State Ex Rel . Cummings v. . Mebane , 63 N.C. 315 ( 1869 )

Settle, J.

(After stating the case as above.) This case -comes before us by appeal from the decision of his Honor helow, sustaining the exception of the defendant’s counsel to the report of the commissioner, appointed to take and state an ^account of the guardianship of the defendant Mebane.

The report of the commissioner charges the guardian with the full amount, and the decision oí his Honor discharges him -of all liability.

Several cases have been before this Court, touching the liability of those who have received Confederate currency in a ■fiduciary capacity. And while they establish no general rule, hut seem to leave every case to stand upon its own merits, still tbey afford as much assistance in dealing with this embarrassing question.

We cannot close our eyes upon the past, and forget that thousands of our most prudent citizens hare become bankrupt by investments, which appeared to be the very best that could be made at the time.

It is one thing to sit in judgment upon the past, and quite another to foresee consequences. It will not do to look back now, and see how estates might have been better managed, and exact of those who had them in charge, that degree of diligence, which would have proved most beneficial in each particular case.

The degree of diligence to which we think they should be held liable, is that which a prudent man, at that time, would have exercised in the management of his own affairs. And this, we understand, to be the principle upon which all of these cases have turned. Of course, a party who has been guilty of negligence or fraud, should be held to the strictest accountability. But in the absence of any such suggestion, where a party acting in good faith, received Confederate currency, and afterwards lost, not only trust funds, but his own also, he is to be regarded with all the favor that is consistent with the policy of the law, in regard to those who undertake to discharge a trust. In the case before us there is no suggestion of fraud.

Was there such negligence as ought to subject the defendant to the payment of the full amount, received by him, for the relator in December 1862 ?

We think not.

When we remember that the principal in the bond, was. “ about to leave the State,” in the midst of a war, we can very well imagine that the defendant would be, not only willing, but, anxious to collect his debt in a currency, with which he was able to pay off two of his wards in February 1863.

The fact that he did pay them off, with this very money, two months after it came into his hands, shows that it was passing currently, and that no question was raised at that day, either as to his good faith, or diligence. But it is said, he should have loaned it out. He states, that he could not lend it. Had .he done so, it is more than probable, that it would have proved worse for the relator; for he “mixed it with his own, and used it promiscuously,” thereby rendering himself liable for its value in December 1862, the time at which he received it.

There was error, in relieving the defendant from all responsibility; and the report of the commissioner should be reformed in the manner indicated by this opinion. This will be certified, &c.

Per Curiam. Ordered accordingly.