appropriated to tbe benefit of tbe ward’s estate. There is no evidence that tbe estate sustained any detriment whatever by tbe exchange which was excepted to, so far as we can perceive; and we cannot affirm that there was any error in tbe ruling of tbe court. We. are not to presume either injury to tbe estate, or mala fides in tbe guardian. 4. Tbe failure to require security on tbe note of Mr. Knott, and to take a note witb security from Mrs. Barringer, for tbe hire of slaves, was inconsistent witb tbe prevalent usage in tbe State, and in express violation of section 1751 of tbe Code, if applicable to guardians. At all events, we think tbe guardian has, by bis failure in tbe particulars above stated, placed tbe debts in such a condition of insecurity as to justify charging him on account of it, if tbe appellant so elects. There is no warrant in tbe law for tbe decree, that tbe guardian should stand as security for tbe debts. 5. Neither a failure to'- file annual accounts, nor negligence which works no injury, where there is no mala fides, can deprive a guardian of bis compensation. — Powell v. Powell, 10 Ala. 900; Craig v. McGehee & Armstrong, 16 Ala. 41. We de not find in this case, as now presented to us, tbe facts necessary to justify a denial of compensation to tbe guardian; but tbe court below committed an error in determining tbe compensation by examining witnesses as to. tbe value of tbe services. No special or extraordinary services appear to have been rendered. This being tbe case, tbe guardian could not be entitled to more than tbe commissions specified in section 1825 of tbe Code, which is made applicable, by section 2039, to guardians; and tbe commissions authorized by tbe second section of tbe act of 7th December, 1861, (Pamphlet. Acts, 1861, p. 52,) and tbe [513] court is not bound to allow so much, if, in Ms opinion, it is unreasonable. — Allen v. Martin, 36 Ala. 330, and cases there cited. The testimony as to the value of the guardian’s services may have been admissible, for the purpose of advising the judge as to whether he should allow as much as two and one half per cent., but not for the purpose of fixing the compensation. 6. We perceive no objection to the allowance of the attorney’s fee. — Anderson v. Anderson, 37 Ala. 683. Reversed and remanded. Bybd, J., not sitting.