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The opinion of the Court was pronounced by

Hutchinson, C. J.

It appears by the exceptions, that on the trial of the issue, the plaintiff offered in evidence just such a note as he had described in his declaration.— The defendant objected to the reading of this note, but it was admitted by the Court; and we think, correctly. The question for the jury to try was, whether the declaration *438was true ? This note was direct evidence to prove it. The reasons, urged by the defendant against the reading of this "note, are only applicable to show the declaration insufficient.

Again, the testimony, offered by the defendant, was correctly excluded. The plaintiff’s saying to the appraisers, that this note must not be collected but be delivered up, did not prevent their appraising it at twenty dollars, which made him accountable for that sum before the Court of Probate. Pie told no fact, which if true, would make a defence to the note ; such as that it was fraudulently obtained, or was paid. He might have heard and believed things as having happened before the decease of Jotham Wheelock, which yet are not true. He is not suppposed^to know any thing, not resulting from his own acts, but from those ofhis intestate. If this administrator had conceded, that he had received the pay on the note, that might be good evidence for the defendant. That would be his own act, and would bind him to account before the Court of Probate. The evidence, offered, would show, that the plaintiff has accounted for the twenty dollars, the appraised value of the note. If he recovers and collects any more, he must account for that also.

We pass to consider the motion in arrest, which is founded upon a supposed defect of the declaration. This presents the question, whether the suit was correctly brought in the name of the plaintiff, as administrator of Jotham Wheelock, or whether it should have been brought in the name of Ebenezer Wheelock. The note was executed in the life time of said Jotham,. and while said Ebenezer was his guardian; and was made payable to Ebenezer Whee-lock, guardian, &c. Several authorities are cited, that seem to support this declaration. Such are the cases of Corporations, where the Treasurer has been treated as the mere agent of the Corporation, in a suit upon a contract where the treasurer is named as payee. In such cases as that of Arlington vs. Hinds, the Whitelaw case, and the case in ñth Mass. Rep. the agents may be considered as having exceeded their authority, or stepped aside of their duty in so shaping the contracts, as to make them payable to themselves $ and the consideration having passed from *439tíie corporation, they have a right to treat their Treasurers as mere agents, and claim the promise as enuring to the Corporation itself. When the signer promises the'' Corporation that he will pay to their Treasurer, there is' no difficulty. The consideration moving from the prom-isee, it is natural, in case of Corporations, that the' promise' to them should be to pay to their Treasurer, who’ is their agent especially appointed to receive their funds. And, when it is obvious, that the consideration moves from a corporation and the promise is to pay to one, who is merely the agent of such corporation, there is not much fiction in considering this as a promise to the corporation, that the pay shall be made to such agent. Probably a declaration should be so made upon such a; contract, to be according to its legal' effect.

In ascertaining how far those authorities are applicable' to the present case, we must decide whether a guardian-is a mere agent, like the treasurer of a corporation. We think he is not to be so considered. He acts upon his own responsibility, he is under bonds to account for all the monies, which come under his care, belonging to his ward. It best comports with legal principles to consider the guardian, in a note drawn like this, as the Trustee, and the legal interest in him ; and require the action to be in his name. His name being inserted as payee, the adding the words, “ guardian to J-otham Wheelock, does not change the payee, but points out the certui que trust. And to him the guardian must render an account, either of the fund paid out on receiving this note, or for the amount of the note when collected.

We need not- now decide, whether Ebenezer Wheelock; rendered himself liable to account for the fund, by taking the note in this form, or what other circumstances might, render him thus liable. This question could not arise where he, acting for his ward, took a note payable to his ward. In such a case, upon a change of guardian, the note might pass to the new guardian, and be sued by him without naming the former guardian. So, in case of the decease of the ward, the note would pass to the administrator, and might be sued by him. And, if any loss should happen by the neglect or unfaithfulness of any guardian. *440the reasonable damages for such neglect might be record ered of him upon his bond.-

Washburn, for defendant.Colhtmer, for plaintiff.

Suppose a suit had been commenced by Ebenezer Whoe-* lock, as guardian, while he was in fact such, and the guardian should be changed, or the ward should die, and an-administrator be' appointed, it would hardly be thought of as practicable, for such new guardian, or such administrator, to come in, and- be entered as plaintiff to prosecute the suit, thus commenced by the first guardian.

There- is no such difficulty, when-a suit is commenced by án administrator, and he dies, or is-discharged, and another is appointed. In any such case,- the new administrator comes in as plaintiff, and prosecutes the suit. Had Eben-ezer Wheelock sued this note and died, his administrator could finish the suit for the benefit of Jotham, or his estate.

The judgement of the County Court is reversed, and the judgement to be entered, to dispose of the action, is, that judgement be arrested, and, as the motion in arrest was made in the County Court, the defendant recovers his cost of this term, but nothing more.

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