
    Isler & Wife v. Grove & Wife.
    October Term, 1851,
    Richmond.
    (Absent Cabell, P.)
    Issue Out of .Chancery — When Proper — Case at Bar.— Where the subject matter in controversy is of the nature of estimated and unliquidated damages, and the accuracy and credit of the witnesses is impeached, an issue should be directed.
    Benjamin Beeler of Jefferson county died in 1827, leaving a widow and several children ; three of whom were by his last wife. Mrs. Beeler lived on the land on which her husband had lived, without any assignment of dower until 1833, when she married Abraham Isler. During her widowhood her three children lived with her; and on her marriage Isler qualified as their guardian; and at that time the daughter Mary W. Beeler was about fifteen years old. In 1835 the land was divided, and Isler held the share of his ward Mary W. Beeler until she arrived at the age of twenty-one years; and soon after that period she was married to George G. Grove. Isler settled his guardianship accounts in 1836 and 1839; the last time after Mary W. Beeler had come of age; and according to these accounts *he was in advance to his ward 109 dollars 24 cents.
    In 1839 George G. Grove and his wife filed their bill in the Circuit court of Jefferson county, against Isler and wife, in which they charged that the accounts had been improperly settled; and asked for a settlement of the account of Mrs. Isler whilst she acted as guardian de facto of the female plaintiff; and of the account of Isler after his qualification.
    The defendants demurred to the bill for multifariousness, and also answered; but the Court overruled the demurrer, and directed the accounts as asked for in the bill. Under this decree the commissioner reported that the plaintiffs had not required him to take an account of Mrs. Isler’s act-ings before her marriage, and it therefore had not been taken. He reported an account of Isler’s actings as guardian, based upon the accounts previously settled, lessening a credit to the guardian for the board for a period of six months, when she was absent from his house; and adding several charges for wood cut and rails removed from the land of his ward; and by these alteration in the account bringing Isler in debt to his ward on the 1st of January 1839, 174 dollars 12 cents.
    To this report Isler filed eight exceptions, all of them having reference to the charge for the wood and rails alleged to have been taken from the land of the female plaintiff. The commissioner returned with his report the depositions taken upon this subject; and they shewed that there were numerous witnesses whose testimony was conflicting and contradictory; and one of the most important witnesses for the plaintiffs was impeached.
    The cause came on to be heard in October 1844, when the Court reduced the price at which the rails were charged to 2 dollars SO cents a hundred, making due from Isler 152 dollars 87 cents, and overruling all *the other exceptions, gave the plaintiffs a decree for that sum, with interest from the 1st of January 1839 until paid and their costs. From this decree Isler and wife applied to this Court for an appeal, which was allowed.
    Cooke, for the appellants.
    Watkins, for the appellees.
    
      
      See monographic note on “Issue Out of Chancery” appended to Lavell v. Gold, 25 Gratt. 473.
    
   ADDEN, J.,

delivered the opinion of the Court.

The Court is of opinion, that as the accuracy and credit of the testimony relied upon to sustain the items of the master commissioner’s report, which were excepted to in the eight exceptions filed by the appellants to said report, were impeached, an issue should have been directed, as a jury with the witnesses before them would have been better enabled to test their accuracy and weigh their credit than a commissioner or the Court. The case too from the character of the claim was peculiarly proper for an issue; for although it was competent for the appellees to make the alleged profits received and made by the guardian from the use and sale of the timber taken from the ward’s estate a matter of account; yet the extent of the charge on this account, if .any was proper, depends upon estimate, and is in the nature of unliquidated damages, and therefore should have been submitted to a jury. The Court is therefore of opinion, that the decree is erroneous, and the same is reversed with costs. And the cause is remanded, with instructions to direct an issue to ascertain and try whether any timber not accounted for by the appellant in his accounts rendered, was taken by him from the lands of the ward, and sold or converted to his own use; and what sum would be a proper charge against the guardian for such timber so taken and sold or -converted to his own use.

Decree reversed.  