#### Susan A. McCullen *et al. v.*Brittain Hood.

A receipt, acknowleging' the payment of a particular sum, without stating it to be in full, is not in itself sufficient evidence to support the plea of accord and satisfaction.

Trespass qtjare ceausum eregit, tried on the last circuit, at Wayne, before his Honor Judge DowNEEE.

*Plea*— accord and *satisfaction,*upon which the case was, that the plaintiffs were the heirs,, and the defendant the administrator of *Asher McCullen;*that the defendant entered upon the lands which descended to the plaintiffs, and rented them out for two years *;*that afterwards the defendant handed to the guardian of the plaintiffs several • notes, and tookfrom him the following acknowledgement;

*220“Received of *Brittain Hood,*as next friend to the heirs *“*of *Jlsher McGullen,*deceased, the. following notes of *“*hand, for rent of lands, &c. viz: &c.” No other evidence was offered.

It was contended for the plaintiffs, that a guardian could not make an accord and receive satisfaction for a claim of his ward ; and if lie could, that the receipt was not evidence of an accord and satisfaction of the whole <- demand, so as to defeat the action, if in truth they were entitled to a greater amount of damages than that stated in the receipt.

His Honor instructed the jury, that a guardian might, acting *Iona fide,*make an accord and receive satisfaction for an injury to the estate of his ward, so as to defeat his action ; and left it with the jury to determine, whether the notes were received as an accord and satisfaction, or as a discharge *pro tanto*of the damages.

The jury returned a verdict for the plaintiff, allowing the amount of the notes as a part satisfaction, and assessed damages for the residue, and the defendant appealed.

*W. C. Stanly,*for the defendant.

*Gaston, J. H. Bryan*and *Mordecai, contra.*

Henderson, Chief-Justice.

The plaintiff does not, and the defendant *cannot*bring into review the law, as laid dowm by the presiding judge, as to the power of the guardian to make an accord, and receive satisfaction for the entry, and occupation by renting out the lands of his wards. Nor docs the case require, that we should examine the question. For we are of opinion, that the evidence offered by the defendant is not even *prima facie*evidence of that fact. The only evidence offered in support of that plea was the receipt. And that shows only, that certain bonds were received, by the guardian, of the defendant as next friend to the infants for rent, if it had been expressed in full of the rents received by him, or that they wore all the bonds received by him for rent, or all that he had rented the lands for, an inference might be drawn, that the guardian received them in *full satisfaction.*But no such expression is found in the receipt. *221Nor was any evidence offered of all or any of these facts. There might be more bonds or money, and yet the receipt speak the truth. Wo therefore think, the defendant has no reason to complain of the charge of the judge. He neither showed, that they were all the bonds lie received, or that they were for the full value, on which to found a presumption, that the guardian received them in full satisfaction. Nor docs the guardian say so in the receipt.

Per Curiam. — Judgment reversed.