in equity, but with this difference, that the previous approval by the court is not required by the statute, as it was at common law, but that it suffices if the court subsequently ratify the expenditure, being satisfied that it was actually made, and was judicious and proper. And accordingly it is declared that when any disbursements exceeding the annual profits are allowed, the court may order the ward's personal property to be sold in order to meet the excess, or may sanction a sale already made by the guardian. But, as we have seen, neither the ward personally nor his real property is liable for such disbursements. (V. C. 1873, c. 123, § 9.)

On the other hand, as we have seen, no personal responsibility attaches by law to the guardian for the expense of educating and supporting the ward. If he is liable at all, it is in consequence of his own promise, which, like other promises, may be either express or implied. But his personal liability on such promise is not obviated by his styling himself guardian; nor does his personal responsibility do away with the creditor's right to charge the ward's estate in his hands, unless his personal promise was taken avowedly in satisfaction of the demand. (Hamlin v. Anderson, 6 Rand. 579; Barnum v. Frost, 17 Grat. 398.)

6'. Guardian's Accounts and Allowances.

In discussing the doctrines applicable to the settlement of the accounts of a guardianship we are to have regard to, (1), The general doctrine of the accountability of guardians; (2), The particulars for which a guardian is accountable; (3), The means provided in Virginia to compel the prompt and accurate settlement of guardian's accounts; and (4), The mode of stating guardian's accounts;

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18. General Doctrine of Accountability of Guardians.

Guardians who have charge of infants' estates (namely, with us, guardians by election, by appointment of the chancery court, and by the father's will). are accountable for all profits which are or ought to have been received, and for all losses incurred through the guardian's default.

Before the infant ward attains his age this accountability may be enforced by a suit by the infant, under the protection of his prochein ami, or next friend (but still in the name of the infant); and after he attains his age, by a suit in his own name alone. (Lemon v. Harnsbarger, 6 Grat. 305; Villa Real v. Mellish, 2 Swanst. 537; Bac. Abr. Infancy (K).)

The infant, indeed, when he has no regularly appointed guardian, has the extraordinary privilege of being allowed to elect whether to regard a stranger who enters upon his lands, either as a wrong-doer and disseisor, or as a guardian, and as such to constrain him to account for the profits. So, also, where executors or trustees have charge of an infant's estate during minority, whether irregularly and improperly, or in pursuance of the will or deed of one who had power to confer the authority, they are to be regarded as quasi guardians, and must account accordingly. (Garrett v. Carr & ux, I Rob. 196.)

This responsibility of guardian to ward cannot, at common law, be exacted from the personal representative of a guardian, nor by the personal representative of a ward, because that matters of account lie so much in privity between the parties that strangers cannot well adjust them. But by statute, with us (V. C. 1873, c. 142, § 14), taken from 4 & 5 Anne, c. 16, "an action of account (and therefore a bill in equity) may be maintained against the personal representative of any guardian.” And in England several statutes have been passed to remove the disability of the personal representative of the ward to sue the guardian for an account (namely, the Stat. 13 Edw. I, c. 23, applicable to executors, and 31 Edw. III, c. 11, applicable to administrators); but by a singular oversight these provisions have not been adopted in Virginia, unless they are to be considered as embraced in V. C. 1873, c. 126, § 19, 20, allowing actions on contract, and actions for torts to property to be maintained by or against personal representatives, or as within the saving (V. C. 1873, c. 15, § 2), of all writs, remedial and judicial, given by any act of Parliament not local to England, prior to 4 Jac. I. (Bac. Abr. Guardian (I); Garrett v. Carr, &c., 1 Rob. 196; Lemon v. Harnsbarger, 6 Grat. 302; 1 Th. Co. Lit. 339-40, & n (11), (12); 2 Lom. Ex. 588-'9; Cary v. Bertie, 2 Vern. 342; Newburgh v. Bickerstaffe, 1 do. 295; Pomfret v. Windsor, 2 Ves. Sen'r, 484.)

28. The Particulars for which a Guardian is Accountable.

These particulars comprise, (1), The ward's estate which did or might have come to the guardian's hands; (2), The losses arising from the guardian's neglect; and (3), The losses arising from the misconduct of a coguardian;

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1. The Ward's Estate which did or might have come to the Guardian's hands.

The fundamental principle of a guardian's accountability is that he is liable "at the expiration of his trust, to deliver and pay all the estate or money in his hands, or with which he is chargeable, to those entitled thereto." (V. C. 1873, c. 123, § 7.) He must therefore account for all of the ward's estate that did come, or, with due diligence, might have come into his possession. (Burnley v. Duke, 1 Rand. 113.) And in rendering that account, if the guardian was also executor or administrator of the decedent from whom the ward derived the estate, it must be observed, that as he received the property in the latter capacity, he must be presumed to retain it in the same character, until he shall indicate by act or declaration that his intention is to hold it as guardian; and it is only then that the responsibility is shifted from the sureties in, the administration to the sureties in the guardian's bond. (Myers v. Wade, 6 Rand. 444; Broaddus v. Rosson, 3 Leigh, 12; Morrow v. Paxton; 8 Leigh, 75-'6; Hannah's Adm'r v. Boyd & ux & als, 25 Grat. 692.) 2h. Losses arising from Guardian's Neglect, &c.

For property or debts lost by the guardian's neglect he is liable, and in the case of debts he is, by statute, liable for interest as well as principal. (V. C. 1873, c. 128, § 7.) But when the collection is actually made, he ought to be charged with interest from the time the money was received (of which his own oath is prima facie evidence), and not from the time it was payable. (Dilliard v. Tomlinson, 1 Munf. 183; Cavendish v. Fleming, 3 Munf. 201.)

He is also liable for payments which he knows he might by law successfully resist, it being expressly provided (V. C. 1873, c. 128, § 7), that no credit shall be allowed therefor; a doctrine which is universally admitted at common law, when the illegality appears on the face of the security, and although controverted, is sustained, independently of the statute, by the great weight of authority, even when the illegality, though known to the guardian, is not apparent on the instrument, but has to be proved extrinsically. (2 Lom. Ex. 488-'9; Carter's Ex'ors v. Cutting, 5 Munf. 239; Tunstall v. Pollard, 11 Leigh, 38-'9; Kee v. Kee, 2 Grat. 116, 128; McCulloch v. Dawes, 9 Dowl. & Ry. (22 E. C. L.) 40; Rogers v. Rogers, 3 Wend. (N. Y.) 503.)

A guardian may also become liable by improperly compromising or releasing a demand due his ward, or by cancelling a security therefor. And if he takes

an obligation in his own name for a simple contract debt due his ward, he is, at law, as much chargeable as if he had received the money. It is a quasi payment, the new security under seal extinguishing the old debt. But whilst this is the general rule, which it is commonly safer to observe, yet compromises of doubtful claims, the payment of debts perhaps illegal and unrecoverable-in short, any such course of management of the ward's estate, as a judicious man in the conduct of his own affairs, having respect solely to the probabilities of profit or loss to result there from, would have adopted under the circumstances, will be regarded by a court of equity as justifiable. (2 Lom. Ex'ors, 485 & seq.; Clay v. Williams, 2 Munf. 125; McCall v. Peachy's Adm'r, 3 Munf. 288; Bowden v. Taggart, 3 Munf. 513; Pulliam v. Johnson, 4 Munf. 71; Kee v. Kee, 2 Grat. 131; Whentley v. Martin, 6 Leigh, 71; Braxton v. Harrison, 11 Grat. 54; Boyd's Sureties v. Oglesby, 23 Grat. 683-'4.) And this power of compromise and adjustment, on the part of not guardians only, but of any fiduciary, is, in Virginia, confirmed by statute, where it is ratified and approved by a court of equity. (V. C. 1873, c. 128, § 39.)

A guardian is liable for any act of negligence which injures the ward's estate,-as delaying without cause the payment of a debt carrying interest, suffering a suit to be brought and costs incurred when he has means to pay the demand, and has no reasonable ground for contesting it, delaying to sue until the ward's claim is barred by the statute of limitation or lost by the debtor's insolvency. But, on the other hand, a guardian is not bound to sue when suit would plainly be vain; nor, it seems, is he bound to appeal from the decree of a court of competent jurisdiction, in any case, however seemingly erroneous it may be, and although advised by counsel so to do. (2 Lom. Ex. 477; Liddesdale v. Robinson, 2 Brock. 160; Green v. Hanbury, Id. 404; Davis v. Newman, 2 Rob. 678; Miller v. Holcomb's Ex'or, 9 Grat. 665; Nelson v. Page, 7 Grat. 166; Mitchell v. Trotter, 7 Grat. 136; Bowers v. Glendening, 4 Munf. 219.)

The guardian is not liable, at least in equity, for the goods of the ward which are stolen or destroyed without his default-that is, notwithstanding the employment on his part of such care as a man of ordinary prudence takes of his own goods. So no liability arises when the loss accrues by the failure of a

security in which common usage and belief warrant confidence. It is indiscreet, however, to select investments depending on mere personal security. They should be either protected by a lien on lands, or should consist of such stocks and public bonds as the courts of chancery are accustomed to direct investments to be made in. But the safer way is to apply for and adopt the advice of the court under whose direction the guardian's account is settled, which is expressly empowered by statute (V. C. 1873, c. 128, §30) to order the fund in hand "to be invested or loaned out, or to make such other order respecting the same as may seem to it proper." But such order

can be legally made only after notice to the parties concerned, either given specially, or by the general notice, which the commissioner is required to post at the courthouse door. (Whitehead v. Whitehead, 23 Grat. 379.) During the late war the Richmond Legislature, which wielded de facto the government in Virginia, by statute (Acts 1862-'3, p. 81, c. 46, § 1), authorized a circuit judge in term, or in vacation, to direct fiduciaries (including guardians) to invest in the bonds and certificates of debt of the Confederate States, or of Virginia, or any other sufficient bonds or securities of or within the State; and such investments, therefore, being made according to the law of the de facto government, would, it seems, exonerate the guardian (See 1 Lom. Ex. 480, 483, &c., 1 Stor. Eq. 89, 90; Clough v. Bond, 3 My. & Cr. (14 Eng. Ch.) 496); that is, supposing the transaction to be fair, and that the three circumstances contemplated by the statute concur, namely: (1), That the money is in his hands; (2), That it was received in the due execution of his trust; (3), That for some cause he is unable to pay it over to the parties entitled. (Campbell v. Campbell, 22 Grat. 649; Berry v. Irick, Id. 614.) It is a general principle applicable to fiduciaries of all kinds, and, amongst others, to guardians, that no more should be required of them than that they act in good faith, and with the same prudence and discretion that a prudent man is accustomed to exercise in the management of his own affairs. (Knight v. Ld. Plymouth, 3 Atk. 480; Thompson v. Brown, 4 Johns. C. R. 619, 628; Hart v. Ten Eyck, 2 do. 62; Taylor v. Benham, 5 How. 233; Elliott v. Carter, 9 Grat. 541, 559-60; Davis v. Harman, 21 Grat. 200; Myers v. Zetelle, Id. 758 to 760.)

In general a guardian is liable for the acts and de