#### STATE OF NORTH CAROLINA on the relation of JOSEPH COTTON and wife v. WILLIAM FENNER, RICHARD H. SMITH and BENJAMIN F. GARY.

In an action against a guardian and the sureties upon his guardian bond, it was in evidence: that the wardr the feme plaintiff, having married, her husband demanded of the guardian a settlement of his account as guardian. Afterwards, in a conversation concerniing the same, the guardian stated to the male plaintiff, that the feme plaintiff, his ward, was largely indebted to him, at the time showing to the male plaintiff the book in which his guardian account was kept, and representing that the account therein was correct. The guardian then proposed to the male plaintiff that if he and his wife, the ward, would give him a receipt in full of all demands against him as guardian, he would give the plaintiffs a receipt for-the alleged balance due. The proposition was accepted and the respective receipts given, the plaintiffs never having examined the account. Subsequently the plaintiffs discovered that the guardian had credited himself in the account with large sums paid in Confederate money, making no deduction on account of the depreciation of the same: *Held,*that the plaintiffs were entitled to- an account.

This was a civil actioN for an account tried before *Henry, J.,*at December (Special) Term, 1874, Halifax Superior Court.

The following are the facts in the case as disclosed by the statement signed by the counsel and sent up as a part of the-record:

*567The defendant, Fenner, was appointed by the late County Court of Halifax county, at the February Term, 1861, the guardian of the *feme*plaintiff, Ann B. and her brother James S. Paul, and executed his bond as such guardian, with the defendants, Smith and Gary, as sureties thereto, payable to the State of North Carolina, in the penal sum of thirty thousand dollars. Immediately thereafter the defendant, Fenner, as guai'dian, entered upon the discharge of his duties, and besides negroes and other property of his wards, he received at different times as the property of *thafeme*plaintiff, sixteen hundred and eighteen dollars and thirty-two cents, which belongs to the capital of the estate of his said ward, as follows:

From the sale of the land belonging to the estate of

O. A. Paul.$ 732 50

From the sale of land belonging to Ann Paul.... 450 50

Of Richard H. Smith, administrator of C. A. Paul, 253 38

Of Richard H. Smith, administrator, &c. 65 87

From sale of boy Fred, sold Nov. 1st, 1863, for

Confederate money, $1,025, scaled,..

Making.$1,618 32

On the 19th day of June, 1867, the plaintiff, Ann B., intermarried with the plaintiff Joseph' Cotton, and arrived at full age on the-day of April, 1869. After the intermarriage of the plaintiffs, the plaintiff Joseph, demanded of the defendant Fenner, a settlement of his accounts as guardian, and the payment to him of such balance as might be due to his said ward. In the latter part of the year 1869, or early in 1870, the plaintiff' Joseph, went to the store of the defendant Fenner, where he met the defendant Smith, and a conversation arose as to the settlement of the guardian account. Smith left, saying that the plaintiff Joseph, and the defendant Fen-ner, could settle without his aid. Fenner then stated that according to his guardian book, in which the guardian account of the *feme*plaintiff' was kept, and which was then written *568out in full, it appeared t'hat his ward was indebted to him, as her guardian, over fifteen hundred dollars, and pioposed to the plaintiff Joseph, that lie, Fenner, would give up the whole of this sum to plaintiffs, and give them a receipt in full therefor, if plaintiffs would give him their receipt in full settlement of his guardian account. At the same time Fenner handed to the plaintiff the book in which he then said his guardian account was stated, and told the plaintiff Joseph, that he could take the book and examine the account with his wife, at their leisure, but that they would find it correct. The said Joseph took the book and held it in his hands a short while when he returned it to the defendant without having examined it at all, and agreed to accept the proposition of the defendant Fenner. Thereupon the receipt was written and signed by the plaintiff Joseph, and was taken home by him for the signature of the *feme*plaintiff. It was signed by her and delivered to the defendant Fenner, about a week afterwards.

There was no order óf any Court of competent jurisdiction obtained by the defendant as guardian of the *feme*plaintiff, allowing him to expend any portion of the principal of her estate, for her support and education.

In the account as contained in the defendant Fenner’s book, the guardian had credited himself with large sums, paid for his ward in Confederate Treasury Notes when they were at a discount from twenty to fifty for one. If these payments had been scaled at their value when they were made, there would have been a balance due his ward.

The defendant Fenner, testified that the sums of money above mentioned as belonging to the estate of his ward were well invested. In addition to said money his wjard owned a considerable number of slaves. During the war and especially the latter years of the war the cost of supporting the expensive negroes was largely in excess of the ward’s income. He made efforts to put them out to the lowest bidder, but that on more than one occasion the sums offered for certain families of said slaves wrere so large that he kept them at home, built houses *569for them and supported them. In order to do so he was compelled to call in and use the principal money of his ward’s estate, having no other source from which to draw the neces-sary funds. That by this means he supported the said families at about one half the price it would have cost if they had been put out to the lowest bidder. That in supporting those families he had expended of his own means the amount of the balance against his ward, and that this balance was in Confederate money.

The plaintiff Joseph, was twenty-two years old at the time of his marriage, and was raised in the immediate neighborhood of the defendants Fenner and Smith, both of whom were old men,.and the latter a mail of great influence in the neighborhood. The plaintiffs never examined tire guardian account and only became aware of the alleged errbrs which were made in the statement thereof, from report of the settlement of the defendant Fenner with his other ward and a report that upon a proper settlement of said accounts, the defendant would be largely indebted to his said ward.

The defendant Fenner, made no return to Court after the year 1862, of his account as guardian of *the feme*plaintiff. It appeared from his guardian book, that on the 1st day of January, 1864, he was indebted to his ward over eleven hundred dollars’, and that on the 1st day of January, 1865, his said ward was indebted to him over fifteen hundred dollars, which was caused by crediting to the guardian large payments in Confederate money, many of which were made when it was at a depreciation of fifty to one. At the tiial the plaintiffs submitted to the jury the following issue, which was accepted by the defendants, to-wit: “ Are the plaintiffs entitled to an account of the guardianship of the defendant Fenner?”

Bis Honor charged the jury that if the plaintiffs desired to avoid the effect of their receipt on the ground of fraud, misrepresentation or mistake, it would be necessary for them to prove the same to the satisfaction of the jury; that as much as the ward did not herself settle with the guardian, but did *570so through her husband, a person of full age, and at least of ordinary intelligence, and this too after the lapse of nearly a year after attaining her majority, the law did not cast a pre-. sumption of fraud or undue influence upon the settlement, and the doctrine of *Lee*v. *Pierce*did not apply, especially if the jury believed that the defendant Fenner, gave to the plaintiff Joseph, reasonable and fair opportunity to examine the accounts and vouchers.

After the argument had closed and the Judge had charged the jury, the plaintiffs asked his Honor to instruct the jury as follows: There being a capital sum of $1,618.32, confessed a payment of any less sum would not discharge the liability : Here then was actually nothing paid, only a release from an imaginary debt which the defendant himself had conjured up.” His Honor declined the instruction.

There was a verdict in favor of the defendant, the jury finding the issue in the negative.

Thereupon the plaintiffs moved for judgment, *non obstante veredicto*against the defendants for $1,618.32, the principal of the wards estate with interest thereon from the time of marriage, which motion was overruled by the Court.

The plaintiffs then moved for a judgment *non obstante vere-dicto*for $1,183.00, the amount of the proceeds of the sale of the land, with interest from the time of the marriage. The motion was overruled by the Court.

The plaintiffs then moved for a new trial on account of error in the charge of his Honor in refusing to charge as requested. The Court overruled the motion and thereupon the plaintiffs appealed.

*Clarke*and Batchelor, for the appellants.

*Moore & Gatling*and *T. N.*Rill, contra.

Settle, J.

There is a voluminous record in this case, which will convince any one who will read it *that*the plaintiffs are entitled to an account from the defendants.

Pee Cueiam.

Judgment accordingly.