
    Thomas P. Falconer, and Others, v. E. Powe, Administrator of William Falconer.
    An administrator, being in advance to the estate, for several successive • years, and being indebted, by bond to the commisfioner, for the purchase money of land of the intestate, which had been sold for partition, consented, upon a bill by the distributees for an account of his administration, that his bond should be brought into the account. Held, that he was not intitled to a separate account for interest, on the annual balances in his favor, up to the time of accounting for his administration ; but that his advances for the estate, were to be applied, as they were made, first to the payment of the interest, and then of the principal of the bond, pro tanto, as in cases of discount. The Court, upon a bill properly framed, would have ordered such discount, independently of the consent of the defendant.
    Equity will enforce a discount of mutual demands between the parties really interested, although the demands are not in the same legal right, and therefore could not be set up in discount at law.
    Before De Saussure, Chancellor, at Cheraw, February, 1830.
    This was a bill by the distributees, for an account of the defendant’s administration of the estate of his intestate. The defendant bad, from time to time, advanced sundry sums of money, over and above the assets which came to his hands, for the payment of debts due by his intestate, and for the support and education of his children, the present complainants. He was, however, indebted, by his bond to the commissioner, for the purchase money of land of his intestate, which had been sold by order of Court, for partition; and the complainants, being the heirs at law of the intestate, were intitled to the money due on this bond. The bond was dated the 10th of June 1811, and the condition was for the payment of $2,600, with interest, from the 1st of January, 1812, in three equal instalments, payable respectively, on the 1st of January, 1814,1815, and 1816. The defendant consented that the amount due by him, on this bond, should be brought into the account prayed by the bill, and an account was ordered accordingly, to be stated by the commissioner.
    On taking the account, it appeared, that the defendant was in ad. vanee to the estate, as administrator, in the year 1817, $1,125.06, in the year 1818, $374.76, and in the year 1824, $945.47 ; and he claimed interest on these annual balances, to be computed from the end of each year, respectively, to the time of taking the account. The commissioner, however, applied the sums advanced by the defendant to the payment, first of the interest, and then of the prin. cipal sum, due on his bond, at the time when the advances were respectively made; and stated the account accordingly in his report. The defendant excepted to the report, on that ground; but the exception was overruled, and the report confirmed by the decree of the Chancellor.
    The defendant appealed, and now moved to reform the decree, and account, conformably to the exception, on the ground : that the demands in this case were, not'in the same right, and therefore not the subject of discount; and that the defendant’s consent to bring the amount due on the bond, into the account, did not debar him of the right to claim interest on the annual balances due him, in the same manner, as if he had insisted on leaving the parties to their remedy at law upon the bond, by an action in the name of the com. missioner.
    Ervin, for the motion.
    Branding, contra.
    
   O’Neall, J.

In this case, we are satisfied, that the commissioner has pursued the proper course, in applying the sums, which the defendant had advanced for his intestate’s estate, in the years 1817, 1818, and 1824, as payments upon the defendant’s bond.

It is true, that the bond formed no part of the defendant’s account, as administrator ; and he might, if he had thought proper, have compelled the complainants to amend their bill, so as to bring all parties, legally interested in the bond, before the Court: but having consented to bring the amount due upon it, into the account before the commissioner, he must abide by that consent; and we consider that debt as now standing, in the account, precisely upon the same footing, as if the complainants had called upon the Court, to compel the defendant to permit his advances for the estate to be considered as payments on his bond.

If this claim bad been made, by a bill properly framed, with all necessary parties, the Court would not have hesitated to have so ordered. For it was the duty of the defendant to have paid his bond t0 l^e commissioner, as the instalments became due; and if he had not funds of the personal estate, sufficient to meet the exigencies of the estate, it was his duty to have applied to the Court, for a part of the proceeds of the real estate, sufficient for this purpose. Being himself the purchaser of the real estate, and at the same time, administrator, he has paid the demands on the estate, out of his own funds ; and the simple question is, whether this ought not to be regarded as a payment, pro tanto, of his bond for the purchase money of the real estate. It is unquestionable that it ought. It is a performance of his duty, without the intervention of the Court. .

Act of 1759, p. h. 2á6.

It is true, that at law these payments could not have been set up in discount; for the demands would not have been in the same right, nor even between the same parties. There, the defendant must have been sued in his own right, and not as administrator; and the commissioner, and not the present complainants, must have been plaintiff. But in this Court, we look to the parties really in terested. The complainants, are the pe.rsons to whom the proceeds of the bond belong; and the advances made by the defendant were for their benefit. It is, therefore, a clear case of mutual demands, existing in equity, between the parties to the suit; and they are to be adjusted in the same way as in other cases of discount.

The Chancellor’s decree, confirming the report of the commissioner, is therefore affirmed.

Harper, J., concurred.

Johnson, J., absent from indisposition.

Decree affirmed.  