APRIL, 1810.

Hooper

V.

Royster.

that he always understood that William Gathright transacted the chief of his mother's business in the time of her being guardian for her granddaughter Nancy Farris; that he ve rily believed that Anne Gathright was herself incapable of "transacting the duty" which her guardianship required; and that he always understood that she was guardian to Nancy Farris, in the year 1777. It was also proved by the deposition of William Farris, (the administrator of Sherwood Farris.) that he took a receipt (without saying for what sum) of Anne Gathright, as guardian of Nancy Farris, for her proportional part of the money due her as orphan of the said Sherwood Farris; and that William Gathright did the business for Anne Gathright, as guardian of Nancy Farris, with the said deponent.

A transcript of the record in the suit referred to in the bill, was not inserted in the record sent to the Court of Appeals, but was afterwards brought up by certiorari; from which it appeared that a verdict had been found, (on an issue directed in that suit,) setting forth, "that the receipt in the following words, Received August 2d, 177—, of William Farris, 158l. 15s. 10 3-4d. for Anne Farris, orphan of Sherwood Farris, deceased, to remain without interest till January next, as the interest is settled till then.

William Gathright, jun. for Anne Gathright. "John Warriner, jun.'

was the proper hand-writing of the said William Gathright, jun.; and that he was empowered by Anne Gathright to receive money for her ward Nancy Farris, orphan of Sherwood Farris, deceased;" and a decree had been thereupon pronounced, allowing William Farris credit for the said sum of 158/. 15s. 10 3-4d. in the settlement of his account as administrator of the said Sherwood Farris.

The late Chancellor (on the 29th of September, 1803) "being of opinion that the plaintiff Nancy was not chargeable with board, nor entitled to interest for the use of the money claimed by the bill during such time as she abode in her grandmother Anne Gathright's family, adjudged and

decreed that the defendants, out of the goods and credits. of their intestates respectively, pay to the plaintiffs 158. 15s. 10 3-4d., with interest thereon, at the rate of five per cent. per ann. to be computed from the time when she ceased to be longer a member of that family: but, forasmuch as data for exactly measuring that period are not supplied, and the defendants are understood not to have admitted the things bequeathed to their intestates by the said Anne Gathright to have been her property, the Court directed one of the Commissioners to inquire into these matters, and report them, as they shall appear to him, to the Court, with the value of that property;" from which decree the defendants William Savage and Hooper and wife prayed an appeal, which was allowed them.

Nicholas and Randolph, for the appellants.

Wickham, for the appellee.

On behalf of the appellants four points were made; 1. That Anne Gathright was never chargeable with the money decreed; in support of which it was observed that the present defendants not having been parties to the suit against William Farris, the record in that suit was not admissible evidence in this; independently of which record, there was nothing to prove the payment of the money but the deposition of William Farris, who was clearly an interested wit

ness;

2. That, if she was ever chargeable, the credit claimed for board ought to be allowed; her declarations that she did not intend to charge it, not being sufficient to bar her right;

3. That if the receipt were allowed, its true date was probably in the paper money times, and therefore the scale of depreciation ought to be applied, according to the ca

APRIL,

1810.

Hooper

V.

Royster.

APRIL, 1810.

Hooper

V.

Royster.

(a) 1 Wush.

246.

ses of Granberry v. Granberry,(a) and Call v. Ruffin;(b) and,

4.That all the proper parties were not before the Court; as was evident from Anne Gathright's will.

In answer to the first point, it was said that the record in (b) 1 Call,333. the first suit was not introduced as absolute or conclusive

testimony, but merely as introductory to, and explanatory of, the deposition of William Farris; that a copy of that record would have been no evidence before the Chancellor, since the papers being in his own Court, he should (c) 2 Wash. have looked into the originals. In the case of Burk's

$15.

Ex'r v. Tregg's Ex'r,(c) such was the principle established on the plea of nul tiel record: and it would have been the same, if the copy in question had been incidentally produced as evidence to the Jury. In this cause, the bill referred to the papers in the other suit, as now remaining of record in the Court. This made them part of the bill, and authorized the giving them in evidence, so far as by the rules of law they were evidence; viz. to shew that such a suit had been brought, and such a decree existed; whereby it appeared that William Farris was disinterested; the decree in his favour having settled the matter as to him.

Even if the record was not read in the Court below, (as it should have been,) the Court here ought to inspect and receive it as evidence; this being an interlocutory decree, and

(4) 3 Call, 89. this Court having obtained possession of the transcript by writ of certiorari; as, in Alexander v. Morris, (a) where the decree was interlocutory, depositions, taken after the allowance of appeal, were, nevertheless, admitted to be read in the Court of Appeals.

2. As to the board, the Chancellor has been liberal enough. Since it was evident that Mrs. Gathright never intended to charge the plaintiff Nancy with board, and held a considerable sum of money belonging to her, for many years; he, very properly, refused to make the one party liable for board, and the other for interest. Besides, if the profits of the orphan's estate were not sufficient for her maintenance, her

guardian had no right to consume the principal in expenses, but should have had her bound out according to law.(a).

APRIL, 1810.

Hooper

V.

Royster.

3. Whether the scale of depreciation ought to be applied, or not, does not appear. But, admitting that paper money was paid, the decree not being final, it will not be too late (a) 1 Rev. for the Chancellor to apply the scale hereafter. So also, Code, p. 173. s. 11.

4. Proper parties may be introduced at any time before the final decree.

In reply, it was urged that a mere reference to another suit does not make it part of the bill, unless the record be filed, or made an exhibit; that the evidence necessary on the plea of nul tiel record is very different from that required in Chancery suits; that copies there are always received, and, indeed, are most proper, because the papers, and those only, which were before the Court below, ought to be inserted in the record to be sent to the Court above.

William Farris was not a competent witness; for, notwithstanding the decree was in his favour, he was not altogether discharged, since a bill of review might be obtained, and, therefore, he might, eventually, be interested.

As to the question of depreciation, the Chancellor will never allow for it, if this decree be affirmed; for he could not have got to the sum of 158l. 15s. 10 3-4d. without disallowing the depreciation.

Mr. Wickam's suggestion, that proper parties may be made hereafter, ought not to prevent this Court from now directing them. Is a man to be condemned unheard, because he may be heard hereafter? Principles are now to be settled. If this Court affirm the decree, its decision will be understood as declaring that all the proper parties are already

made.

Friday, May 18. The Judges delivered their opinions.

Judge TUCKER. The first question in this cause respects the proof of the payment of the sum of 158/. 15s.

APRIL, 1810.

Hooper

V.

Royster.

10d. by William Farris, administrator of Sherwood Farris, deceased, to Anne Gathright, as guardian of the complainant, Nancy Royster, who was a daughter of the said Sherwood Farris. And the proof rests entirely upon the deposition of William Farris the administrator, by whom the payment is alleged to have been made. As it is short, I shall transcribe the whole as it appears in the record.

"Question by the plaintiff. Did you, or did you not, take a receipt of Anne Gathright, as guardian of Nancy Farris, for her proportional part of the money due her as orphan of Sherwood Farris, deceased, you being administrator of the said Sherwood Farris, deceased?"

"Answer. I did take a receipt, and I was the administrator."

"Question by the plaintiff. Did William Gathright do the business for Anne Gathright, as guardian of Nancy Farris, with you?"

"Answer. He did. And further he saith not."

Were there no objection to the competency of the deponent as a witness, I am clearly of opinion that this deposition, standing alone and unsupported by the receipt which he says he took for the money, (the amount of which is not mentioned, nor even hinted at,) ought to be wholly rejected as proof of such payment to the guardian.

But the objection to his competency appears evident upon the face of the deposition; for, as administrator of the father of Nancy Farris, he was chargeable to her for any legacy or distributable portion of her father's estate in his hands, and, consequently, could not be permitted to discharge himself by his own oath, only, that he had paid it over to her guardian.

But to remove that objection, the plaintiffs resort to a record in a suit between themselves and this witness, as administrator of S. F. in which the Chancellor directed an issue to be made up between the parties, to try whether Anne Gathright, (who was not a party in that suit,) on the second day of August, 1777, was the guardian of the plain