At the Fall Term, 1870, the following entry appears upon the (510) record: "Referred to J. S. Henderson and Andrew Murphy to try all issues of law and fact." Both parties appeared before the referees and examined testimony, and the referees after hearing counsel on both sides, made up their report and returned it to the Fall Term, 1871. It was confirmed and judgment entered upon it, setting aside the receipt and release which the defendant had taken from the feme plaintiff, and directing an account of the defendant's guardianship to be taken, etc., and for this purpose it was "referred to Thomas G. Haughton and James E. Kerr to state an account between the plaintiff and defendant, and ascertain what sum, if any, is due the plaintiffs from the defendant as guardian aforesaid, and that said referees report to the next term of this Court." These referees, after hearing the testimony and proofs of both parties, made their report to the ensuing Spring Term, 1872, of the Court, when both parties by their counsel filed exceptions to the report, all which were overruled by his Honor Cloud, J., and the report was confirmed and a judgment given thereon, from which both parties appealed to the Supreme Court. The following were the exceptions filed by the defendant:
1. That the referees did not allow a credit to the defendant for the sum of $1,385.68, paid by the defendant to the feme plaintiff on the 7 December, 1862, with interest since said payment till 15 April, 1872.
2. That the receipt of $3,881.37 given by feme plaintiff to the *Page 353 defendant on the 7th December, 1863, was not allowed for the amount therein specified, and that the weight of evidence shows that the payment therein alleged to have been made was actually made and received as such.
3. That the referees did not allow a credit for $59 paid to feme plaintiff by defendant 7 December, 1863.
4. That defendant has been charged with interest on the whole amount of the proceeds of the real estate from 7 December, 1862, when a large proportion thereof was not, nor could have been (511) received by defendant till 7 Dec., 1863.
5. That defendant is not credited with the sum of $25 paid to S. Blackmer, 7 Dec., 1863.
The 6th, 7th and 8th exceptions were that the defendant was not allowed certain sums on account of errors in the calculation of interest. In this case there were exceptions on both sides and both sides appealed. In this branch of the case only the defendant's exceptions are considered.
1. The first exception is allowed in part. It appears that $3,150 was the whole amount of the land money paid over by Clerk and Master Blackmer to the defendant. He is charged with the amount as of 7 December, 1862, with interest from that time. It is evident however from the testimony of the defendant himself and from the testimony of Blackmer that he had received a part of the land money several years before, $400 in 1859 and $1,000 in 1860. It does not appear clearly and it is the fault of the defendant that it does not, but we assume as probable that the balance due of the land money on 7 December, 1862, was $1,385 and that sum was paid over to the defendant by Blackmer in Confederate money, and that is the amount embraced in the exception which we are now considering.
We assume also that Blackmer had received the Confederate money in 1862 or before, and that without instruction to the contrary he was authorized to receive it, and if he was authorized to receive it, then the defendant was authorized to receive it also. Instead, therefore, of charging the defendant with $3,150 land money, 7 December, 1862, he ought to be charged with that sum less $1,385, and then not with the $1,385 of Confederate money, but with its value according (512) to the legislative scale, ascertained by the scale with the gold premium added. But the interest item must not be altered, because, although he is charged with too much interest on the land money after 7 December, 1862, he is charged with no interest at all on what he had *Page 354 received prior to that time. And although this rule may not be precisely accurate, it is as near as we can come to it, and it is the defendant's fault that the account was badly kept. So that the effect of our ruling is to deduct from the item of $3,150, the difference between $1,385 and the value of $1,385 of Confederate money as of 7 December, 1862, to be ascertained by the legislative scale with the gold premium added, to be ascertained by the report of the gold market at this time. And the Clerk here will make the inquiry and the calculation.
2. The second exception is disallowed, because it appears that the settlement was made a few days after the ward plaintiff arrived at age, and when she was without the advice of her friends and under circumstances indicating fraud and circumvention.
3. The third exception is disallowed, not being supported by the facts.
4. The fourth exception is disallowed, for the same reason stated in considering the first exception, that although the defendant may be charged with too much interest at one time, he is charged with none at all at another, and the confusion is his own fault.
5. The fifth exception is disallowed, because the circumstances indicate strongly that Blackmer was employed by defendant not for the advantage to the plaintiff of his professional aid in making a fair settlement with the plaintiff, but as a device to cover a fraud.
6, 7, 8. The 6th, 7th and 8th exceptions involve only clerical calculations, which the Clerk here will make, and if the errors exist the exceptions will be allowed.
(513) When the account is reformed in the particulars indicated, there will be judgment here for the plaintiff for the amount found to be due by the Clerk.
It seems that the case was referred below without the written consent of the parties: C. C. P., s. . . ., but without objection at Fall Term, 1870. Both parties appeared before the referees and offered evidence. At Fall Term, 1871, the referees reported, and their report was confirmed without exceptions. It was then referred again without written consent, but without objection, to other referees to state an account, and both parties appeared before the referees and offered evidence. At Spring Term, 1872, a report was made, and both parties filed exceptions and both parties appealed. In this Court for the first time the defendant excepts to the reference as being without the written assent of the parties. We think that it is too late.
Judgment modified and judgment here for plaintiff.
PER CURIAM. Modified and affirmed.
Cited: White v. Utley, 86 N.C. 417; Kelly v. Odum, 139 N.C. 281. *Page 355 (514)