(Charge.) This is an action to recover a balance on a guardian account before the Orphans’ Court, passed by defendant. Defendant alleges plaintiff has misconceived his action, and secondly, that he has a set-off against that balance by bringing up Negroes to the amount. As to the first point, that the action should have been upon a bond, suggested to you, we think it is as necessary defendant should give a bond in evidence, which he should prove, as it is for a plaintiff who brings his action upon a bond. The same requisites are necessary for a defense as for support of plaintiff’s demand. If you were satisfied there is a bond, I say, supposing a bond, the question would be whether this action could be supported. We are not bound to determine this point unless the fact were proved. The authorities cited do not come home to this case, for they all suppose contracts entered into by persons at years; this bond was taken by a deputy commissary, and the party interested was an infant. We can conceive a guardian appointed and no bond given. The deputy commissary might be mistaken in the law and think a mother might legally appoint a testamentary guardian for her child. Defendant says plaintiff owes him as much as the balance for raising Negroes; plaintiff says defendant owes him more by £36 for the hire of the mother. We differ from both, for we think the record of the Orphans’ Court is conclusive on this subject; for they ascertain the balance, allow for all trouble and expenses of accountant, and must have had the case of the Negroes under their consideration. If the balance is due, interest must be allowed.
Verdict for plaintiff.