
    Sarah Walker & Thomas Walker Executrix & Executor of Thomas R. Walker Deceased v. Thomas Walke.
    
    April Term, 1796.
    Paper Money — Scale of Depreciation — Payments by Guardians. — Payments by a former to a subsequent guardian, in depreciated paper money, should be accounted for at their nominal amount, and are not subject to the scale of depreciation.
    Guardianship-- — Termination of — Appointment of Successor. — By the appointment of a second guardian, in the room of a former one, the power of the former, as well as Ills habit of receiving- and disbursing- moneys, generally, on account of the -ward, ceases; and therefore, payments made by him in depreciated paper money to the subsequent guardian, are not subject to the scale.
    The appellee filed his bill in the Countj' Court of Princess Anne, stating, that the said Thomas R. Walker was appointed his guardian, and in the year 1776 was indebted to the plaintiff, ¿1313: 12: 0:34 > as appeared by his guardianship accounts, settled and filed in the County Court. That in the year the said Thomas R. Walker, paid to John Thoroughgood, the subsequent guardian of the plaintiff, ¿854: 3: 3 in bonds, leaving a balance of ¿468: 8: 834 still due. The prayer of the bill is for payment of this balance with interest.
    The answer states, that after the appointment of Thoroughgood as guardian to the plaintiff, he and the testator, Thomas R. Walker, settled the accounts of the latter, and stated a balance then due to the plaintiff, of ¿244: 12: 2. That they have understood, that in the year 1787, after the plaintiff came of age, he accepted a bond from the said testator for the above balance. They state a small payment since, and are ready to discharge the balance still due.
    Amongst the exhibits filed in this cause, is a letter from Thoroughgood, to the testator, Thomas R. Walker, dated in June 1786, enclosing a blank bond, with a request, that the testator would settle the balance due to the ward, (the present plaintiff,) fill up the bond with the sum due, and return it executed. The writer also acknowledges in this letter, the receipt of 4)300, in January 1780, “which” he says “will, according to the scale *of depreciation amount to ¿7: 10 specie, and being deducted from the balance now on the books of the said testator, will be the amount in which he is indebted.” He also adds, “that the testator should not complain of hardship in the settlement, as a great part of the money paid by the testator, was received by him in paper money according to its nominal amount.” In answer to this letter, (also dated in June 1786,) the testator promises to prepare for the settlement, and adds, “that he shall say no more about hardships, being fully satisfied that all debts should be settled.”
    The bond was accordingly filled up with the sum of ¿244, and returned: it was af-terwards accepted by the plaintiff without ■objection, except, that by letter, he required a bond from the testator for the amount of the interest on the ¿244, from a date anterior to the principal bond; this bond for interest was not given.
    The cause coming on to be heard, on the bill, answer, replication and exhibits, an account was directed. The commissioners report a balance of 43784 : 4 due the plaintiff, with interest. In this account they reduce the ¿300 by the scale of January 1780; they also make a special report, stating the bond above mentioned, amongst other exhibits, but give it as their opinion, that the plaintiff was not bound by the settlement, nor by his letter to the testator, since the terms of it were not accepted.
    The report not being excepted to, a decree was made confirming it, from which the defendants appealed.
    The High Court of Chancery directed an account to be settled, before one of the masters of that court.
    To the report made by the master, exceptions were filed, and amongst others, the following; viü; that the settlement with Thoroughgood ought to be established; and if not, the payments in paper money ought to be credited at their nominal amount, and not according to the scale.
    The exceptions being over-ruled, the decree of the County Court was affirmed, and an appeal was prayed to this court.
    Marshall for the appellant.
    The settlement between the first and second guardian was binding upon the ward, unless unfairness or collusion between them in making it, had been charged, and proved. But if I am incorrect in this, I contend, that the pa3rments made to the second guardian in paper money, ought not to have been scaled. The act of 1781, Ch. 22, is too clear upon this subject to be misunderstood; it declares, that all ’x'payments, either to the full amount, or in part discharge of any debt, are to be credited at their nominal amount. Nothing I conceive, but the agreement of parlies could vary this rule.
    It is true, that in this case, the payments were scaled by the settlement, but this was part of the settlement, and if the settlement be annulled, the agreement to scale has equally lost its obligation upon the parties; for surely, the court will not set aside the former, and bind the parties by the latter, when both constitute one entire act.
    Campbell for the appellee.
    This is the common case of a ward calling upon his guardian for an account. The guardian attempts to avoid it, by insisting upon a settlement made with the former guardian; a fact not responsive to the bill, and therefore not to be noticed, further, than as he could prove it to be correct and fair. That it was either, in this case, cannot be contended.
    As to the payments made by the guardian, they ought to be scaled. That clause of the act of 1781, Ch. 22, which declares, that payments made of any sum, either to the full amount, or in part payment of any debt, should be credited at the nominal amount, was never considered as being applicable to cases of running accounts.
    Wickham on the same side.
    I consider it as an important question, whether the exception to the master’s report, can avail the appellant, as it was not originally taken to the report made in the County Court.
    I doubt very much the power of the High Court of Chancery, acting as an appellate court, to direct an account. The decree such, as it appeared upon the record, should havé been affirmed, or reversed and remanded ; and if so, the former must have taken place, since the report on which the decree sought to be reversed, was founded, was not excepted to. As well mig-ht this court direct an account, and upon the report, make a decree corresponding with it, but this was never yet attempted. The reference in this case was only for the purpose of calculation, and was not intended to open the decree.
    As to the merits, I lay it down, that nothing can discharge the guardian from accounting, but a settlement with the ward, after his attaining full age. Payments to the second guardian, would I admit, be valid, but a settlement would not. Great inconvenience might result from a contrary doctrine; the second guardian might with the best intentions be imposed upon; and yet he might repel the claim of the ward, by saying, he was a trustee, and acted *with good faith, and therefore should not be charged; and the first guardian would defend himself by the settlement.
    But in this case, no settlement appears. One guardian demands it of the other, and calls for a bond for the balance: a bond is given, but no settlement is made.
    The consent of the appellant to be accountable by the scale, forms no part of the settlement, but is antecedent to it.
    The act of 1781 wigth respect to partial payments, is never applied to items in un-liquidated, running accounts, and so it has been often settled in this court. But certainly it can never apply in the case of a trustee.
    Marshall in reply.
    There is no doubt,
    but that the Chancellor may, upon an appeal, open the decree, and if necessary, direct a new settlement of the accounts; he is in the constant practice of doing so, and I have never before known it questioned.
    In Humphrey and Smith, this court reversed the Chancellor’s decree, because a calculation had not been made by the master, which any person might have made in one minute.
    But be this as it may-; if the error appear in the decree of the County Court, or is apparent upon the face of the account, it will be sufficient to reverse the decree of the High Court of Chancerj', although no exception was specially taken; for an exception is not necessary, where the error appears, either upon the face of the account, or in a special report. The use of an exception is, to bring into view such objections to the report, as do not appear upon the face of it.
    In this case, the commissioners have stated specially, the ground upon which the account is settled, and the court are at liberty to say, if they decided right or not.
    But it is contended, that no settlement was made; we see a letter respecting a settlement, with an admission of the sum then due, an account, and a bond for the balance, in the possession, first of the guardian, and then of the ward. Suppose that the ward was not originally bound by the settlement; he is certainly concluded by his Subsequent consent to, and ratification of it.
    This consent is proved by his having possession of the bond aft@r his arrival at age, and his letter to the testator, demanding a bond for the interest due on the £244.
    It is then said, that in cases of this sort, we are not entitled to a credit for payments at their nominal amount, and that the point has been so decided in this court. If such
    have been the decisions, I am a stranger' to them.
    *The testator ceased to be guardian-'before depreciation began; Thorough-good succeeded him in that office, which completely closed the accounts of the former; the balance then due, whether’ liquidated or not, was a debt to be paid; no-further items could be introduced into it but’ payments, and these, wheh made, were like-all other payments.
    It is objected, that Walker was a trustee;; so he was until he ceased to be a guardian ;. but whether he was or was not, it has been determined in this court, in the case of" Sallee and Yates, and Granberry and Gran-berry, that payments made by an executor to the estate he represented, and entered on his books, should be credited at their nominal amount.
    We are then brought to consider, whether this right to a credit at the nominal amount has been abandoned. It is not true as was-contended, that the consent of the testator to scale, preceded the settlement; but if it were, the principle of the settlement is thereby established, and if the settlement be set aside, it would be monstrous to bind' the testator by his concessions in that letter, which were made in order to produce the settlement.
    
      
      The principal case is cited in Jennings v. Jennings, 22 G-ratt. 320.
    
    
      
      See monographic note on “Guardian and Ward” appended to Barnum v. Frost, 17 Gratt. 398.
    
   ROANE, J.

Upon the appointment of Thoroughgood, in 1776, as guardian of the appellee, the character of the appellant’s testator as guardian ceased, and with it, his liability to pay and receive monies generally, on account of his ward. Consequently, any payment by him thereafter, to the succeeding guardian, should be considered as a payment on account of a debt admitted to be due. And the receipt for £300, given by Thorqughgood, in January 1780, which uses the terms “,£300 in part of your account with T. Walke” strongly imports, that that money was received in part of a debt, due from the testator to the appellee as his former guardian ; of course, that payment, must, according to the second section of the act of Assembly, directing the mode of adjusting and settling certain debts and contracts, and agreeably to prior decisions by this court, be credited at its nominal amount.

If the letter of the appellant’s testator of June 1786, can be construed into an admission, that the payment of the £300 should be subjected to the scale of depreciation, it was made in consequence of an offer of Thoroughgood, in his letter of the same dp.te, to accept a settlement made by the said testator from his books, according to the tenor of that letter; and the appellee, by bringing this suit, having departed from-the settlement so made, or expected *to be made by the testator, the admission, if it can be considered in that light, (for the expressions are extremely vague and indefinite as to that,) is no longer binding upon the representatives of the testator.

I am therefore of opinion, that the decree-is erroneous in not allowing the credit for the £300, as its nominal amount.

The COURT gave the following opinion decree viz; “By the appointment of John Thoroughgood to the guardianship of the appellee, the guardianship of the appellant’s testator, as also his habit of receiving ,and disbursing monies generally, on account of the appellee, having ceased, the receipt thereafter of any money by the said John 'Thoroughgood, from the said preceding .guardian, should be considered as a payment on account of a debt, admitted to be due from him as guardian aforesaid; that by authority of the act of the General Assembly passed in 1781, entitled “an act directing the mode of adjusting and settling the payment of certain debts and contracts, and for other purposes” and in conformity •to former decisions by this court, the payment of £300, made the 3d of January 1780, 'by the appellant’s testator to the subsequent guardian, was not subject to the operation of the scale of depreciation: That there is error in the decree of the High Court of ■Chancery, permitting that payment to stand reduced, and that there is no error in the residue of the said decree, therefore &c. ”  