
    Jones’ Ex’rs v. Watson.
    [Thursday, October 14, 1802.]
    Appellate Practice — Commissioner’s Report — Excep» fcions — Waiver.--After two references before Commissioners appointed by the County Court, to settle an administration account, and one reference to a Commissioner of the High Court of Chancery, no exception, for the want of credits, will be allowed here, which was not made at one of those examinations.
    William Watson brought a bill in Chancery against Richard Jones and Eittleberry Royal, executors of Richard Jones deceased, stating, that William Watson, the plaintiff’s father, devised a tract of land to the plaintiff, who was an infant. That Richard Jones, Edward Jones, and Daniel Jones, were appointed executors of the will; that Edward is dead, and no account of his administration has been rendered. That the profits of the lands were considerable. That Richard Jones was the acting executor, and that he also acted as guardian to the plaintiff, but has not rendered any account of his transactions in either character. That the plaintiff has only received 641. from the estate. That since the death of the said Richard Jones, Commissioners, appointed' by Amelia Court, in 1786, have found a balance due from the said Watson’s estate to the said Richard Jones of 1021. Os. Id. That the plaintiff had four sisters, who had lands and slaves devised them by their father, and, therefore, if the balance was due, they ought to contribute their proportions, which would leave the plaintiff only chargeable with a fourth, *that is to say, 251. 10s. 0^. That the said balance, however, is not due. That it would not have been suffered to have lain so long if it had been due. That since the death of the said Richard Jones, the defendants have sued the plaintiff for 421. 18s. 8%. in Amelia Court, on account of the said balance; the last debit of which is in the year 1770. That the suit was referred to Commissioners, who, as the plaintiff did not attend on the second day, awarded the said 421. 18s. 8against him. That a month was allowed the plaintiff to shew discounts; but on the day appointed by the plaintiff, one of the Commissioners was necessarily called off. That, before the succeeding- Court, the plaintiff called on the defendant with his witness, and the certificate of one Wootten, which the defendants agreed should be evidence, but alleged, that the month was out, and that he would proceed to get the money. That thereupon, the plaintiff obtained a supersedeas to the judgment; which was affirmed, in the absence of the plaintiff’s attorney. The bill, therefore, prays for an injunction, an account of Watson’s estate, and for general relief.
    The answer states, that the testator in 1774 desired the defendant to state his administration account for him; that he undertook it, but was prevented by his own business, until after the testator’s death in 1778. That after the war was ended, the defendant applied to the plaintiff and Thomas Williams, who had married one of the plaintiff’s sisters, and requested them to consent to have Commissioners appointed to settle the accounts; which they agreed to; and, thereupon Amelia Court made an order for that purpose. That in January or February, 1786, the Commissioners, in presence of the parties, examined the accounts, but in consequence of an objection raised by the plaintiff, they did not finish. However, with the consent of the plaintiff, they appointed the 6th of March following, when, the plaintiff not appearing, they reported 1021. 8s. Id. due his testator from Watson’s estate, on account of monies furnished *Munfo’rd and the plaintiff. That the plaintiff’s proportion thereof was 421. 18s. 8%. 
      'That upon application for payment, the plaintiff started an objection, that Edward Jones’ administration account had not been settled; whereupon the defendant brought suit, which was referred to Commissioners, who reported the same balance; and the defendant said he was contented therewith. But, he growing dissatisfied some time af-terwards, the defendants agreed to another reference, on condition that there should be no appeal; that the next referees made the same report, and that the plaintiff had notice of the time and place of their meeting, but did not attend: In consequence of which, when the judgment on the award was entered up by Amelia Court, the defendants agreed to allow the plaintiff a month to shew his discounts, which he failed to do. That Wootton’s evidence was before the last Commissioners, and the defendant believes the award to be just.
    Call, for the appellant.
    There had been several settlements by Commissioners and referees under orders of the Court: after which, according to many decisions here, the appellee ought not to have been allowed to disturb the transactions, or unravel the accounts. It will be no objection, that the appellant agreed to allow a month for shewing discounts against the last judgment; for, that merely related to discounts, and not to a right of overhauling the account itself. The discounts have been applied by the Commissioner; for, Dyer’s and Sweeney’s rents for the ordinary, are credited in the report; and as to those for the lands, they are all accounted for, as appears by the account, except those incurred during the time that Edward Jones was the acting executor. Therefore, if the Court of Chancery could interfere, after the orders of reference, the just credits have been given, and a balance of 161. still left in favor of the appellant; who is entitled to interest thereon, according to a former decision of the Court in Jones v. Williams, 2 Call 102.
    *Duval, contra.
    The executor advanced the infants more money than the amount of the profits of the estate, which was w'rong. The daughters are credited for 751. profits of the estate, although the lands belonged to the son. In that respect, therefore, the referees first, and the Commissioners after-wards, proceeded on an erroneous ground.
    Call, in reply.
    The over-payments to the appellee arose from the advances of the 601. and 141. after he came of age; and, therefore, the objection fails. As to the profits, they probably proceeded from keeping the slaves together, and each child’s drawing its share. At any rate, the appellee ought not to be allowed to take an exception upon that ground now; because, no objection was made upon that score, either before the referees, the Commissioner, or the Court of Chancery, where it might have been answered ; but it is not fair to object to it in this Court, after omitting it in the Court below, because, as no objection was made on the former occasions, the appellant had a right to conclude that none wo.uld be raised afterwards; and the presumption is, that it was satisfactorily accounted for, at the former investigations.
    Cur. adv. vult.
    
      
       See monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
   PENDLETON, President.

The subject of this dispute was before the Court in October, 1799, in the case of Jones v. Williams, another residuary legatee in Watson’s will. The neglect of the executors, in not accounting from 1752 to 1786, was then, as now, complained of, for which some apology was then suggested and approved by the Court, from the supposed confidence which the legatees had in their uncles, the executors, whose accounts the children, probably as they came of age, examined, received their estates, and were satisfied: And the rather, since Edward, the only ^acting executor for six years, never rendered any alccount, nor does it appear that they ever required such account, or were dissatisfied about it. Indeed, it does not seem, that either Williams, or Watson, ever called on Richard to account, but, both having contrived to get more than their share from him, it became necessary for Richard’s executors to make up the account of his administration of Watson’s estate, in order to recover back what had been over-paid. Accordingly,’ in 1785, by consent of those executors, and Williams and Watson, an order of the County Court of Amelia was made, appointing Commissioners to state and settle that account, which, in March 1786, was returned and ordered to be recorded; making a balance, due from Watson’s estate to Jones’s, of 1021. 8s. Id. Watson being charged with his proportion of that balance, and his private account stated, a balance remained due from him to Jones’s estate, of 421. 18s. 8d. ; which it is supposed he assumed to pay, but neglected it; and in May, 1787, Jones’s executors brought a suit at law to recover it, which suit was afterwards in March, 1790, referred to arbitration, and an award returned in March, 1791, in favor of the plaintiffs for 421. 18s. 8d. ; but, on Watson’s motion, and the plaintiff’s consent, it was referred back to the arbitrators to be re-considered, and, in May, 1792, the arbitrators reported that Watson had failed to attend them; and that they had re-examined the account and vouchers, and discovered no reason to change their former award: Upon which, judgment was entered for the plaintiffs; but, even then, he had one month allowed him to shew any further just discounts; which he never brought forth. In June, a writ of fieri facias issued, which was executed, and a forthcoming bond taken. In March, 1793, that execution and bond were quashed, a new execution issued in April, which was also executed, and- a forthcoming bond taken, on which bond, judgment was entered in May, for 651. 10s. lid. with costs. In June, Watson obtained a super-sedeas to that judgment, which was affirmed in the "^'District Court, finally in September, 1795: And in March, 1796, he obtained an injunction, on filing the present bill. Upon the hearing, the Chancellor referred it to a Commissioner to examine and report upon the accounts; who says that, after being attended by the parties, hearing their several allegations, examining' their papers, and adjourning for time to procure further testimony, he had stated an account between them, reducing the balance due, from Watson’s' estate to Jones’s, to 161. 2s. 9d. exclusive of interest. To this report exceptions are filed by Watson, suggesting that it appears by the depositions, that several, tenants lived on Watson’s land, whose rents are not credited in the account. The final decree makes the injunction perpetual against the whole judgment at law, and awards Jones’s executors to pay the costs, from which the appeal is entered. On what ground the Chancellor disallowed the balance of 161. 2s. 9d. and perpetuated the injunction for the whole, the Court are not able to discover. If it was upon the supposition, that rents to that amount had been received and not accounted for, it is observable that' various rents are credited, and it does not appear in proof that any more ' were received by Richard Jones ; and considering that Watson had so many opportunities, from the year 1785 to 1796, to bring forth proofs of any credits Omitted,' befofe thé' auditors in the country, the arbitrators, and the Chancery Commissioner, it is presumable he has brought forth all he was able to discover, and very unreasonable to make the executor chargeable upon grounds merely suppositions; atld ' to add to this severity, the executors are charged with costs in equity; the necessity of applying to which Court was occasioned by Watson’s own neglect.

The Court, therefore, reverse the decree with costs, and dissolve the injunction as to 161. 2s. 9d. with interest from the first of May, 1787, and all *the costs of common law, as- well in the District as County Court, exclusive however, of the damages awarded in the District Court on the affirmance of the judgment, and the injunction to stand and be perpetual as to the residue, and the parties are to bear their own costs in the Court of Chancery.  