
    Richmond.
    Wills’ adm’r v. Dunn’s adm’r. Mason’s ex’or v. Dunn’s adm’r.
    
    (Absent Cabell, P.)
    1. It is error to make a personal decree against an adm’r without an account or admission shewing assets of his intestate’s estate in his hands sufficient to satisfy the decree.
    2. An adm’r whose administration terminated before 1797, is to be charged but five per cent, upon the balance of principal found against him upon a settlement of his account.
    3. The impropriety of the charge of six per cent, interest upon such balance, appearing upon the face of the commissioner’s report, which was the basis of the decree; and not being susceptible of being repelled by extrinsic evidence, it will be corrected by the Appellate Court, though not excepted to in the Court below.
    4. One of two adm’rs having taken no active participation in the administration of the intestate’s estate, and having died, his adm’r is not a necessary party to a bill filed by the distributee for an account of the administration of the estate.
    5. The widow of the intestate having received her third of the estate, and died, her personal representative is not a necessary party to a suit by the only child of the intestate to recover his proportion of the estate from the adm’r.
    6. A commissioner’s report, purporting to be made in obedience to an order of the Court, and the Court having made the report the basis of its decree, and there not appearing to have been any question of the commissioner’s authority in the Court below, the Appellate Court must presume that it was made by proper authority, though no order of account is in the record.
    7. Au adm’r having failed to render an account of crops, rents and hires which came to his hands, proof of the estimated net annual value may be resorted to for the purpose of charging him.
    8. An adm’r qualifies as such in 1785; his administration terminates in 1794; and some years afterwards he dies, never having settled his administration account. The distributee, who was a child in 1785, files his bill in 1819 against the representative of the adm’r for an account, who professes total ignorance as to the accounts, except what may be learned from the books and papers of the adm’r, but submits in the answer to account. After an account has been taken, and a decree has been made upon it, the objection on the ground of laches, will not avail in the Appellate Court.
    9. A personal decree is made against an adm’x in favour of the distributee of an estate, of which her intestate was adm’r, without an account or admission of assets by her, which upon appeal is for this cause reversed. Previous to the appeal, in an action on the administration bond, a judgment is recovered against her sureties for the amount of the decree: and upon the appeal by the adm’x, the sureties file a bill to enjoin the judgment against them, on the ground of errors in the decree as against the estate of the intestate of the adm’x; and in their bill they charge that the adm’x had distributed a large estate among the distributees of her intestate; and they ask that if the decree against the adm’x is affirmed, these distributees shall be compelled to relieve them. Held : That though the personal decree against the adm’x is reversed for the want of the proper evidence of assets in her hands, yet as it is affirmed as against the estate of her intestate, that as to the sureties, the sufficiency of the assets is not denied in their bill and is determined by the judgment against them.
    In 1819, Thomas Dunn, as the administrator de bonis non of Lewis Dunn, deceased, and as heir and distributee of said Lewis, filed his bill in the County Court of Sussex, against William Wills, and Lucy his wife, who was the administratrix of Thomas Dunn the elder, and against Allen Temple, as the administrator de bonis non of Nathaniel Dunn, deceased. He charged that his father Lewis Dunn died about February 1785, intestate, leaving the complainant his only child, and a widow who had been dead for some time before the institution of the suit. That Thomas Dunn and Nathaniel Dunn had qualified as administrators on his estate. That Nathaniel Dunn had died soon afterwards, without taking any active part in the administration; and that Thomas Dunn had taken the whole estate into his possession. That without any legal authority, Thomas Dunn kept together the whole estate, real and personal, and managed it himself from 1785 to 1794, both inclusive, when William Parham qualified as guardian of the plaintiff, and received the estate into his possession. That Thomas Dunn died without ever having settled his administration account, or accounting with the plaintiff or his guardian, for the profits of the estate. That his widow Lucy qualified as his administratrix, and afterwards married William Wills. That they had returned to the Court an ex parte account of the administration of Thomas Dunn on the estate of Lewis Dunn, deceased, in which they make the estate debtor to him in the sum of £ 484. 9. That the account was a tissneof errors and improper charges throughout; and he proceeds to specify various errors of omission in failing to credit the estate with profits received, and moneys which went into his hands. He calls upon Wills and wife to discover all the information and every paper and document in their possession connected with the administration on Lewis Dunn’s estate; and asks that an account may be taken, and that the balance found due may be decreed him, and for general relief.
    With his bill he exhibited an answer filed by Thomas Dunn in 1796, to a bill filed against him by Nathan Heath, and his wife Elizabeth, who had been the widow of Lewis Dunn, to recover her dower and distributable share in the estate. In this answer, Thomas Dunn the elder stated that all the personal estate, except slaves, had been exhausted in the payment of debts; and that three slaves had been sold for the same purpose, and that there were debts still outstanding; and he exhibited with his answer an account of his administration, and an inventory of the estate.
    
      Wills and wife answered the bill in November 1819. William Wills says, he had been married several years before he knew that Thomas Dunn had been the administrator of Lewis Dunn. That some time after-wards, the County Court of Sussex made an order directing him to make out an account of the administration of said Thomas on Lewis Dunn’s estate. That the books and papers relating to it had been put into the hands of a commissioner some time before, by the female respondent, but that no report had been made; and upon the making of this order, he had obtained possession of them, and had immediately made out an account which he believed to be just and fair, which was made out almost entirely from information derived from these books and papers, and which he offered to the County Court.
    The defendants say they are utterly ignorant of the charges of error stated in the bill; and they call for strict proof of their justice, as the complainant has delayed to make them for several years after arriving at manhood. And they have no objection to an order directing all the books and papers relating to Lewis Dunn’s estate, to be laid before a commissioner, in order that a report may be made thereon ; nor have they any objection to the adoption of any plan by which justice may be speedily attained between the parties.
    In July 1822, a commissioner of the Court returned to the Court a report, in which was a statement of the accounts of Thomas Dunn’s administration on the estate of Lewis Dunn, deceased; by which the administrator is found to be indebted, on the 31st of December 1801, 790 dollars 99 cents of principal, and 459 dollars 79 cents of interest, up to the 31st December 1800. There is no order of account in the record, but the report says: “Pursuant to a decretal order of the County Court of ¡S-ussex, to me directed, I have stated an account current of Thomas Dunn’s administration on the estate of Lexois Dunn, deceased, which is hereto annexed.” It then proceeds to state that Thomas Dunn took possession of the estate in the beginning of the year 1785, and retained it until the end of the year 1795: that he worked the slaves on the land, and made crops to a considerable amount above what was necessary to their support, of which he had furnished no account; nor had he furnished any account of the hires of the slaves, or the rent of the land. That the commissioner had endeavoured to ascertain what ought to have been the net annual income of the estate, and had fixed it at 150 dollars per annum. That it appearing that Nathan Heath, who had married Elizabeth, the widow of Lexois Dunn, had instituted a suit against Thoxnas Dunn, as administrator of Lewis, to recover his wife’s share of the estate; and the commissioner, presuming it had been allotted to her, he had deducted the one third from the supposed net profits, and had credited the estate with 100 dollars annually; and in stating the account, that he had charged interest at five per cent, until the end of the year 1797, and after that he had calculated it at six per cent, per annum.
    Several depositions are filed in the cause, but it does not appear when or where, or by whom they were taken, or that the witnesses were sworn ; but there does not appear to have been any exception to them. The record says: “ The following evidence was filed by the complainant.”
    “ William Parham states that,” &c.; and all the other depositions commence in the same way. It was upon the testimony of these witnesses, that the commissioner made the estimate of the net profits of the land and slaves, &c.
    
      In July 1823, the cause came on to be heard, as the decree states, “ on the bill, answer, exhibits, and the master commissioner’s report, returned at July Court 1822, to which exceptions have been filed,” when the Court decreed that William Wills and Lucy his wife, who was administratrix of Thomas Dunn, sr., should pay to the complainant the sum of 1250 dollars 78 cents, with interest on 790 dollars 99 cents, part thereof, from the 31st of December 1801 until paid, and the costs of the suit.
    At the foot of this decree the clerk certifies, “ that the exceptions mentioned in the above decree are not filed among the papers in the cause.”
    Soon after this decree was made, William Wills seems to have died ; and in March 1825, upon the petition of Lucy Wills, administratrix of Thomas Dunn, an appeal was allowed her to the Superior Court of Chancery for the Richmond district; and the cause coming on to be heard in June 1826, the Chancellor, without reversing or affirming the decree of the Court below, recommitted the report made to the County Court of Sussex, to a commissioner of the Chancery Court, for him to consider and report thereon.
    The cause then slumbered on the docket without any steps being taken to prepare it for trial, until June 1843, when the appellant presented to the Superior Court of Chancery for the Richmond circuit, to which the cause had been transferred, a petition, in which the previous pleadings and proceedings were set out, and it was stated that the original record, with the petition for appeal, and the assignment of errors, were lost or mislaid in the office; and leave was asked to file another transcript of the record, and to assign the errors anew. The leave was given, and the appellant assigned as errors,
    1. That the administrator of Nathaniel Dunn, who was the co-administrator of Thomas Dunn, deceased, ought to have been before the Court at the time of the decree.
    2. That Mrs. Heath, the widow of Lewis Dunn, deceased, and as such one of his distributees, was a necessary party, but was never made a party in the cause.
    3. That the account upon which the decree rests was taken without authority, and was entirely ex parte.
    
    4. That the evidence on which the account was based was not legal evidence, it consisting of ex parte statements unauthenticated.
    5. That the evidence, if admissible, does not justify the commissioner’s report.
    6. That no allowance was made for the board, clothing, &c. of the widow and the plaintiff, or for the education of the plaintiff.
    7. That the bill of the plaintiff should have been dismissed on account of his long delay and acquiescence, until, by lapse of time and the death of 'Thomas Dunn, sr., it had become impossible to make a just settlement.
    8. -That it was manifest error to decree against Wills and wife personally the balance found due from their intestate, without any account or other evidence shewing assets in their hands.
    In January 1844, the cause was revived in the name ' of the administrators of Lucy Wills and Thomas Dunn, sr. as appellants, and the administrator of Thomas Dunn, jr. and Lewis Dunn, as appellee. And at the same term of the Court the order recommitting the report of the commissioner was by consent of parties set aside.
    Soon after the case of Dunn against Wills and wife was taken to the Richmond Chancery Court, Joseph Mason and John R. Mason, sr., filed their bill in that Court, in which they referred to the proceedings in that case, and stated that they, with John Green, who had died insolvent, were the sureties of Lucy Wills, as administratrix of Thomas Dunn, deceased. That an execution had issued on the decree against Wills and wife, and had been returned “ no effects.” That Tho?nas Dunn, jr. had thereupon brought a suit against them upon the administration bond, and recovered a judgment for the sum of 1288 dollars 14 cents, with interest on 790 dollars 99 cents, from the 31st of December 1801 until paid. That on the 12th of July 1824, they had settled with the said Dunn, and had paid him the whole amount of said judgment, which amounted, principal, interest and costs, to 2423 dollars 79 cents, by executing to him their bonds each for one moiety thereof, with the other as his surety. That John R. Mason had paid off his bond, except the sum of 202 dollars 65 cents, credited thereon, for an error in calculating interest. That Joseph Mason had not paid off his bond, on which suit had been brought, because Thomas Dunn, sr. had left a considerable estate, real and personal, which had been distributed among his four children. That Wills, having spent his wife’s portion of the estate, had died insolvent; and the only hope of reimbursement was from the children. That when they were applied to for indemnity they refused to give any, on the grounds, first, that the decree against Wills and wife was manifestly erroneous, and ought not to have been submitted to; and second, because, as they alleged, there was a balance of the personal estate of Thomas Dunn, sr. in the hands of the administratrix, which had never been paid to them, and which was sufficient to cover this debt. That the plaintiffs are advised the decree is certainly erroneous, and that Mrs. Wills had obtained an appeal, which was then pending in the Court. That they believe it will be found that nothing is due to Thomas Dunn, jr. from the estate of Thomas Dunn, sr.; and that when they gave their bonds, and made the payments aforesaid, they were ignorant of any objection to the said decree. That if the said decree shall be reversed, and Thomas Dunn, jr. is not entitled to the money decreed to him, then they claim that he shall refund to John R. Mason the money Pa^ by him, with interest, and be enjoined from proceeding against Joseph Mason upon his bond ; or if the decree shall be affirmed, that they are entitled to be indemnified by the heirs and distributees of Thomas Dunn, sr. And they proceed to shew the estate distributed among the children of Thomas Dunn, sr., which is proved to have been large.
    The plaintiffs make Thomas Dunn, jr., Lucy Wills and the children of Thomas Dunn, sr., parties, and ask for an injunction to restrain Thomas Dunn, jr. from proceeding on the bond executed by Joseph Mason; and that if the said decree is reversed, he may be compelled to refund the money paid him by John R. Mason, with interest; or if the plaintiffs cannot have relief against said Dunn, that the children of Thomas Dunn, sr. may be compelled to indemnify them. The injunction was awarded.
    
      Thomas Dunn, jr. answered the bill, admitting that he had instituted the suits as stated ; that the judgment against the complainants was discharged and settled as stated in the bill; and that the judgment against Joseph Mason, on his individual bond, was still unsatisfied. He stated that this judgment was not for the original amount of the bond; but was subject to a credit endorsed thereon, for the same amount as had been credited on the bond of John R. Mason; which credits were a release of the full amount of a mistake made by the commissioner in the principles upon which interest was calculated upon the settlement of the account. He does not admit that there is any error in the decree, other than that released as aforesaid, and says that it was not controverted either in the action on the official bond, in which the plaintiffs were parties, or in the original chancery suit, of the pendency of which, they were well apprised, and to which they might have procured themselves to be made parties. But if there is error in the decree, he insists that the ignorance or misconception of the plaintiffs, of the legal principles involved in it, or of the extent of its obligations on them, is no ground for setting aside a settlement fair on his part, and when all the facts were in the possession of the complainants.
    The children of Thomas Dunn also answered, contesting the right of the plaintiffs to indemnity from them, on the ground that Wills and wife were largely indebted to them as representatives of Thomas Dunn, sr.; and that the plaintiffs, as sureties of Mrs. Wills, were bound for her devastavit.
    
    This suit also lingered on the docket. It was revived in June 1842, in the name of the administrators of John R. and Joseph Mason as plaintiffs, and of the administrator of Thomas Dunn, jr. as defendant: And the two suits came on to be heard together in January 1844, when the Chancellor — Robertson—delivered the following opinion:
    “ The first of these causes is an appeal taken by Lucy Wills, administratrix of Thomas Dunn the elder, from a decree against herself and husband rendered in the County Court of Sussex, in a suit instituted against them by Thomas Dunn the younger, describing himself as administrator de bonis non, and only heir and distributee of Lewis Dunn. The second is a suit brought about the same time in this Court by Joseph and John R. Mason, against whom, as sureties of Lucy Wills, a judgment had been recovered at law, founded on the decree in the first case.”
    After stating the cases, the Judge proceeded to consider the objections made to the decree in the case of Wills v. Dunn:
    
    
      “ 1st. The first is to the want of proper parties. The parties supposed to have been necessary are the administrator of Nathaniel Dunn, who was co-administrator with Thomas Dunn of Lewis Dunn, and Lewis Dunn’s widow.
    
      “ Nathaniel Dunn’s adm’r was made a party, though not proceeded against to a final decree. It was upon the case as stated or proved, wholly unnecessary so to proceed against him, since it is stated that his intestate took no active participation in the management of Lewis Dunn’s estate ; nor did the appellant deny the allegation, or urge any objection in the Court below. Had the party in question been before the Court at the final hearing, as the appellant insists he should have been, all that the decree could have directed, would have been, as to him, a dismission of the bill. It would be certainly unreasonable to send back the cause now to effect that object, at the instance of a third party.
    “ As to the widow, there is strong ground to infer from the record, and such was the impression of the commissioner, that she had received from the appellant and the appellant’s husband, all that she was entitled to. The appellee only claimed and recovered his own distributable portion. The appellant can have sustained no injury, therefore, from the omission to make the widow a party. If any one was injured, it was the widow. But even that could not well be, since, as she was no party, the decree does not bind her; and if it might, it is not for the appellant to complain.
    “Another objection urged by the appellant, is, that the account upon which the decree rests, was taken without authority, and was entirely ex parte.
    
    “ It is true that the order, if any, under which the account was taken, is not copied into the record. It may be that the order was made, but omitted to be duly entered or copied by the clerk; or it is possible that no order was ever made ; but I think the Appellate Court must intend, in this respect, omnia rite et solemniter acta, because the commissioner has certified that he acted in obedience to the order of the Court, because the Court substantially confirmed the report, thus sanctioning the commissioner’s assertion and authority; because no exception or suggestion appears upon the record calling that authority in question ; and finally, because the appellant suggests no diminution of the record, nor asks for a certiorari. As to the objection that the report was ex parte, I do not perceive that it can be justly so considered, since the appellant and her husband, defendants below, expressed a willingness that all the books and papers relating to the estate of Lewis Dunn should be laid before the commissioner, and he, the commissioner, expressly states, that items of debit and credit were furnished him by them.
    “ Further objections are, that the evidence upon which the account was based, was not legal, consisting of ex parte statements, unauthenticated, and if admissible, insufficient. No exception to the evidence, so far as appears, was taken in the Court below ; nor do 1 see on what ground the evidence can be said to be illegal. It is not for the appellant to object to the books and papers she and her husband consented might go before the commissioner; nor to the items of debit and credit furnished by them. The evidence of the witnesses, certified in the record, is summed up in rather an unusual form, but there is nothing to shew that the witnesses were incompetent; and as to the objection that the evidence is not authenticated, it is to be remembered, that it is made by law the duty of the clerk, in making out copies of records in appeal cases, to omit all commissions and notices to take depositions, all captions of depositions and certificates of their being sworn to, except such as may be necessary to the decision of exceptions taken to the reading of the depositions. If the want of these evidences of the authenticity of the depositions be the ground upon which the appellant objects that the statements were not authenticated, that objection cannot be sustained, since the law itself directs their omission. Here, again, the appellant does not suggest any diminution of the record, nor apply for an order to the clerk below to supply any omissions in the transcript certified to this Court, to justify an Appellate Court in reversing a decree. Objections to the evidence, of the character of those now under consideration, ought to be specific : they ought to be taken at an early stage of the cause, in order that they may be obviated by taking the depositions over again, or by furnishing other testimony. It would be a surprise upon the opposite party, and often productive of great injustice, to permit them to be sprung for the first time in the Appellate Court. Beekman v. Frost, 18 John. R. 544; Brockenbrough v. Blythe, 3 Leigh 619; Dickenson v. Davis, 2 Leigh 401.
    “As to the sufficiency of the evidence, in the absence of any exception to the various items on account of the defect of proof, and indeed, in the absence of the proofs and vouchers themselves, except so far as they are sustained by or consist in the statements of witnesses certified in the record, this Court cannot undertake to say that the evidence was insufficient, or reverse the decree upon that ground.
    “ It is, however, specially objected, that the decree is erroneous in not allowing for the board and clothing of the widow and the appellee; but the commissioner assigns as a reason for rejecting various credits claimed by the appellant of a similar character, the omission of the appellant to render any account of the crops, rents and hires. In consequence of which omission, the commissioner felt himself bound to resort to proofs shewing the net annual income of the estate, and to rest his report upon that basis. It is not, I think, for the party whose duty it was to furnish a full and true account, to make the objection just stated, and, so far as appears, to raise that objection also for the first time in this Court.
    “ It is further objected, that the bill of the appellee ought to have been dismissed, in consequence of his long delay and acquiescence. Looking to the omission of the appellant to render a full and satisfactory account prior to the institution of the suit, the admission that the suit was brought several years after the arrival of the plaintiff to full age, and the submission in the answer to account, this Court cannot perceive any weight in the suggestion now made, that the bill ought to have been dismissed on account of the lapse of time, which was not relied upon below as a bar to relief.
    “ The only remaining objection urged by the appellant, is, that the decree was manifestly erroneous in charging her personally with the balance due from her intestate, without any account or evidence shewing assets of the intestate in her hands; and this objection appears to me to be insuperable. Hite v. Paul, 2 Munf. 154.
    “ The claim of the plaintiff was against the estate of Thomas Dunn the elder, for assets unaccounted for by him, belonging to the estate of Lewis Dunn, of which Thomas Dunn the elder, was co-administrator. The decree is, that the appellant, the administratrix [and her husband] pay to the plaintiff the balance reported as due from her intestate, Thomas Dunn, to the estate. This is obviously a personal decree, and must proceed upon the assumption that the appellant had sufficient assets of her intestate. But there is no allegation to that effect in the bill, no admission in the answer, no account or evidence in the record whatever to warrant such a conclusion. I think the decree in this particular clearly erroneous. But the reversal will only be co-extensive with the error, and propose a correction of that error by directing an account, if desired by the appellant, of the administration of the appellant and her husband upon the estate of Thomas Dunn the elder. The report, so far as respects the balance thereby ascertained as due from Thomas Dunn the elder to Lewis Dunn, . . ought not, I think, to be disturbed. Two reasons are su§gested by the appellant’s counsel, in addition to those specially assigned and already considered, for setting aside that report:
    “ 1st. It is said that the settled account of T. Dunn's administration, mentioned in the bill and answer, was never filed.
    “I do not perceive the proof of the assertion. It is true that it is not in the transcript recently brought up; neither are any of the documents which were laid before the commissioner. This, therefore, might have been among them ; or if not, it could only have been because neither of the parties nor the commissioner thought it necessary.
    “ 2d. It is said there were exceptions to the commissioner’s report, but they are not now found on file.
    
      “ There is nothing to shew whether these exceptions were lost before or since the appeal; and I do not think it would be just, twenty years after the decree of the County Court, and seventeen years after the general order of recommitment made in this Court, to deprive the appellee of the benefit of his decree substantially overruling those exceptions, and at the instance of the party who has so long failed to have that order carried into effect, to open an account of transactions, ranging from 1785 to 1794; from fifty to nearly sixty years back, of which it is hopeless now to expect a satisfactory settlement — in a case, too, where the very files of both Courts are proved to be in part lost or destroyed. Hayes v. Goode, 7 Leigh 452.
    “ As a general rule, laches pending a suit is no bar to relief. In such cases, most usually, there is neglect on both sides, since it is always in the power of a diligent party to obtain the aid of the Court in compelling his adversary duly to prosecute or defend the suit; nor does the Court in this case deny relief. It will be afforded by the reversal of the decree for error in subjecting the appellant personally for a debt of her intestate’s estate, without proof or admission of assets, and by an order directing the settlement of her administration account.
    “ But there are some limits to the doctrine that laches in the prosecution of a suit may not deprive a party of remedies to which due diligence might have entitled him. Among the rules for regulating the business of this Court is one, declaring that a party may lose the benefit of an order by unreasonable delay on his part to carry it into effect; and the propriety of the rule is itself sanctioned by the doctrine of the Court of Appeals in the case of Hayes v. Goode, 7 Leigh 452. A just application of the rule and doctrine seems to require that the general order of recommitment just set aside at the instance of the appellant, should not now be renewed, nor any order made to open the accounts of Thomas Dunn’s administration on Lewis Dunn’s estate. That administrator, during his life, neglected to settle any account whatever. The appellant and her husband, whose duty it was by law, and under the order of the Court, to make out an account of their intestate’s administration, rendered one, admitted to have been unsatisfactory, which seems indeed never to have been recorded, but which was successfully surcharged and falsified by the appellee in a suit instituted against them, and on which they had, it is to be presumed, every opportunity of a full defence. They did not then rely on the former account rendered by them as conclusive, but submitted to account de novo. They did not in the Court below, nor do they here, make good any special or just exception to the commissioner’s report; and if it were now proved to be unjust, it is quite probable, in consequence of the lapse of time since the date of the transactions it embraces, and the appellant’s neglect, if not entire abandonment, of the case f°r many years past, that another attempt to settle the account would be productive of still greater injustice than is done by the aceouut complained of,
    “Under such circumstances the Court, deprived of the power of bringing about a just settlement of the accounts in question, must leave the injury, if any, under the report complained of, to be borne by the appellant, whose original default it was that a just and true account was not long ago rendered, rather than harass the appellee with a new litigation, likely to effect as great or greater injury to him. These remarks, however, do not apply to the recommitment of the report with a view to settle the administration account of the appellant and her husband on the estate of Thomas Dunn; that account was indispensable before any decree, such as that in this case could be pronounced; nor does the same difficulty present itself of lapse of time. The order should be, considering the decree of the County Court as impliedly and substantially confirming the commissioner’s report, so far as it ascertains the balance due from the estate of Thomas Dunn the elder, to that of Lewis Dunn, to affirm the County Court decree to that extent, and to reverse it as premature, so far as it charges the appellant personally with that balance, without any account or admission, shewing assets in her hands. The cause will be retained in this Court, and a further order entered, directing a settlement of the administration by the appellant, separately or in conjunction with her husband, on the estate of Thomas Dunn, and an administration account on her own estate and that of her husband, if required.”
    The decree in the case of Wills'’ adm’r v. Dunn’s adm’r, was, that the decree of the County Court of Sussex be reversed, so far as it charged Lucy Wills personally with the balance ascertained to be due from the estate of Thomas Dunn the elder, to the estate of 
      Lewis Dunn, without an account or admission shewing assets of the estate of Thomas Dunn the elder, in the hands of the said Lucy Wills, sufficient to discharge such balance or any part thereof, and that in all other respects it be affirmed. And one of the commissioners of the Court was directed to take an account of said Lucy Wills’ and William Wills’ administration of the estate of Thomas Dunn the elder, and an account of the administration of the estate of Lucy Wills by her administrator.
    In the case of Mason’s adm’rs v. Dunn’s adm’r and others, the Court being of opinion, that notwithstanding the partial reversal of the decree in the case of Wills v. Dunn, the plaintiffs were not entitled to relief against Thomas Dunn the younger, or his representative, upon the ground that Lucy Wills had not received assets of the estate of Thomas Dunn the elder, sufficient to satisfy the decree of the County Court of Sussex, because they did not ask, nor upon the case made in their bill, were they entitled to ask such relief, dissolved the injunction and dismissed the bill as to the administrator of Thomas Dunn the younger, with costs. From these decrees, the administrator of Lucy Wills and Mason’s adrn'rs applied to this Court for appeals, which were allowed.
    
      G. N. Johnson, for the appellants, in both cases.
    If the debt reported to be due from Wills and wife was not due, the Masons, who are ouly bound as sureties of Mrs. Wills, are entitled to relief: They should not be compelled to pay so much as they have not yet paid, and are entitled to recover back what they have paid.
    It is well settled in this Court, that money paid under a decree which is afterwards reversed, may be recovered back. In a late case decided here, it was allowed to be recovered by a summary process. Flemings v. Rid-
      
      dick's ex'or, supra, 272. And the recovery may be also by action for money had and received. Caperton v. M'Corkle & Adams, supra, 177; Clarke v. Penney, 6 Cow. R. 299; Sturges v. Allis, 10 Wend. R. 354; Green v. Stone, 1 Har. & John. 405.
    If the simple object had been to recover back the money which has been paid by the Masons, that might have been attained by an action at law. But the bill was necessary to enjoin the proceeding to recover the money not yet paid ; and besides, the decree had not been reversed, though proceedings were in progress for the purpose of reversing it; and it was proper that both cases should be before the same Court, that the burden might be at once put upon the parties who ought to bear it.
    The Court below, by its decree in Masons v. Dunn, has denied to them all relief against Thomas Dunn the younger, though it reversed the decree in Wills v. Dunn, so far as that was a personal decree against Wills and wife. Now the Masons were especially interested in this branch of the decree, because they were only liable for assets wasted by Wills and wife; and if the account was necessary to ascertain the liability of their principals, it must have been equally so to ascertain the liability of the sureties; as the sureties of an administrator are only responsible for a proper application of the assets of the estate.
    But there were other errors in the decree of the . County Court of Sussex against Wills and wife. The first two errors assigned will be considered together. That the administrators of Nathaniel Dunn, and of the widow of Lewis Dunn, were proper parties, cannot be questioned. The first, though made a party by the bill, seems not to have been served with process, or brought before the Court; and the only excuse for this is that he had but little to do with the administration of Lewis Dunn's estate. But there is no proof that he had nothing to do with it. This was an old transaction when the suit was brought, and therefore it was necessary that this administrator should have been made a party that he might aid in the defence: and no oue can say what light might have been thrown upon the subject by the answer of that administrator, and the papers of Nathaniel Dunn. It was moreover a joint administration, and both were liable in the absence of proof that Nathaniel Dunn did not take the estate into his possession.
    This is a suit by a distributee, and Mrs. Dunn, the other distributee, should have been a party. Hooper v. Royster, 1 Munf. 119; Richardson v. Hunt, 2 Id. 148; Sheppard's ex'or v. Starke and wife, 3 Id. 29; Purcell v. Maddox, Id. 79; Moore's adm’r v. George's adm’r, 10 Leigh 228. The bill shews that she should have been a party. It shews that a previous suit had been brought by her husband and herself against Thomas Dunn the elder in his lifetime, and that he answered shewing an administration then almost completed, and the disbursement of all the personal estate except the slaves.
    The third error assigned is, that the account wras taken without authority; and the answer which we receive to it is, that we have not suggested a diminution of the record, and asked for a certiorari. We are content with the record as it is. We say that there does not appear to have been an order for an account. If the other party believed there was such an order, it was for them to ask for the certiorari.
    
    The evidence on which the account was based was not legal evidence, being wholly unauthenticated ; and although there are now no exceptions in the record, yet the decree of the County Court shews that exceptions had been filed ; and the Chancery Court, which has original as well as appellate jurisdiction, should have allowed exceptions to be filed there ; or, what would have amounted to the same thing, should have taken the errors assigned in the petition of appeal as exceptions. ... . . . . , And as it was apparent that the commissioner acted without authority, the Chancellor should have directed another account if he did not dismiss the bill.
    Upon the legal proofs in the cause, there is no reason to doubt that all the personal estate of Lewis Dunn was exhausted in the payment of debts. The plaintiff filed with his bill the answer of Thomas Dunn the elder to the bill of Heath and wife, with the inventory of the estate, and the account stated by him; which shew that all the personal estate, except slaves, had been exhausted in payment of debts. As to the real estate, he held that not as administrator, but as bailiff of the widow and child; and the profits of that were expended in part in the payment of debts, and the balance in their support. The witnesses on whose testimony the commissioner has made out his account, speak of the crops, and express the opinion that they amounted to more than the expenses of the estate; but they say nothing of the expeuse of supporting the widow and the plaintiff.
    The bill should have been dismissed, because of the delay in bringing the suit and the circumstances of the case. The transactions took place between 1785 and 1794. In this last year the land and slaves were delivered over to the plaintiff’s guardian. Thomas Dunn the elder had been dead many years. His administratrix, and her husband, were ignorant of all the facts in relation to his administration of Lewis Dunn's estate, and were unable to render an account. It is true, they, in their answer, do not object to an account, if a just account can be made out from the papers of their intestate. Upon that answer, it may have been proper to make the experiment whether an account could be stated; and in making that experiment, the Court should have directed that the account returned by Wills and wife to the County Court of Sussex should be taken as 
      prima facie correct; and that the books and papers of Thomas Dunn the elder, should be laid before the commissioner. Then, when the report was returned, the Court conld have seen whether an account could be stated. This was the course pursued in the case of Caruthers’ adm’rs v. The Trustees of Lexington, 12 Leigh 610. But, beyond all doubt, the account taken in this cause, is based upon conjecture. The commissioner, from what he has heard, supposes the net profits of the estate were about 150 dollars a year. It is doubtful, indeed, if there were any net profits; but if there were, how can this Court undertake to say that these net profits were more than sufficient to pay the debts of the estate and the expenses of the widow and child.
    Equity has jurisdiction to relieve the appellants in the case of Masons v. Dunn. Crawford v. Thurmond, 3 Leigh 85; Callaway v. Alexander, 8 Id. 114; Mason v. Nelson, 11 Id. 227.
    
      Stanard, for the appellee,
    in the case of Mason’s adm’rs v. Dunn’s adm’r.
    
    Whatever may be the merits or demerits of the case of Wills v. Dunn, and though the decree in that case may be clearly erroneous, the appellants, the Masons, nevertheless, can have no title to be relieved from their bond, or to reverse the decree dismissing their bill. Let it be considered that the execution of their bonds by the Masons to Thomas Dunn the younger, was a payment in satisfaction of the judgment recovered against them. If the payment was compulsory, then, as there was no fraud, the money cannot be recovered back in an action for money had and received upon the occurrence of after circumstances, shewing that it ought not to have been paid. Marriatt v. Hampton, 7 T. R. 269; Hamlet v. Richardson, 23 Eng. C. L. R. 407; Wilson v. Ray, 37 Id. 50. The principle which runs through all the cases, is, that where there is no fraud or coucealment, and the party pays the money with a full know-lodge of the facts, he cannot recover it back, whether it is paid under compulsion of legal process or not. It is 01 true that in the case of Cadoval v. Collins, 31 Eng. C. L. R. 206, the plaintiff was allowed to recover back money paid under compulsion of legal process; but the reason was, that the legal process was but colourable; and the jury found that the defendant knew he had no right to receive the money from the plaintiff. But in that case the general principle was recognized by all the Judges. In our case, there is no fraud, and no colourable process. The party sues an administratrix who has not settled her accounts, and has an account and decree. There is then a suit on the administration bond, and a judgment, without pretence of fraud.
    It is said that money paid under a judgment, which is afterwards reversed, may be recovered back in an action for money had and received. It is true that this doctrine is authorized by the case of Clarke v. Penney, 6 Cow. 299. But that case was decided on the authority of Green v. Stone, 1 Har. & Johns. 405, which is the judgment of an inferior Court; and the other case cited from New York is based on Clarke v. Penney. The question was made by counsel in Isom v. Johns, 2 Munf. 272, but was not decided.
    The proper remedy where money has been recovered upon a judgment which was afterwards reversed, is not by an action for money had and received, but by application to the Court which gave the judgment, for restitution. If the action for money had and received lies in such cases, it must be on the ground that it was recovered under colourable legal process.
    This right to recover back money paid under a judgment which has been reversed, is confined to the parties to the judgment, and cannot be extended to others; and certainly not to parties who have paid money under a judgment which is not only not reversed, but is irreversible: And such is this case. The true ground on which the right rests, is only applicable to the parties to the judgment reversed. That ground is, that the proceedings are ascertained by the result to have been merely colourable; and the Court, under its power to superintend and correct its proceedings, repairs the error into which it had fallen, by restoring the money which has been wrongfully paid.
    In this case the reversal of the decree in the case of Wills v. Dunn, is not a reversal of the judgment under which the money was paid. These parties are not affected by that decree. At most, it is only evideuce against them ; but they are not bound by it. And they are seeking to recover back money paid upon a judgment which is unreversed, because a part, and only a part, of the evidence on which it was founded is proved not to be correct. But if the decree had been the only evidence on which the judgment was founded, still the case cannot be distinguished from Marriatt v. Hampton, and that class of cases.
    Treating this case, then, as a payment by compulsion of legal process, upon the principles of the cases cited, the money cannot be recovered back.
    But in fact this was a voluntary settlement, by which these parties did not pay or undertake to pay the whole amount of the judgment; but they gave their bonds upon a compromise of the claim, for the amount of the decree, minus an error supposed to exist in it. That error was the charge of six per cent, per annum interest, instead of five per cent, from 1797 to 1824, for which a credit was given on the bonds. It was a payment voluntarily made, with full knowledge of the facts; and if it was made under any mistake whatever, it was a mistake as to the legal liability growing out of the facts. On this subject the Court is referred to Brisbane v. Dacres, 5 Taunt. R. 144; Clarke v. Dulcher, 9 Cow. R. 674; Mayor, &c. v. Judah, 5 Leigh 305.
    
      The objections to the decree in the case of Wills v. Dunn, are answered successfully by the Chancellor in his opinion. As to the objection that Nathaniel Dunn’s representative was not a party, the bill states that he died soon after his qualification as administrator of Lewis Dunn; and the commissioner, in his report, states that Thomas Dunn the elder' took possession of the whole estate early in 1785, which must have been itnmediately on the death of Lewis Dunn. And if the administrator of Nathaniel Dunn liad been before the Court, all that could have been done as to him was to dismiss the bill.
    The widow of Lewis Dunn had been dead many years; and if any thing more than what appears in this record was necessary to shew the futility of the objection to the failure to make her administrator a party, it will be found in the authorities referred to on the other side, especially the case of Moore’s adm’r v. George’s adm’r, 10 Leigh 228.
    That was the case of a suit by a distributee, as this is; and there the objection for want of parties was overruled.
    It is objected that the report was made without authority. This objection should be made out by the party making it. But it appears affirmatively that it was made by authority. The commissioner so states the fact, and he is a sworn officer of the Court; and the Court so states it in the decree. If then the order for account could not now be found, yet all the parties and the Court having acted as if the order had been made, this Appellate Court will not reverse the decree, because it cannot now be produced.
    It is objected that the report is ex parte. But there cannot be an ex parte report in a pending cause. It may be without notice, but it cannot be ex parte. If by the objection it was meant that the report was made without notice, that is a matter for exception, and should have been made to the Court below. 2 Rob. Pr. 362.
    
      It does not appear that any of the evidence or vouchers which were before the commissioner was returned with the report; and the reason was that no exceptions to the report were filed in his office. The only evideuce that exceptions were ever filed, is the recital in the decree. That does not state what those exceptions were, or by whom they were filed; and the clerk of the County Court of Sussex certifies that there were no exceptions in his office. Now this Court must decide the cause upon the record; and must presume that the decree of the Court below is right until it is shewn to be wrong.
    It is said that the exceptions having been lost, the Chancery Court might have allowed exceptions to be filed there; or should have considered the errors assigned in the petition for an appeal as exceptions. These exceptions were lost, if they ever existed, before the appeal. After the appeal an order was made in the Chancery Court in 1826, referring the accounts to a commissioner; yet from that time to 1843, no proof of the loss of the exceptions or what they were was produced; and no steps were taken to have the account settled anew. Then, as a matter of law, not of discretion, could the Court say that the errors assigned in the petition for an appeal should stand as exceptions to the report, upon the presumption that the exceptions were taken by the appellant and were lost?
    It is true that on appeals from the County Court, the Chancery Court has original as well as appellate jurisdiction for some purposes. But its original jurisdiction only commences after it has reversed the final decree of the County Court, whilst, in this case, it is insisted that the original jurisdiction should have been assumed to prepare the cause for a hearing upon the decree. 1 Rev. Code, ch. 66, $ 56, p. 207.
    The conclusive answer to the sixth error assigned is, that there was no exception to the report "on the ground therein stated; and, therefore, the objection cannot be taken here.
    As to the objection on the ground of lapse of time, it appears that the bill was certainly filed as early as 1819. It is a bill to have a settlement of an intestate’s estate which had never been settled by the administrator. The plaintiff was a mere infant at the death of his father in 1785. It is said his guardian should have sued for a settlement of the administrator’s account. If this was the guardian’s duty, he failed to discharge it; and then the argument is, that the failure of the guardian to discharge his duty will protect the administrator, who has wholly failed to render an account as he was bound by law to do.
    But laches was not relied on in the County Court as an objection to the bill. On the contrary, the defendants submitted to an account in their answer: And after doing this, the objection cannot be taken in the Appellate Court. If the objection had been made in the County Court, the plaintiff might have accounted for the delay by proofs; and this Court will not permit him to be entrapped and turned out of Court, by an objection taken for the first time in the Appellate Court, which if taken at the proper time might have been successfully repelled.
    The eighth error assigned was sustained by the Chancellor, and the decree of the County Court was in that respect corrected. That is therefore no cause for reversing the decree in Wills v. Dunn. But it is said it is cause for reversing the decree in Masons v. Dunn. These parties in their bill charge that there were sufficient assets of Thomas Dunn's estate to satisfy the decree, which had been paid over by Wills and wife to the distributees of Thomas Dunn the elder; and this is abundantly proved by the evidence in the cause ; and they claim to charge the distributees on that ground.
    
      But this objection cannot be sustained for another reason. These appellants might have made this defence at law; and having failed to make it there, they cannot come into equity to make it here. The action on the administration bond could not have been sustained without charging assets and a devastavit; and the act of assembly authorizes this allegation to be contested.
   Baldwin, J.

delivered the opinion of the Court.

Wills’ adm’r v. Dunn's adm’r.

The Court is of opinion, that the decree of the County Court is erroneous, so far as it charges Lucy Wills personally, with the balance ascertained to be due from the estate of Thomas Dunn the elder to the estate of Lewis Dunn, without any account or admission shewing assets of the estate of the said Thomas Dunn the elder, in the hands of the said Lucy Wills, sufficient to discharge and satisfy said balance, or any part thereof; and therefore that there is no error in so much of the decree of the Chancellor as reverses and annuls that part of the decree of the County Court, and directs certain accounts to be taken before a commissioner.

And the Court is further of opinion, that the decree of the County Court is also erroneous, in ascertaining the balance of principal and interest due from the estate of Thomas Dunn the elder to Lewis Dunn, on the 31st of December 1801, to be 1250 dollars 78 cents, and in the interest given on 790 dollars 99 cents, the principal thereof, from the 31st of December 1801, till paid; inasmuch as the said sum of 1250 dollars 78 cents, embraces interest on principal money, at the rate of six per cent, instead of only five per cent., from the 31st of December 1797, to the 31st of December 1800; and inasmuch as the interest given on the said sum of 790 dollars 99 cents, as aforesaid, is at the rate of six per cent. instead of five per cent. only. The estate of Thomas Dunn the elder was not properly chargeable with a higher rate of interest than five per cent, on any of the Principa^ moneys which came to his hands, inasmuch as the whole of the debit against him accrued prior to the 1st of May 1797, when the act of 1796, changing the rate of interest, took effect. The impropriety of charging any interest at the rate of six per cent, appeared on the face of the commissioner’s report, which formed the basis of the decree, and could not have been repelled by any extrinsic evidence; and the County Court ought to have corrected the erroneous views of the commissioner on that subject.

And the Court is further of opinion, that the decree of the County Court is erroneous, to the prejudice of the appellees, in failing to allow interest at all against the estate of Thomas Dunn the elder, on the sum of 797 dollars 31 cents, from the 31st of December 1800, to the 31st of December 1801; in which respect it improperly disregarded the said report of the commissioner.

The Court is therefore of opinion, that the decree of the Chancellor is erroneous in affirming, instead of reversing, so much of the decree of the County Court as allows interest at the rate of six per cent, instead of five per cent., as above mentioned ; and also so much thereof as fails to allow interest at all from the 31st of December 1800, to the 31st of December 1801, as above mentioned.

And the Court is further of opinion, for reasons assigned in the written opinion of the Chancellor, that there is no error in his decree, except as above designated.

It is therefore decreed and ordered, that so much of the decree of the Chancery Court as is above declared to be erroneous, be reversed and annulled, with costs to the appellants; and that the residue of that decree be affirmed; and the cause is remanded to the Chancery Court for the correction of the decree of the County Court, as above indicated, and for further proceedings according to the principles above declared.

Mason’s ex’or & als. v. Dunn’s adm’r.

It appears to the Court, that the equity asserted in the bill of the appellants was founded upon the supposed errors, to the prejudice of the estate of Thomas Dunn the elder, in the decree of the County Court of Sussex, in the proceedings mentioned ; and the relief sought by said bill was contingent upon the expected reversal of that decree for such errors, upon the appeal taken therefrom by the administrator of Lucy Wills, who was administratrix of the said Thomas Dunn the elder, and by the administrator de bonis non of the latter: And that now the result of the Chancellor’s decision upon said appeal, and of the decision of this .Court upon the appeal from his decree, is to affirm the decree of the County Court of Sussex, with the following exceptions, to wit: 1. So much of that decree is reversed as gave interest, against the estate of said Thomas Dunn the elder, at the rate of six per cent, instead of five per cent, only, subject to the correction of an error in regard to interest, favourable to that estate. 2. So much of that decree is also reversed, as charged Lucy Wills personally with the balance ascertained to be due from the estate of Thomas Dunn the elder to the estate of Lewis Dunn, without any account or admission shewing assets of the estate of the said Thomas Dunn the elder in the hands of the said Lucy Wills, sufficient to discharge and satisfy the said balance, or any part thereof. But these grounds of reversal give no support to the equity asserted by the bill of the appellants in this case; for, in regard to the first, the amount of the error, so far as prejudicial to them, was corrected in the adjustment in the proceedings mentioned, of the judgment at law against the sureties in the administration bond; and in regard to the second, the sufficiency of the assets was determined by the said judgment, and is not denied in the bill of the appellants, which seeks relief only upon the ground of errors in the said decree °f the County Court of Sussex, to the prejudice of the estate of the said Thomas Dunn the elder.

It is therefore unnecessary for the Court to consider whether the appellants would have been entitled to relief against the said adjustment of the judgment upon the administration bond, if the decree of the said County Court had been reversed for errors other than those above specified.

The Court is therefore of opinion, that there is no error in the decree of the Chancery Court; and it is decreed and ordered that the same be affirmed, with (ppsts to the appellees.  