he omits to settle his accounts annually, as required by law; and this forfeiture it was formerly not in the power of the court to remit to him (6 Leigh, 274-'5; 1 Grat. 13; 3 Grat. 125; Morris v. Morris, 4 Grat. 345; Ante, p. 452); although at present it is. (V. C. 1873, c. 128, § 9.) And if he improperly convert property into money, he is denied commissions on the proceeds. (2 Wh. & Tud. L. C. (Pt. I) 357; Bank of Virginia v. Craig, 6 Leigh, 437.)

As to the subject-matter on which the percentage of commissions is to be computed, we have seen that it is receipts, and not disbursements; and under the description of receipts, are reckoned bonds which the guardian might rightfully have collected, but did not, and ultimately, with the ward's consent paid over to him in kind as so much money (Ferneyhough v. Dickinson, 2 Rob. 582, 589; Claycomb v. Claycomb, 10 Grat. 592); and so, where the guardian converts bonds or other debts into mortgages (without receiving the money), and delivers the mortgage to the ward (Hipkins v. Bernard, 4 Munf. 92). And of course money of the ward on hand at the commencement of the wardship is to be reckoned amongst the receipts, as are also the proceeds of crops, or indeed of any chattels rightfully sold (Hipkins v. Bernard, 4 Munf. 92.) But strange to say, although commissions are the guardian's compensation for the trouble he has about the whole trust,-in taking care of the ward, in managing his property, in selling it and receiving the price, including the risk of taking counterfeit money which, in general, would be his loss; (Taliaferro v. Minor, 2 Call, 192), and also in paying out money, and accounting, as well as in collecting debts,-yet it is held that the guardian can have no commissions on debts due from himself to the ward, with which he charges himself; as if the mere receipt of the money constituted the whole consideration for the commission, and the custody, disbursement, and accounting were nothing. (Carter's Ex'ors v. Cutting, 5 Munf. 227; Ferneyhough v. Dickinson, 2 Rob. 582. See contra, Cockerell, v. Barber, 2 Russ. (3 Eng. Ch.) 588-'9, & n (b).)

Commissions are not in general to be allowed twice upon the same capital, notwithstanding the investments be changed; but (after being once allowed on the principal), only on the income arising from it. (McCall v. Peachy, 3 Munf. 297; 2 Wh. & Tud. L. C. (Pt. I.), 363, 365–26.)

The rule when the fund comes into the hands of a successor, as to the allowance of a second commission, is not well defined. In New York it is usual not to permit a guardian to resign, except upon his relinquishing any commissions upon the fund transferred to his successor, whence it would seem to follow that, but for such an arrangement, a double commission would be allowed. Sed quære. (2 Wh. & Tud. (Pt. I), 357; Jones' case, 4 Sand. Ch'y, 616.) Commissions are not to be computed upon the value of property belonging to the ward, and finally turned over to him in kind, unless, from being perishable or otherwise, it be such property as the guardian might with propriety have sold or converted into money, as in case of the bonds above mentioned; and if the guardian shall appear to have converted the ward's property into money with a view to commissions, where there was no sufficient reason therefor, commissions will be denied him. (Bank of Virginia v. Craig, 6 Leigh, 437; Ferneyhough v. Dickinson, 2 Rob. 582, 589; Claycomb v. Claycomb, 10 Grat. 592; 2 Wh. & Tud. L. C. (Pt. I), 357.)

Whether a guardian who employs an attorney or agent to collect money shall be allowed a commission thereupon, in addition to the compensation paid the attorney, depends on whether a prudent man would have employed an attorney to collect his own money. If he would, the guardian is to be allowed a commission in addition to that paid the attorney; otherwise not. (Carter's Ex'ors v. Cutting, 5 Munf. 241.)

Where there are several guardians the compensation is to be equally divided amongst them, unless some reason appear to the contrary-e. g., an unequal share of the labor and responsibility. (Claycomb v. Claycomb, 10 Grat. 589.)

In England a guardian, who is an attorney, cannot charge for his own professional services, but is permitted to employ another person, and to pay him for advice and aid. (2 Dan. Chan. Pr. 1432; 2 Wh. & Tud. (Pt. I), 339-240.) In Virginia it is said to be the practice to allow attorneys who are fiduciaries a proper compensation for their professional services in the conduct of the business. (Matt. Guide for Com'rs, 99, 100.)

4. Doctrine touching the Validity of a Guardian's pri

vate settlement with his Ward, and of a conveyance by the Ward to him.

A guardian's private settlement with his ward is always scrutinized with rigor; and a release without a settlement, especially soon after the ward attains his age, however fair it may really be, is so liable to abuse and fraud as to be regarded in equity as constructively fraudulent and voidable at the instance of the ward. And upon like principles, a conveyance from a ward to a guardian, made soon after attaining age, and without a settlement of accounts, is viewed in the same light, as a transaction too likely to be a cloak for fraud to be tolerated, and therefore regarded in equity as constructively fraudulent, and voidable by the heir. So also, for kindred reasons, no fiduciary of any description is permitted to deal for his own benefit with the subject matter of his trust, not only because the parties are not on an equal footing in respect to acquaintance with the subject, but also because to allow the validity of such transactions would tend to corrupt the integrity of persons so situated, by setting their interest in opposition to their duty. For these reasons, the law holds transaotions of that kind to be always voidable by the beneficiary. (Bac. Abr. Guardian (II); 1 Stor. Eq. § 317 & seq., 321 & seq.; 2 Rob. Pr. (1 Ed.) 158-'9; Armistead v. Waller, 2 Leigh, 14; Buckles v. Lafferty's Legatees, 2 Rob. 292, 299, &c.; Segar v. Edwards, 11 Leigh, 213; Bailey v. Robinson, 1 Grat. 4, 9, 10; Howery v. Helins, &c., 20 Grat. 7, &c.; 1 Wh. & Tud. L. C. 126, 134, 140; Fox v. Mackreth, 2 Bro. C. C. 400; S. C. 2 Cox, 320; Killick v. Flexney, 4 Bro. C. C. 161; Hall v. Hollet, 1 Cox, 134; Campbell v. Walker, 5 Ves. 678; S. C. 13 Ves. 601; Whichcote v. Lawrence, 3 Ves. 940; Ex parte Bennett, 10 Ves. 381; Downes v. Glazebrook, 3 Mer. 200; Ante, p. 222-'3.)

5h. Doctrine as to the Guardian's own Examination before the Commissioner.

It is the ordinary practice in equity, in every decree or order of account, to direct that the master commissioner may examine the parties upon interrogatories, in which case their answers are regarded as if made to a bill filed. Hence, so far as the answer is responsive to a question, it is evidence for the respondent; and the answer of one party is not, as a general rule, to be used against another (although a

co-party), but only against the respondent himself. But where of two co-parties one is in default and contempt, omitting to obey the commissioner's summons to appear before him, but, by his answer to the bill, acknowledging indebtedness, and another appears and is examined, stating the particulars of indebtedness, and that the assets to meet it were all turned over to the other party, it was considered admissible, under the peculiar circumstances, to presume against the party in default that he was solely responsible, and it was decreed accordingly. (2 Lom. Ex. 551-2; 2 Rob. Pr. (1st Ed.) 329-30, 404; 2 Smith's Chan'y, Pr. 122; Templeman v. Fauntleroy, 2 Rand. 434, 445.)

It is a general rule, in taking accounts before a commissioner, that a party, in his examination, may charge and discharge himself in the same sentence, but not in different sentences. And so, if by his answer he admits a fact, and insists on a distinct fact by way of avoidance, he must prove the latter by other testimony, whilst the fact admitted is thereby established against him. Thus, if a guardian admits the receipt of money for his ward, but claims to have disbursed it legally, his admission is sufficient evidence of the receipt, but the proper disbursement is to be proved by other satisfactory means. On the other hand, where the guardian states that the ward's father gave him a sum of money in his life time, if advantage is sought to be taken of the statement to prove the receipt of the money, the whole must be taken together, occurring as it does in one sentence; and the guardian can only be charged by disproving his averment as to the gift. (2 Lom. Ex. 550, 552; Beckwith v. Butler, 1 Wash. 224; Payne v. Coles, 1 Munf. 373; Kirkpatrick v. Love, 2 Ambl. 589; Blount v. Barrow, 1 Ves. Jun'r, 547; Ridgway, v. Darwin, 7 Ves. 405; Thompson, v. Lambe, Id. 588; Robinson v. Scotney, 19 Ves. 584.)

6h. Doctrine as to the Production of Books and Vouchers.

One of the usual directions in every decree for an account is that the parties shall produce before the master-commissioner, on oath, all books, papers, and writings in their possession touching the enquiries to be made; and these are in general retained by the master for the benefit of the parties concerned, as long as they are needed. Nor can a guardian excuse himself from producing books, &c., because he has mixed therein other transactions not relating to his

trust. (2 Lom. Ex. 503; Freeman v. Fairlie, 3 Meriv. 43-'4; Salisbury v. Wilkinson, 1 Cox, 278.) 7. Mode of Proceeding by Ward against Guardian, and Limitation thereto.

The ward may proceed by an action at law, on the guardian's official bond, against himself and his sureties; but as, in most cases, the settlement of the guardian's account is necessarily preliminary to any judgment, and, as a court of law has no means of adjusting such an account, it is allowable and usual to sue the guardian and his sureties in equity, which, by means of one of its master-commissioners, is enabled, with facility, to take the needful accounts. Such a suit, whether at law or in equity, may be brought during the ward's non-age, in his name, by his prochein ami, or next friend, or, after he attains his age, by himself alone. (2 Rob. Pr. (1st Ed.) 158.)

But the suit upon the bond, whether at law or in equity, is in Virginia limited by statute (V. C. 1873, c. 146, § 8, 9,) to ten years from the time when the right of action first accrued, which is declared to be from the "time when the ward attains the age of twenty-one years, or from the termination of the guardian's office, whichever shall happen first," saving to infants, married women, and insane persons, the like number of years after the removal of their disabilities, but so as in no case to exceed twenty years from the accrual of the right of action. (V. C. 1873, c. 146, § 9, 18.) Where, however, the proceeding is not on the bond, but against the guardian alone, or his representative, on the ground of the trust arising out of his fiduciary relation, the statute of limitations is not applicable (V. C. 1873, c. 146, § 9), and there is no other bar than that interposed by the discretion of the court in respect to stale and antiquated claims, where the transactions, by the lapse of time, have become obscure; or where, from the loss of vouchers or death of witnesses, injury would be likely to result; or where, from the mutual relations of the parties, a presumption of satisfaction fairly arises. (Bolling v. Bolling, 5 Munf. 334; Coleman v. Lyne's Ex'or, 4 Rand. 454; Burwell's Ex'or v. Anderson, 3 Leigh, 348; Carr v. Chapman, 5 Leigh, 171; Hayes v. Goode, 9 Leigh,-481; Handley v. Snodgrass, Id. 489; Aylett v. King, 11 Leigh, 491; Smith v. Clay, 3 Bro. C. C. 639, note; Lacon v. Briggs, 3 Atk. 105; Pick