His Honor Judge Warner gave no opinion in this ease, ¡taring been of counsel in the court below.
By the Court
Lumpkin, Judge.John D. S!e!l, it seems, was appointed guardian of Maria Louisa Tho.au ¡on, at the March Terra, 1838, of the Court of Ordinary, of Fayette county; and received several slaves, and between eight and nine hwfd-eri dollur-t in money, frota Jeremiah Thompson, her former guardian p*ri fed.!),or. , Two years thereafter ho obtained an order from the same *482court, authorizing him to purchase a tract of land from one Samuel Thompson, the grandfather of his ward, and for her use and benefit. At the end of the year 1840, he made the purchase, taking a deed of conveyance to the land; reserving a life estate in one half thereof to Jeremiah Thompson. In March, 1841, Stell was dismissed from his guardianship, upon his own application. His ward having intermarried with Elijah Glass, a bill was filed by them against Stell and the two Thompsons ; alleging, among other things, that the order for the purchase of the land was procured by a fraudulent combination between all three of the parties ; and that the tract of land was bought and held for the use of the defendants, and not for the benefit of the minor. The bill prayed a general account and settlement. The defendants answered the bill, and at the March Term, 1844, the Superior Court of Fayette county, decreed generally for'the complainants the sum of four hundred dollars, the costs to be equally divided between the parties, and that the land remain the property of the complainants.
' From this decree John D. Stell alone appealed, and the cause was finally tried before Judge Hill, in March, 1846. Samuel Thompson having, in the mean time, departed this life ; Stell, by his counsel, insisted that the legal representative of S. Thompson should be made a party; but the objection was overruled, and the cause ordered to proceed.
Stell offered, among other witnesses, William McBride, the clerk of the Court of Ordinary at the time the order was procured, to prove that he bought the identical land designated in the order, and upon the same terms as were understood and agreed .upon between the court and himself. This testimony was repelled by the court. Stell then attempted to prove the amount and payment of sundry accounts, contracted for his ward before, but discharged after, his dismissal. This evidence was rejected.
The case having been submitted to the jury, the court charged : “ that the state of things contemplated by the statute (1829) did not exist; and that the defendant neither had the right to apply for, nor the court to grant, the order (for the purchase of the land) ; and that while nothing wrong might have been intended, it was a legal fraud upon the rights of the ward and should be set aside.” Further : “ that so far from the purchase beingsmanifestly for the advantage of the ward, as the law declares it must be, it was manifestly subversive of her interest, present and permanent, and the defendants should be decreed to keep the land, and pay the ward the money on hand, (i. e. given in payment, $>702,) and interest thereonP
The bill of exceptions tendered by defendant’s counsel, and signed and certified by the judge who presided at the trial, presents five distinct grounds of error:
1st. In refusing to require the legal representative of Samuel Thompson, deceased, who died intervening the first and second trial, to be made a party.
2d. In rejecting the parol evidence of the clerk of the Court of Ordinary.
3d. In not allowing the guardian to prove the payment of sundry debts contracted on account of his ward before, and paid after, his discharge.
4th. in charging the jury that the state of circumstances did not exist, which justified John D. Stell, the guardian, to apply for, or the Court of *483Ordinary to pass, the order of March, 1840, authorizing the purchase of the land named therein.
5th. In charging the jury, that the purchase made under the order of the Ordinary, was a fraud in law, and manifestly destructive of the interest of the ward, and that the guardian should be decreed to keep the land and pay his ward the money laid out and expended therefor, with interest.
1st. Had the complainant’s bill been framed differently, and for the single purpose of calling upon Stell, the former guardian, to account for the trust fund which came into his hands, in that aspect of the case it would not have been necessary to have made either of the Thompsons parties, nor would a demurrer, for want of proper parties, have been sustained.
And had they been joined as defendants, the death of one or both of them need not have arrested the progress of the proceedings. The complainant, however, has seen fit to insert their names, and to couple them with Stell, in a grave and substantial allegation, that the three fraudulently combined together to procure the passage of the order for the purchase of the land, and that it was bought and held for their benefit, and not for the use of the ward. And the bill seeks to have this conveyance canceled. The deed was made by Samuel Thompson, and reserves a life estate, in a moiety of the land, to Jeremiah Thompson. Are not the Thompsons, lather and son, deeply concerned in the cause ? They both answered the bill. The first finding charges them, together with Stell, with the payment of four hundred dollars, and vests the title to the land in the complainants. Samuel Thompson dies before the final trial; should not his representative be made a party ?
goes up, answer as the bona fides of the transaction is still strenuously contested ; and the jury upon the appeal decreed twelve hundred dollars for the complainants, and that the sale of the land be set aside. Can it be seriously contended that the estate of the deceased is not concerned in this issue ?
But it is argued, and with much force and ability, that, inasmuch as Samuel Thompson failed or refused to join with Stell in entering the appeal, the case, as to him, ended with the first verdict. This assumption necessarily involves the construction of the act of 1839, passed to explain and amend the judiciary of 1799, as to granting appeals in certain cases.
The preamble sets forth the mischief which induced its passage; namely, that a contrariety of opinion existed among the judges of the Stale, and a different practice prevailed in the various circuits thereof, touching the right to appeal under certain circumstances. The evil alluded to was this: Some of the courts decided, that where there was more than one party, plaintiff or defendant, it was necessary that all should unite in entering the appeal, in order to' carry the case up. To remedy this inconvenience, it was enacted :
Section 1st. “ That from and after the passage of this act, it shall and may bo lawful, whenever there shall be more than ore party, plaintiff or defendant, and ono or more of said parties, plaintiff or defendant, desire to appeal, and the other, or others, refuse or fail to appeal, it shall and may be lawful for any party, plaintiff or defendant, to enter his appeal, under such rules and regulations as are now provided by law.”
*484Section ‘M. “ That upon the appeal of either plaintiffs or defendants aforesaid, the whole record shall be taken up ; but in ease damages shall or may be awarded upon such appeal, such damages shall only be recovered against the party or parties appealing, and their securities, and not against the party or parties failing or refusing to appeal.”
Section 3d. “ That in case any such security or securities shall be compelled to pay off the debt or damages, for which the judgment may be entered in any cause, he, she, or they, shall have recourse only against the party or parties for whom he, she, or they, became security or securities.”
Section 4th. Repeals all laws and parts of laws militating against the act.
Perhaps a more striking illustration of incautious and improvident legislation is not to be found in the statute-book. Better, far, the old law, with all its faults, than the new, whatever interpretation may be put upon it. It is a Cretan labyrinth, with no thread to assist in ferreting out its inextricable windings. Did it intend to limit the rights of appeal to that class of cases only, which seem alone to be contemplated in the second and third sections, to wit, where damages might be given for n frivolous appeal, leaving the law as it stood before in all other cases i' Such would be the inference from these two sections — but such is not the restrictive language of the statute. What is meant by the whole record being carried up ?
If the original papers are sent up with the appeal — as they are and musí, be — what remains for the foundation of the judgment to be signed, and the execution to be issued against the parties who loiter behind ? Or is this to remain in abeyance until after the final decision ? If so, upon wlm principle ?
Take the case now before the court, and how irreconcilable this construction with the facts which it presents. There are three defendants, ritell and the two Thompsons. By the first verdict, the title to the land is vested in the complainants ; by the second, it is reinvested in Samuel Thompson, from whom it was purchased. To whom does it belong? The complainants below recovered four hundred dollars, ppon the basis c f retaining the land; above, twelve hundred dollars, in consideration < f relinquishing it. Can complainants collect the four hundred dollars out of the Thompsons, who failed to appeal and retain the land ; or twelve hundred dollars out of Stell, and surrender it ? Are these monied decrees independent of each other? Or will the satisfaction tof the latter extinguish the former, and of the former the latter, in whole or in part, pro tanto ? We will forbear to press these inquiries further.
On the other hand, does the carrying up of the whole record carry up all the parties to it? And il‘so, would not the intention of the Legislature, as expressed in the second section, be clearly contravened, in subjecting parties who failed or refused to appeal, to heavier liabilities then were recovered on the first trial, and that, too, when forced to litiga.'e further, without their consent and contrary 'to their wishes ? and this injury, inflicted frequently by the will of a minority, contrary to the principles of common justice. In the very case before us, parties who r >• fused to appeal from a verdict of four hundred dollars, are, or would be, if properly represented, subjected to the payment of twelve hundred. *485And yet, if the Legislature did not mean that tile parties failing or refusing to appeal, should, nevertheless, in some sense, be parties to the appeal, why protect them from the damages which might be assessed upon the appeal, and from recourse over, at tho instance of the securities on the appeal ?
Leaving these and numerous difficulties to be adjusted when they arise, wo are of the opinion, that O-unuel Thompson was so far a party to this case, on the final trial, as to make it n oessary that his legal representativo should have been substituted in his stead.
2:1. The competency of McBride will depend upon the object for which it is sought to introduce his testimony. Under the act of 1820, guardians are clothed with authority, under an older of the Court of Ordinary, to apply a portion of the disposable funds of their ward, to purchase such reasonable portion of land as may be necessary for cultivation by the slaves of the minor, when it is manifestly expedient to do so. Great discretion is allowed the guardian in this matter ; but whatever might be his o« a views of expediency, still the Legislature deemed it proper to submit the question to the Court of Ordinary for its supervision, before the guardian could act. His duly in As mode of executing this power is not prescribed as it is in the sale of property. It must, of course, be performed with proper care and circumspection ; and failing in this particular, he will bo answerable to his ward for the waste or misapplication of the funds so applied, and we are inclined to think that the order itself would not have shielded him from responsibility, had it contained the terms which he proposes to supply by parol. In that event, the court would have exceeded its jurisdiction, and, therefore, tho testimony, if legal, would not avail the defendant, nor do we believe it competent to vary or add to that order by oral proof. Still, we hold that the evidence was admissible for the purpose of rebutting the charge in the bill, that the order was fraudulently procured. The order being general, to buy land of Samuel Thompson, it might seem to condemn, on the lace of it, the conveyance which was taken, with the reservation in favor of Jeremiah Thompson. The evidence of McBride rebuts that inference, and shows that fitell fully, freely and fairly, communicated to the tribunal, peculiarly charged with the protection of orphans’ estates, his whole plan in respect to this transaction, and took their advice in the premises. It certainly disproves the imputation that the court was circumvented in granting the order, and that it was done, whether providently or not, with a complete knowledge of all the facts.
3d. Another question is, as to the rejection of the witnesses offered to prove the payment of certain debts contracted on account of the ward before, hut discharged after, the dismission of the guardian ? None of the pleadings show, whether these accounts wore made by the minor herself, or the guardian for her. Nor do we deem it material. In either event, there could bo no equity In asking a decree for the trust fund, without first deducting from it the debts and disbursements with which it was properly chargeable. It is true, that the propriety of it would have been more manifest if the guardian had incurred personal liability on account of those debts, before obtaining’ his letters. Suppose a guardian should bo removed by tho court before lie had an opportunity of settling his accounts, and making a return of them to *486the Court of Ordinary. Can it be for a moment doubted, that he would, 'in a bill for account, be allowed his credits for legitimate expenditures? It would be his misfortune that he had to resort to original proof, instead of easting the onus upon his adversary, by having returned his vouchers to the proper court, and thus made them prima facie evidence in his behalf. And a complaint, that he did not avail himself of this advantage, would not well lie in the mouth of his opponent. We are satisfied that the court committed error in refusing this testimony.
4th. Nor are we less upon this ground. The law constituted the Court of Ordinary, and not the judge of the Superior Court, the arbiter as to whether or not, in March, 1840, a state of circumstances existed, which made it proper for the Court of Ordinary to pass the order of that date. The act of 1829 allows the guardian to invest a portion of his ward’s funds in land, if it is expedient to do so ; and whether it be expedient or not, is an inquiry committed exclusively to the Inferior Court sitting for ordinary purposes, unless contested by appeal. The order on their minutes shows that they acted in the premises, and having jurisdiction over the subject matter, and the persons before them, their judgment cannot be impeached or invalidated in this manner.
The judge of the Superior Court gave his opinion upon the testimony as exhibited on the trial before him, in 1846. But can he undertake to say upon what proof the Court of Ordinary acted, in 1840 ? Be that as it may, that court, and that court alone, was the proper tribunal to entertain the application, and to pass the order for the purchase of the property.
And the legal presumption is, that that court had sufficient evidence to warrant it in passing the order. — Dubois vs. Dubois, 6 Cowen Rep. 494. It may have acted unadvisedly;' probably did, if the pecuniary interest alone of the ward was considered. It is wholly immaterial. The order being passed by a court of competent jurisdiction, and acting-within the sphere of its authority, its proceedings cannot be attacked and set aside in this indirect manner.— 1 Pick. Rep. 435; 6 ibid. 223; 10 ibid. 470; 4 Day’s Rep. 432 ; 3 Johns. Rep. 17; 19 ibid. 39; 11 Mass. Rep. 445; 12 ibid. 25, 268; 1 Peter’s Rep, 74; 7 Cranch, 483, 567; 2 Nott and McCord, 410: 6 Sergt. and Rawle, 57; 7 ibid. 166; 11 ibid. 436; 4 Gill and John. 1.
The Court of Ordinary, upon the point before them, acted judicially, and any error which may have been committed, cannot affect their jurisdiction, and take it away, because improperly exercised. — 6 John. Ch. Rep. 381; 8 John. Rep. 50; 8 Cowen Rep. 178; 3 Cowen, 206; 3 Ohio Rep. 567; 7 Mass. Rep. 79; 1 Peter’s Rep. 340.
5th. Great latitude of discretion is allowed to courts, as to the direction they will give to the testimony. And while all admit the soundness of the maxim, ad queestionem juris respondeant judices, ad queestionem facti respondeant juralores ; that the judges are to answer to the question of law, and the jurors to the matter of fact; still, it is impossible to lay down any fixed rule, beyond which the judged shall not go, in expressing their opinion on the evidence, by way of charge to the jury ; it is better, in this country, that they come short, than transcend, the limits assigned them..
The elementary writers, and reported eases, concur in maintaining, *487that if tho judge dictates to the jury the verdict, they shall render or deliver his opinion to tho jury on a matter of fact,-rather as direction, than mere opinion ; that the charge should be reviewed for misdirection.
In the Utica Insurance Company vs. Badger, the court granted a new trial, because the judge erred in not leaving it to the jury, under proper instructions, to say whether the endorsement was, or was not, the hand-writing of the defendant.
The judge below simply charged the jury that the plaintiffs were entitled to a verdict.
In Aylwin vs. Ulmer, (12 Mass. Rep. 22,) the judgment of tho Court of Common Pleas was reversed, and a venire facias de nooo awarded, because “ the charge was calculated to make the jury understand, that the evidence offered was wholly insufficient. This was undertaking to judge for the jury, and amounted to a declaration to them, that any consideration of the evidence was wholly unnecessary. They must have received the impression, that by law, they could not, on that evidence, find a verdict for the plaintiff ” So, in Tufts vs. Seabury, (11 Pick. Rep. 142,) the verdict was sot asido, and a now trial granted, although justice had been done in the case; because the judge instructed the jury that certain testimony proved a material fact, when, in truth, it was only evidence from which tho jury might or might not have presumed such fact, and a verdict was rendered in conformity to the instruction.
In Morton vs. Fairbanks, (11 Pick. Rep. 370,) in a controversy abont shingles, the court below took upon itself to charge the jury, from a personal inspection of the articles, which were brought into court, that they were not shingles. Upon this and another exception, a now trial was granted, on the ground “ that the point thus decided, was a question of fact, and the jury may have been unduly influenced, for they may have considered themselves not at liberty to find contrary to the decision of the court.
In Fisher's Fxecutor vs. Duncan and Turnbull, (1 Hen. and Man. 563,) the Supreme Court of Virginia decided, that the County Court, on the trial below, erred, “ in having instructed the jury, that from the whole testimony before them, the demand of the plaintiff was not barred fey the act of limitations; ” and Judge Fleming declared, that he conceived this to have been an improper interference and an infringement on the privileges of the jury, whose right it is to judge of tho sufficiency of the evidence adduced t-o establish any fact, or facts, in the issue before them; the province, of the court being to see that all proper evidence offered (and none other) be submitted to the consideration of the jury, without saying what effect such evidence ought to have in the, cause.
So far is this doctrine extended in this State, (Va.) that the judges do not proceed to sum up the evidence, as is usual in England, and some oí the other States; “ a course,” says Judge Tucker,<( which would, probably, he deemed with us an invasion of the privileges of jury trial.” — Commentaries, vol. 2,299.
In the New York Fire Insurance Company vs. Walden, John. Reports, 512,) the court say: “ And here, 1 apprehend, lies the error committed by the learned judge: that he has given a binding direction to the jury, upon matter of fact, as if it had been matter of law. If the charge had been intended as a more opinion to the jury, on a matter of *488fact, on which they were to exercise their judgment, the jury would, undoubtedly, have been told, that the defence in the ease rested upon the question of the materiality of the letters and facts not disclosed, and that it was for them to judge, from the evidence, whether the disclosure would have varied the premium; and, that, if the jury should be of the opinion that the facts not disclosed were, in that sense, material, they must find for the defendant ; and that,.if they thought otherwise, they ought to find for the plaintiffs. This would have been the language of a charge, suited to the submission of such a point. •
“In order to preserve a just balance between the distinct powers of the court and the jury, and that the p artios may enj oy unimp aire d vigor— their constitutional right of having the law decided by the court, and of having the facts decided by the jury — every charge should distinguish clearly between the law and the fact, so that the jury cannot misunderstand their rights, or their duty, nor mistake the opinion of'the judge, upon matter of fact, for his direction in point of law. . The distinction is all-important to the jury. The direction of the judge in the one case is obligatory upon their consciences, and so they will,’ and so they ought, to regard it; but his opinion in the other case is mere advice, and the jury are bound to decide for themselves, notwithstanding the opinion of the judge, and to follow that opinion no further than it corresponds with the conclusions of their own judgments. Unless this distinction be kept steadily in view, and be dejined with, all possible precision, the trial by jury may, in time, be broken down, and rendered nominal and useless.-
“ All that I feel it my duty to contend for is, that whenever the ‘judge (delivers his opinion to the jury, on a matter of fact, it shall be delivered as mere opinion, and not as direction; and that the jury shall be left to understand, clearly, that they are' to decide the fact, upon their own view of the evidence, and that the judge interposes his opinion only to aid them in cases of difficulty, or to inspire them with confidence in cases of doubt.
“ I am disposed to hand to posterity the institution of juries, as perfect, in all respects, as we now enjoy it; for I believe it may, in time! hereafter, be found to be no inconsiderable security against the systematic influence and tyranny of party spirit in inferior tribunals.”
I have felt it my duty to .transcribe into this opinion these eloquent remarks of the learned chancellor, alike creditable to his head and heart. Were their spirit more thoroughly infused into our system, we should no longer hear jt cast upon it as a reproach, that the use of a jury is merely to screen the court from the responsibility and odium of a decision, which is, in fact, in most cases, the result of the judge’s own view of the testimony. It is needless to preserve the form of trial by jury, h that body is deprived of its just powers and privileges. Under the infamous Stuarts, and their still more infamous tool, Lord Jeffries, it was, literally, “a nose of wax,” to be moulded as the judge saw fit; and it should never be forgotten that Sydney and Russel were doomed to death, by a jury of the country l
From an examination of the evidence, we are inclined to agree wit! the court whose judgment we have under review, that the trust confided to Stell, the guardian, was injudiciously exercised, and that no fault caji be found with the verdict of the jury; still we cannot seal with otv *489sanction a charge, which declares, authoritatively, that the defendant should be decreed to keep the land, and pay the ward the money on hand, (the purchase-money,) with interest. This is not the expression merely of an opinion, but is the very language of direction from the bench. In the case in 12 Johnson there is a precedent of a bill of exceptions, taken from 3 Burr. 1742, to a charge by Lord Camden; and it is in these words: “And the said chief ju -lice did then and there declare and deliver his opinion to the jury, iliat the said several matters, so produced and proved on the part ol the defendants, were not, upon the whole case, sufficient to bar the action, and with that opinion left the same to the jury.” “In this case from Burrow,” say the Court of Errors of it, ( Ter. 35,) “it was never doubted but that the opinion of the chief justice, so stated in that bill, was taken and received as a direction in point of law; and if the charge in the case before us is not deemed of that character, it will be impossible hereafter to discriminate between a charge containing a positive direction in point of law, and mere advice on a matter of fact.”
We are satisfied that no one values more highly the independence of “ this body of twelve ” than the learned and upright judge who made this charge ; and that ho would bo one of the last to trench intentionally upon the rights and privileges of those who are selected to decide upon the estates, freedom and life of their fellow-citizens. Wo are constrained, from'regard to principle, however, to sustain the exception.
Let the judgment be reversed.