B. H. Clarke vs. The State use of Darnall, Guardian of Hall, 8 G. & J. 111

ARCHES, Judge, delivered the opinion of the court. The defendant having offered the proof set out in the bill of exception, himself raises the question, as to competency of the orders of the Orphans’ court, and the accounts passed by the executors of Francis M. Hall, as evidence, that Francis M. Hall has qualified as guardian of the minor, and had given bond as such, that Richard Hall had paid over to Francis M. Hall as guardian all the moneys in his hands belonging to the ward. The court decided they were no proof of that fact; and in this opinion we think the eourt were right.

By the act of 1798, ch. 101, sub ch. 14, sec. 4,' no person although appointed as guardian, is qualified to act as such, until he has bonded ; and this the prayer would seem to concede; and such qualification could only be established by the adduction of the bond, or an office copy thereof, unless indeed the bond had been lost, or the record thereof was destroyed or lost, when proof of an inferior character might perhaps be admissible. But no attempt has been made to let in such inferior proof by the adduction of any evidence of such loss or destruction.

Until this at all events was done, it is perfectly clear, that such proof was not competent, because not the best proof the nature of the case affords. The acts and declarations of Francis M. Hall, under the circumstances, would be clearly incompetent to prove such guardianship. All this evidence offered on the part of the defendant, was inadmissible upon another ground.

The rejoinder had placed the issue entirely on the collection and receipt by Richard Hall of the money claimed as guardian for his ward; and all the aforegoing evidence, intended to establish the fact of his having discharged himself of liability by the payment of the sum proved to be in his hands, to a successor legally qualified to act; was foreign to the issue, and was therefore inadmissible proof.

Without adverting to other objections urged against the evidence offered by the plaintiff, which appears in the same bill of exceptions, it will be sufficient to say that it was entirely inadmissible, because having no relevancy to the issue, which was before the jury, the court ought in our opinion to have rejected this evidence, and in this respect, we think the court erred.

But for this error, we do not think the judgment ought to be reversed, as the evidence could by no possibility have had an influence upon the minds of the jury, it being entirely irrelevant to the issue; the plaintiff had offered uncontro-verted evidence to the jury of the truth of the issue; and all the efforts of the defendant to introduce irrelevant testimony bottomed on the hypothesis of the receipt of the money by Richard Hall, had of course assumed the proof of the issue on the part of the plaintiff. JUDGMENT AFFIRMED.