#### Thomas Clancy, *Chairman,*&c. *upon the relation of*James Carrington *v.*Nathaniel Carrington.

Where an administrator procures himself to be appointed guardian of the next of ldn to 1ns intestate, but does not return an account as guardian— or in any way designate the property of his ward, so that it can be identified, the sureties to the administration bond are not discharged.

The case of *Harrison*v. *Ward, (ante p.*417,) approved.

Debt upon a bond, executed by the defendant, as surety of *John J. Carrington,*on his taking out letters of administration upon the estate of *John Carrington.*The bond was in the common form of administration bonds, *530am] the breach assigned, was the non-payment by the administrator, of the relator’s share of the residue of the intestate’s assets.

After *oyer,*the defendant pleaded *performance*of the condition by the administrator.

Upon the trial, before Martin, Judge, at Orange, on the last circuit, the facts were, that the bond was executed in consequence of *John J. Carrington’s*appointment as administrator at November sessions, 1817, of Orange County Court; that at the ensuing August sessions, he was appointed guardian of the relator, and gave the usual bond with other sureties ; but he had never returned his account as guardian to the office of the County Court.

' His Honor ruled, that *John J. Carrington*was, upon these facts, both administrator and guardian, and the assets being uniformly in his possession, that possession should be taken as being in the character in which it was rightful, which his Honor held to be that of guardian. In submission to this opinion, the plaintiff was nonsuited and appealed.

*W. Jl.*Graham, for the plaintiff,

distinguished this case from that of *Clancy*v. Dickey, (2 *Hawks*497.)

*Badger,*for the defendant.

Henderson, Chief-Justice.

The principle of the case of *Harrison*v. Ward, decided at this term, *(ante p.*417) governs this ; indeed it goes farther, for in that case, there was a return as administrator, here there was none as guardian. There is not the least proof here, that the money due to the. relator, was at any time at, or after J. J, *Carrington’s*appointment as guardian, in his hands. There is no return even acknowledging it as a debt, nothing but a bare presumption, that he then had it, because it was his duty to have had it, and this presumption, if it arises, is in a great measure repelled by his not producing it when afterwards called on. The evidence offered by the defendant, or rather relied on by him, for it is the relator’s evidence, only proves that he ought to have, not that he actually had *531it. This would be presuming too much in order to apply the judge’s maxim, for had the defendant actually shown that the administrator at any time after he became guardian, had this money separated from other money, and marked as the ward’s money, so as to make it the ward’s property, or after two years from his administration, had it marked and labelled as money of the estate ; there would in the case first put, be something wherewith to charge him as guardian, as by such appropriation it became the property of the ward, and in the second case, there would be facts upon which the judge’s rule might operate. Butin the case stated there is nothing to make this sum the property either of his ward, or of the estate, so as to leave room’for a presumption in which character *J. J. Carrington*held it. In *Clancy v. Dickey,*the negroes had been of the.estate, the executor became guardian, and had them in his possession after tlie time in which he could rightfully hold them as executor. The law therefore adjudged, in the absence of positive, proof, that he held them as he rightfully might, viz: as guardian.

Per Curiam. — Judgment reversed.