King v. Hughes

McCay, Judge. 1. There is nothing in the proceedings before the ordinary that concludes inquiry into the accounts of the defendant below. The judgment permitting him to resign and discharging him from his office is no adjudication that he has settled with the new guardian. He must be discharged from his office before a new one can be appointed, since it is plain there cannot be two guardians at the same time, one succeeding the other. No settlement can be had until the new guardian is clothed with his office, and this is the clear intent, not only of the Code, section 1848, but of the act of 1850; Cobb's Digest, 339, and act of 1857, pamphlet, 60, 61. 2. It is very plain, from the testimony, that there was never any settlement between the new guardian and the old. The receipt does not purport to be in full, but only of the money left with the ordinary, the specific money. As it was in Confederate money, the new guardian had a right to suppose it was legally and properly in that money, and that either the old guardian had originally got it- in that money, or that in the due and legal execution of the trust it had, without fault, got [605] into that money, and, at last, that is the question in this case. The facts as they appear in the record, are perfectly consistent with the idea that this guardian. mixed this money with his own funds, and that what he paid over to the ordinary was the amount he was due the lunatic, not what he had on hand, but what he owed. He got it in par funds. How did it get into Confederate money? Nobody knows but him. To prove that he did not lend it out, is to prove a negative. To prove he did, and that he took Confederate money in good faith from the borrower, was a matter that he could prove if it was true. He might even show this by his returns, but they treat him simply as a debtor, as having mixed the funds with his own. It was for him to show what the truth was. 3. Upon the whole, we think the jury justified by the evidence in their finding, and that there was no error in refusing the new trial. Judgment affirmed.