#### AUGUSTIN VANHOOK, Adm’r of ROBERT VANHOOK to the Use of the President and Directors of the Bank of Newbern, v. CAREY WILLIAMS and JOHN BARNETT.

An administrator who is surety to a debt of his intestate, by giving his own bond in lieu of that of his intestate, and taking up the latter, intends prima facie a payment of the debt, and not a continuance of it.

AfteR the new trial granted in this case at December term 1833, (see 4 Dev. Rep. 268,) it was tried again at Person on the last Circuit, before his Honor Judge Dick.

Upon the second trial the case was as follows: Thomas Winstead as principal and John Garner as surety, were indebted in two several notes to the President and Directors of the Bank of Newbern; one for the sum of nine hundred dollars due the 27th of February, at their Branch Bank at Raleigh; and the other for five hundred dollars due the 11th of February 1827, at their agency at Milton. Thomas Winstead died intestate early in the year 1827, and John Garner became his administrator, and the defendants executed the administration-bond on which this suit was brought,.as his sureties. ' About eight hundred dollars of assets came into the hands of the administrator. Mr. Wetmore, the agent of the Bank at Raleigh, testified that Garner, on the 24th of October, 1827, gave his note with sureties to the bank for eight hundred and ten dollars and cash for the balance; and So paid or renewed the note for nine hundred dollars in that bank in which his intestate was principal and himself surety. This .note of eight hundred and ten dollars so given by Garner, was paid on the 30th of July 1832 by Carey Williams, who was a surety to it, as well as one of the sureties to Garner’s administration-bond. The bank brought suit on the note of five hundred dollars due at the Milton agency; and Garner, as the administrator of Winstead, and for himself as surety, confessed a judgment on the same at September Sessions 1830, of Person County Court. In this action on Garner’s administration-bond, brought to subject his sureties to the payment of the bank judgment, the defen-*261dan'ts relied on their pleas of “conditions performed” and “ conditions not brokenand contended that the confession of judgment by Garner, the administrator, did not conclude them as to the fact, that, he had not assets properly applicable to the satisfaction of that judgment; and that in truth Garner had legally and fully administered the estate of Winstead.

His Honor charged the jury “ that the evidence of Wet-more, if believed by them, proved the payment of the nine hundred dollar note, or not, according to the intention of Garner in that transaction. If Garner intended by the substitution of his note to make the debt his own, then it was a payment; but if he only intended to renew and continue the debt as the debt of his intestate, that then it was not a payment.” The jury returned a verdict for the plaintiff; and the defendants appealed.

P. H. Mangum, for the defendants.

No counsel appeared for the plaintiff.

Daniel, Judge,

after stating the case as above, proceeded : — This Court is of the opinion, that as Garner was surety only, and his intestate the principal in the note at 'the Raleigh Branch of the Newbern Bank, and discharged that note by means of cash advanced, and a discount of his own note, the testimony of Wetmore, if believed, proved a payment by the administrator, of the nine hundred dollar note; and that there was nothing in the evidence which could legally authorize the jury to infer that Garner intended to continue the debt as the debt of his intestate. We are of the opinion that there should be a new trial, which is granted.

PeR Cumam. Judgment reversed.