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Speer vs. Tinsley et al.

the exemplification of the record of the court of ordinary in relation to the estate of T. H. L. Tinsley. Defendant was his guardian, and the two complainants were two of his heirs; and we think it was competent to show, in this settlement before the ordinary, and appeal therefrom, defendant's indebtedness to complainants in this behalf. It was all in defendant's hands; equity abhors circuity and multiplicity of suits; and this proceeding for a settlement before the ordinary is in the stead and nature of a bill in equity; the complainants were heirs of their deceased brother, and entitled to recover their share from their guardian, especially as he was bound to collect it, and had nothing to do but to collect it from himself. It was in his own hands.

3. Again, it is urged that the court erred in not allowing the defendant to prove that no funds ever came into his hands belonging to these wards ; and if any, how much, in what and where. We suppose that this means that the court refused to allow the defendant to set up by proof the plea which had been overruled on demurrer, and to show that, though he had charged himself with the funds of his wards, and had given indulgence to Thompson, and taken mortgages from him on time, and traded with him individually, until, by emancipation of the slaves, and otherwise, Thompson became insolvent, he ought to be allowed to contradict his returns, and make his wards pocket the loss sustained by his own credit of Thompson, his neglect to sue him, and his general laches. We think the court right in rejecting the evidence.

4. The remaining error assigned is, that the court erred in charging, substantially, that the guardian was bound to confine the annual expenses of his ward to the interest of that particular year, and not to allow the interest of the year before, if any had accumulated, to go to the support or education of the ward without leave of the ordinary. In other words, that if interest any given year was in excess of the actual expenditure for the ward that year, it became principal or part of the corpus of the estate, and could not be drawn upon any subsequent year when the ward's expenses became

Speer vs. Tinsley et al.

heavier, without leave of the ordinary. It seems to us that the object of the statute is to preserve the corpus of the estate of the ward received by the guardian. That corpus is sacred, and must not be touched without leave of the ordinary. If the guardian does use it, he does so at his peril, and will be held responsible therefor. But if he can show that the corpus is intact, and that he has only allowed liis ward to expend the interest of the estate for the time he has managed the trust estate, though not spending all some years, and going over the income other years, we think he should not be held accountable therefor, provided he shows that the expenditure of such interest for the series of years was only “reasonable disbursements and expenses suitable to the circumstances of the orphan committed to his care.” In the earlier infancy of the child, the expenses would be quite small; when old enough to go to school, larger; when a young lady, much larger ; and if the interest or profits not expended when she was a little girl, added to the annual profits when she became a young lady, was but a reasonable expenditure suited to her circumstances, we do not think the guardian would act illegally in permitting it to be spent. One year there might be sickness, or other providential circumstances, increasing the ordinary expenses of the ward, and if profits or interest have accumulated, the guardian, it seems to us, might well use such accumulation, and need not put the estate to the expense of getting an order from the court of ordinary therefor. Such is, to our minds, the reason and spirit of the sections of the Code, construing them together, bearing upon this subject; and we think the court erred in construing them differently, though he may have used a part of the language of the Code. The sense and meaning of it should have been given to the jury: Code, sections 1824, 1825.

Understanding from the record and the argument of counsel that the jury acted upon this construction of the law by the court, and that it will make a considerable difference in the verdict, we overrule the judgment refusing the new trial, and send the case back, holding and ruling that if this guardian

Ware vs. Simmons.

has accounted for any of the interest in excess of expenditure by his ward for a given year by showing that it was expended by the ward in subsequent years, he should not be chargeable with with such excess of interest; and if, in a given year, he expended more than the profits of that year, but during the entire time of the infancy of the ward and his guardianship, the corpus was not entrenched upon but only the interest or profits was expended, he is not chargeable with such interest or profits; provided, always, that he show to the satisfaction of the jury that such interest or profits was expended reasonably and suitably to the circumstances of the ward, and lawfully in other respects.

Judgment reversed.

HENRY WARE, plaintiff in error, v8. FREDERICK SIMMONS,

defendant in error.

1. Where a verbal contract was entered into between W. and H., by which

the former agreed to furnish the latter supplies with which to make a crop, and H. agreed to deliver to said W. the crop out of which he was to reimburse himself for the supplies furnished, turning over the surplus to H., no lien upon said crop was created in favor of W.; and where H. had delivered a portion of the crop to S. under a contract with him for his labor in making the same, and W. deprived him thereof, claiming it under his

contract with H., an action of trover was properly maintained therefor. 2. The plaintiff, in an action of trover, is not entitled to recover the highest

proven value of the cotton sued for with interest thereon.

Trover. Contracts. Lien. Interest. Before Judge JAMES Johnson. Muscogee Superior Court. November Term, 1874.

Reported in the decision.

J. M. RUSSELL, for plaintiff in error.

J. M. MCNEIL; B. A. THORNTON, for defendant.

Ware vs. Simmons.

WARNER, Chief Justice.

This was an action of trover brought by the plaintiff against the defendant to recover the possession of one bale of cotton weighing four hundred and fifty pounds, of the alleged value of $90 00. On the trial of the case on an appeal from a justice's court, in the superior court, the jury, under the charge of the court, found a verdict for the plaintiff for the sum of $96 00. The defendant made a motion for a new trial on the grounds stated therein, which was overruled by the court, and the defendant excepted. It appears from the evidence in the record that the defendant was the owner of a certain described plantation and the stock thereon, that he rented the same for the year 1870 to one Harrison, by a verbal contract, the terms of which were that Harrison was to cultivate the place, and furnish the labor, and give defendant one-half of the crop for the use of the land and mules; defendant was to furnish supplies to him, and the other half of the

crop was to be turned over by Harrison to defendant, to be sold by him for the payment of the supplies, and what remained after paying for all supplies, was to be paid over to Harrison. The plaintiff was a laborer employed by Harrison to cultivate the defendant's land, and he was to give him one-third of all he made, and the bale of cotton in controversy is a part of the crop which the plaintiff made on the place under his contract with Harrison, and which had been delivered to the plaintiff by Long, the agent of Harrison, and was in his possession when the defendant took it from him against his consent, and sold it in Columbus. The plaintiff asked the defendant for the cotton, and he refused to give it up. The plaintiff proved the weight and value of the cotton. The defendant proved that what Harrison turned over to him in payment for supplies lacked about $1,000 00 of paying for the supplies furnished. It also appears from the evidence that the plaintiff knew what were the terms of the contract between defendant and Harrison, and that plaintiff was indebted to Harrison $120 00 for supplies furnished by the latter to him. The de

Ware vs. Simmons.

fendant claims the cotton under his contract with Harrison in payment of what he owes him for the supplies furnished him, under that contract. The grounds of the motion for a new trial were as follows:

1st. Because the court erred in charging the jury: “If Harrison rented the lands and mules of the defendant for a year, and if, under such a contract of renting, said Harrison went into possession thereof and raised corn and cotton on said place, the corn and cotton thus raised was the property of Harrison, although defendant agreed to furnish Harrison with supplies, and to be paid therefor out of the crop. Further, if the plaintiff, with a knowlege of such contract, contracted with Harrison to work on the place, and to be paid for his labor in a certain portion of the crop, and did, in pursuance of such a contract, work on the place for Harrison, and if after so working, said Harrison, by himself or his agent, divided said crop between himself and said plaintiff, and by said division set apart said bale of cotton sued for as the portion of said plaintiff, and said plaintiff took possession of it, said bale of cotton thereby became the property of the plaintiff, and said defendant was not authorized to take said bale of cotton for a debt due him by Harrison for supplies furnished, nor for any balance that plaintiff might owe to said Harrison."

2d. Because the court erred in this, to-wit: After having charged the jury, at thė request of plaintiff's counsel, “ that they might find the highest proven value of the cotton from time of conversion to commencement of the suit," when the jury returned their veriliet“ for $75 00 for his principal, and the sum of $21 00 as interest," and said verdict was read to the court, in directing them to change their verdict to, “We, the jury, find for the plaintiff the sum of $96 00 for his principal,” that principal and interest might be consolidated.

3d. Because the jury found a verdict contrary to law.

4th. Because the jury found a verdict clecidedly against the weight of evidence.

1. The contract between the defendant and Harrison being

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