By the Court.
delivering the opinion
This is a bill by Cyrus A. Roysfon and wife,.against the administratrix of George D. Royston, who was guardian of the wife, for an account of his ward’s estate. Each party brings a writ of error, but by combining the two cases, each side assigns error in this case, wherein the complainants below are plaintiffs in error.
[1.] The first assignment of error by the complainants, is the refusal of the Court to strike out, as impertinent, a portion of defendant’s answer, instituting an invidious comparison between this complainant and one Swain, who stood in the same position, but who is represented as having'acted a much more generous part. It was conceded in the argument that this portion of the answer was not pertinent, and was calculated to injure complainant’s case, but it was insisted that the motion to strike it, coming after replication, was too late. Such seems to be the rule under the English system of equity, but the reason for the rule under that system does not apply under ours. There to have an answer purged of impertinence or scandal, it must be referred to a master. This involves delay, and hence will not be allowed generally, after the case is ready for a hearing. But here it is done by the Judge, on motion, at any time before the case is submitted to the jury, and one time for it involves no more delay than another. Cessante ratione legis, cessat lex. We think the Court erred in refusing to purge the answer.
[3.] The contested items in the account were mainly rent and interest, and the next assignment of error is the allowance by the Court of evidence to show, by way of reducing rent, how much value was added to the ward’s land by improvements put on it by the guardian, while it was in his hands. We think there was no error here. It was proper that the guardian should be credited with the value of the improvements made by him, but at the same time he should have been charged with the rent as increased by that super-added value to the land.
[4.] We think the next assignment of error is bad. It was proper to admit evidence showing that neighboring plantations lay idle during some years while the guardian had possession of this plantation, for this was a circumstance legitimately tending to lessen the rent, by showing the dull demand for lands. Nor was there any error in admitting evidence that it was very common for renting plantations to be rented once in every four or five years, for no price but repairs, nor in admitting evidence of what rent other similar-lands, in the same neighborhood, brought during the same years. The thing to be proven was the market value of the rent — a matter of judgment, and he who has reasons for his judgment is, at least, as good a witness as he who has none.-'
[5.] The next assignment of error is by the defendant She, as administratrix of the guardian, offered to put in evidence returns made by her of moneys paid out by her after the death of the guardian, and also of moneys paid out by the guardian in his life-time, but not returned by him to the Court of Ordinary. We think this evidence was properly rejected by the Court. There is no law' authorizing the administrator of a deceased guardian to make returns for him. These items ought to have been proven in the same manner as all other unreturned items.
[6.] The defendant was allowed, against the objection of complainants, to give in evidence the sayings of the guardian to show at what rate of interest he had lent his ward’s money, and also to show that in relation to a certain sum which he had lent to Chaffin, and for which the ward was seeking to hold him liable on account of his negligence, he had used the same care and diligence that he had used with his own money. A fatal objection to the evidence is, that it was his sayings in his own favor, offered by himself. It was improperly admitted.
[7.] The defendant was allowed, against the objection of complainant, to give evidence of her having to resort to law in order to collect the money which had been lent out for the ward by the guardian, and of reasonable attorney’s fees for these collections. We think this was proper evidence, taking strict care to confine it to collections of moneys which were certainly the ward’s.
[8.] The evidence being closed, the complainants asked the Court to charge the jury, that if the guardian had failed to make return of his acts by the 10th day of January, for any year prior to 1850, he had forfeited his commissions on the whole estate. The Court refused so to charge, but charged instead that he was entitled to commissions on all returns which had been made in time. We think the charge
[9.] On the charge in relation to interest both sides assign error, and without repeating what the charge was, I will state what we conceive the true rule of interest to be. Up to the 1st of January, 1848, when the Legislature prescribed a rule from that time forth, we think simple interest the rule, and compound interest the exception — simple interest unless there be fraud or gross negligence on the part of the guardian, and' in case of such fraud or gross negligence, then compound interest, the compounding to be done at the end of each six years. And therr.ie of interest, whether simple or compound, is eight per cent, per annum up to the 1st January, 184'6, and after that, seven percent, per annum up to the 1st of January, 1848. After 1st January, 1S4S, the Legislature has prescribed a rule of its own. For trustees, who were such at the passage of the Act, (as this obe was,) that rule is seven per cent, per annum for the first six years from and after the 1st January, 1848, without compounding, and afterwards six per cent, per annum, compounded annually.
[10.] We think the Court properly refused to charge the jury, as he was asked in substance to do, that the guardian’s failure to make returns of the accumulating interest in his hands was a circumstance by itself, authorizing them to find fraud and charge compound interest. It is very seldom that trustees do make returns of such interest accumulating in their hands. It is very proper they should do so, but their failure is not sufficient ofitself to authorize the conclusion of fraud. To so hold, would be to taint nine-tenths of all tho returns in the country with fraud, at a single blast. Wo
[11.] We think the disbursements of the guardian ought to have been made out of interest, and not out of the principal. There is some difficulty in understanding what the charge was on this point, and we simply pass it with stating what it ought to have been.
[12.] We think the Court committed no error in charging ' the jury, that the guardian was entitled each year to retain in his hands, without interest, from the beginning of the year, enough of the funds to cover his disbursements for that year. It would be unreasonable to charge him with interest on a fund which he must hold and not use, in order to meet, as is his duty to do, the current expenses of the year.
[13.] Another point in the record is, in relation to the guardian’s commissions upon interest. The conclusion to which this Court came on this subject is as follows: It is not a matter of course that the guardian is to have ten per cent, commission on all interest. The lowest limit is two and one-half per cent., for by the statute he is entitled to two and one-half per cent, on all sums “ paid away in debts, legacies, or otherwise,” and as the interest must be paid away by him in his settlement with his ward, he is entitled to two and one-half per cent, on that, as on principal. On the other hand, ten per cent, is the highest limit to which he may reach or not, according to the opinion which the jury may entertain of the skill and fidelity with which he has managed the estate-
Judgment reversed.