tiff Nancy, and also to try whether an exhibit in these
words, "Received August 2d, 177, of William Farris 158
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." (Signed) "W. Gathright,
jun. for Anne Gathright,” was undersigned by the said W.
G., jun. with his proper hand; and also to try whether the
said W. G., jun. was empowered by the said A. G. to receive
money due to her ward; on which trial those facts were
both found in the affirmative; which record is in part re-
cited, and is referred to in the complainants' bill, in this
suit, as then remaining in the same Court of Chancery. But
that record was not made a part of the record in this suit,
when sent up from the Court of Chancery, neither doth it
appear that it was read in evidence there at the hearing.
Mr. Wickham, however, contended, upon the authority of
Alexander v. Morris, (3 Call, 104.) that, this being an ap-
peal granted from an interlocutory decree, this Court would
allow that record to be read; more especially as, being a re-
cord of the same Court, it was probable the Chancellor
had inspected it previous to pronouncing his decree.
I have very great doubts of the propriety of such a prac-
tice, as it may be productive of great inconvenience and
injury to suitors in general. For can it be thought reason-
able, that a party, by referring in a general way to a suit
between other persons, although in the same Court, should
put his adversary to the trouble and expense of hunting
for, and taking copies from the papers in a suit, or perhaps
a dozen suits, determined twenty or fifty years ago, and,
after all, perhaps not meeting with the papers referred to,
when the party making the reference might have produced
an authentic copy, and annexed it to his bill or answer,
without further expense than paying for a copy of so much
as he himself might deem material to his own cause. Or,
suppose a person (against whom a decree may have been
pronounced in any of the other Chancery District Courts)

But

APRIL,

1810.

Hooper

V.

Royster.

APRIL, 1810.

Hooper

to apply to a gentleman of that bar for his advice whether to appeal from a decree or not. He produces the record certified by the clerk, and the counsel, upon examining Royster. it, discovers manifest error, and advises an appeal. If, upon an exhibit which shall afterwards be brought up by certiorari, as in this case, the Court shall affirm the decree, (although such exhibit was probably never produced in the Court below,) the defendant will be liable to pay damages at the rate of ten per cent. per ann. which he would never have incurred if the exhibit had been made a part of the record originally. I therefore think the practice too dangerous to be countenanced by this Court: more especially as, in the present case, the defendants have not admitted the payment, but called for proof to be made of it.

But, if it were admitted that this record might be read here for the purpose of shewing that the administrator is no longer liable to the plaintiff Nancy, and therefore a competent witness to prove the payment of her distributive part of her father's estate to her guardian, still I am of opinion it ought not to be admitted for any other purpose. Now the amount of the money paid to William Gathright, jun. as the agent of Anne his mother, nowhere appears but in that record. This Court certainly will not admit it for that purpose; for Anne Gathright, not being a party in that suit, had no opportunity to cross examine the witness; and, if we look into that record, he contradicts his own evidence in this cause; for there the money appears to have been paid to the son, who gave a receipt for it, and here the witness says that he took a receipt from (not that he paid the money to) the mother.

Again, if we are to inspect that record, it affords a presumption, at least, that the money was paid to the guardian during the period when paper money was the only circulating medium in this country; if so, it ought to be scaled according to the value, as established by the act of Assembly, within a reasonable time after the time of the payment

I also think the defendants are entitled to a reasonable allowance for board, as well as clothing and schooling, notwithstanding the generous intention of the guardian not to charge any. For the plaintiffs coming to ask for equity, ought to do it. Loose declarations are not to be attended

to.

APRIL, 1810.

Hooper

V.

Royster.

But, whether this be correct or not, she certainly has not waived her claim for moneys paid and advanced for clothes, schooling, and other necessary expenses, (board excepted,) an account of which ought to be taken, and all just and reasonable disbursements allowed out of the profits of the ward's estate, if sufficient for that purpose; but, if those profits, during that period of the ward's infancy when she was too young to be bound out as an apprentice, shall prove insufficient to compensate the guardian for such just, reasonable, or necessary disbursements, the balance ought to be made good out of the principal of her estate. But for advancements subsequent to that period, no allowance beyond the profits of the ward's estate ought to be made, unless it shall appear, that, from extraordinary circumstances, such disbursements were unavoidable without culpable neglect on the part of the guardian: in which case the same ought to be allowed out of the principal of the ward's estate, (if the profits thereof shall be found insufficient,) with interest on the same from the end of each year. And that, for any balance which may be found due to the ward at the period when she ceased to reside with her guardian, interest at the rate of five per cent. per annum ought to be allowed to the ward. And, in settling and adjusting the accounts, all payments and receipts of money, between the first day of January, 1777, and the first day of January, 1782, are to be considered as made in paper money, unless the contrary be proved; and the account stated in paper to the time of the last payment; and the balance either way reduced by the scale of that month, and carried to the account of subsequent specie articles if any there be.(a) Upon the whole, I am of opinion that, upon the record v. Minor, 2

(a) Taliaferro

Call, 196.

APRIL, 1810.

Hooper

V.

Royster.

now before us, there is neither evidence of the amount of any payment, nor of the time of any payment, nor even of the certainty of any payment made by W. Farris the administrator to A. Gathright the guardian; that the decree be therefore reversed, and the cause sent back to be proceeded in, in such manner as upon further evidence, if offered to the Court, may be consonant to equity.

Judge ROANE observed that the decree of the Court, about to be read, contained his sentiments, and he did not wish to add any thing to it.

Judge FLEMING. The difference in the opinions of the Judges being on two points only, I shall be short in my remarks, and confine them to these two points. 1. With respect to the sufficiency of the evidence to prove the receipt of the 158. 15s. 10 3-4d. by Anne Gathright, guardian of the appellee, Nancy Royster, as in the proceedings mentioned. It appears to me that the record in the suit between Farris and Farris, in which the present appellees and another were plaintiffs, to call Wm. Farris, administrator of Sherwood Farris, deceased, to render an account of his administration of that estate, and in which the said administrator had a credit for the said 158l. 15s. 10 3-4d., having been particularly referred to in the bill, and by the answer admitted to be truly stated therein, I have no doubt but that record was proper evidence in this cause. I am also of opinion, that Wm. Farris was a competent witness to prove the payment of the said 158 15s. 10 3-4d. to Wm. Gathright, as agent of Anne Gathright, guardian of the appellee, Anne Royster: he, being exonerated from any liability for the same, by the decree in the suit of Farris v. Farris, was a disinterested witness, and no exception was taken to his deposition.

2. With respect to the board of the appellee, Anne Røyster, during her residence with her grandmother and guardian Anne Gathright, the latter was repeatedly heard to de

APRIL,

1810.

Hooper

V.

Royster.

clare she did not intend to charge her ward with board. And our act of assembly concerning guardians and orphans,(a) declares that where the profits of an orphan's estate are not sufficient for his or her maintenance, such orphan, if a boy, shall be bound out until the age of 21 years, (a) Code, 173. and if a girl, to the age of 18 years. I am therefore of opinion, that the charge for board, beyond the profits of her estate, ought not to be allowed.

The following was entered as the decree of the Court,

"A majority of the Court is of opinion that there is no error in so much of the decree rendered in this cause as exempts the appellee Nancy Royster, from the charge for board, during the time of her residence in the family of Anne Gathright, deceased, her guardian and grandmother, in the proceedings mentioned, and provides for the ascertainment of the time when such residence ceased; nor in so much thereof as disallows to the appellees interest upon the money claimed by the bill, during the time of such residence; nor in so much thereof as decrees to the said appellees the sum of 158. 15s. 10 3-4d., with interest thereupon, at the rate of five per centum per annum, to be computed from the time when such residence ceased; (subject, nevertheless, to any deduction which may result from the effect of the principles and provisions declared by this decree;) the receipt of the said money not having been denied by the answer, and being established by the testimony.

"The Court is also of opinion, that there is no error in so much of the said decree as provides for the ascertainment of the several and respective proportions of the estate of the said Anne Gathright, deceased, with the relative values of each, which came to the hands of the respective intestates of the appellants, chargeable with payment of the debt aforesaid, in order to a just and ratable contribution

*Note. See also, ibid. p. 322. s. 1.2!

Rev.