#### JOHN A. ANDERSON vs. LEMUEL R. JERNIGAN.

A reference to the Clerk of the Court to take and report the accounts of an executor, administrator or guardian, can only he made, under the Act of 1826, Rev. Stat. oh. 31, sec. 119, in a suit brought upon the bond given by such executor, administrator or guardian for the faithful performance of his duty.

The case of Lynch v. Johnson, 11 Ire, 224, cited and approved.

Appeal from the Superior Court of Law of Hertford County, at the Fall Term 1850, his Honor Judge Caldwell presiding.

The suit was commenced by warrant in debt on a former judgment for $45 66, and, on the trial, the defendant suggested the want of assets to the magistrate, who endorsed the suggestion on the warrant, and gave judgment for the plaintiff for the debt demanded and interest and costs, and returned the proceedings to the County Court. The defendant appeared and pleaded, no assets, and plene ad-ministravit, and issue was taken thereon. By the consent of the parties an order was then made, referring it to the Clerk to take and state an account of the personal estate of the intestate, in the hands of the defendant, or for which he ought to be liable to the plaintiff in this suit. The Clerk made his report to the next term, by which it appeared that the defendant had fully administered, and that a small balance was due from the estate to the defendant. The plaintiff took several exceptions to the report, which were overruled; and then the Court confirmed the report, and the plaintiff appealed to the Superior Court. In the lat« *415ter Court his Honor overruled all the plaintiff’s exceptions but one. That he allowed, and, by doing'so, the balance of the account was changed so as to make the defendant debtor to the estate of his intestate in the sum of $7 60 ; and, for that sum and the costs, there was judgment against the defendant, from which he appealed.

B. F. Moore and Barnes, for the plaintiff.

. Bragg and Smith, for the defendant,

Ruffin, C. J.

The reference was not to the Clerk as an ar-bi trator. The parties did not treat the report as an award, and it is plain, that it was not so intended to be. The purpose was to proceed under the act of 1826, upon the supposition that the case was within it, as was done in Lynch v. Johnson, 11 Ire. 224, and there held to be erroneous. Issues were joined in the record for the jury, and there has been no trial of them; consequently the judgment, thus rendered without a verdict, must be reversed, and the cause remanded for further proceedings according to .law.

Per Curiam. Judgment reversed and cause remanded.