Brand v. Abbott, 42 Ala. 499

Brand v. Abbott

42 Ala. 499 | Ala. | 1868

Lead Opinion

A. J. WALKER, C. J.

The guardian was a competent witness to testify for himself. — Revised Code, 2704 (2302a); Padgett v. Padgett, at June term, 1867. The court erred in the exclusion of him as a witness. We must reverse for this error, for the rule is, that injury is presumed from error, unless the contrary is plainly shown by the record. — Abrams v. Nunn, January term, 1868 ; Ala. & Fla. R. R. v. Watson, January term, 1868.

2. The court erred in charging the guardian with compound interest on the money in hand. The guardian was not guilty of such misconduct as renders him liable. for compound interest. — Calhoun v. Calhoun, Judge, J., June term, 1867; Bryant v. Craig, 12 Ala. 354. It is the duty of a guardian to charge compound interest upon debts after maturity, and for any compound interest received by him he is chargeable. — Revised Code, 2427 (2024a). But *501this law does not relate to the interest chargeable against the guardian on funds in hand.

3. The guardian, upon a future trial, should not be charged even with simple interest on the money in hand, if it should be proved by him to the court that he could not, by the exercise of reasonable diligence, make such an investment as is authorized by the Code, unless there was a conversion by him of the money. — Revised Code, 2426, (2024); Owens v. Peebles, mss., A. J. Walker, C. J.; Bryant v. Craig, 12 Ala. 354.

As the evidence upon the question of the practicability of loaning out the money may not be the same on another trial, it would be useless for us to pass upon the evidence affecting it, set out in the present transcript.

4. The declarations made by the guardian at the time of receiving money were not in any way explanatory of the payment or reception of the money. They were not, therefore, a part of the res gestae, and were properly excluded.— Gordan v. Clapp, 38 Ala. 357.

5. Under the evidence before us, the guardian converted the “ old issue ” Confederate money to his own use, appropriating the same to the payment of his own debts. He was, with such evidence before the court, chargeable with the value of the money so converted, not with its nominal amount.— Glenn v. Waller, mss., January term, 1868.

If, on another trial, it should appear that the guardian merely substituted a better kind of Confederate money instead of the “ old issue,” and using the inferior funds of the ward as a favor to the latter, and if no injury resulted, a new question will arise, not now presented, and therefore not decided.

Concurrence Opinion

BYRD, J.

I concur in the first, third and fourth points decided by the court, and dissent from the second and fifth. If a guardian uses the money of his ward, when he could loan it out as required by law, I hold that he is responsible for compound interest. Such I conceive to be the result of the act of 24th February, 1860, p. 51.

Reversed and remanded.