
    Newton Wood and Tabitha his wife, and Penelope E. Putney v. Daniel L. Barringer, executor of Henry Moring.
    From Wake.
    A settlement made by ati administrator, with commissioners appointed by a a order oí'the Comity Court, is in no way binding «pon the next of kin.
    "Where negroes were specifically bequeathed, and the share of one 33 set apart, and a profit is made by the administrator on another share belonging to an infant, this is no severance of the tenancy in common, and this profit may be recovered by the infant, in a joint bill for an account filed by all the legatees.
    The bill which was filed in August, 1823, alleged that Richard Putney died In Use year 1814, having made bis will, whereby lie devised his property equally, to his wife, the Plaintiff Tabitha, and his daughter, the Plaintiff Penelope. That upon the renunciation of the executors, administration with the will annexed, was committed to Hairy Moring, who possessed himself of the personal property belonging to Putney, consisting of ne-groes and other chatties — -all of which, except the slaves, he converted to his own use. That the negroes were hired oat by the administrator for several years, “ after which, lie divided them according to the will.” That the 'Defendants Mvjion and TaMiha had intermarried, and that the former had been appointed guardian to the Plaintiff Penelope, who was still an infant. That Moving was dead, having appointed the Defendant his executor, and prayed an account and payment of the legacies.
    The Defendant by his answer, denied any appropriation of the estate by his testator, to his own use, and in-aisiod that it had been properly administered. Farther, that his testator in his lifetime, had made a settlement of kb accounts as administrator, with three commissioners appointed by the County Court- — that the Plaintiff Wood 
      Was present when that settlement was made, and attended to it on his own account, and as guardian for the Plaintiff Penelope, and submitted whether the Plaintiffs were not barred in this suit, by that settlement.
    On the coming in of the answer, it was referred to the Master to take an account, without prejudice, to the matter of defence insisted on in the answer.
    The Master reported a larger balance due the Plaintiffs than that ascertained by the account taken before the commissioners. That the negroes belonging to the estate were divided in December, 1818 — that the administrator had hired out those belonging to the Plaintiff Penelope, during the year 1819, and had never accounted for the hire. The Defendant excepted to the report, because the Master “charged the Defendant with the hire' of the negroes belonging to the Plaintiff Penelope, for the year 1819, when he ought to have rejected all evidence thereof, as it was not claimed in the bill, or included within its allegations.” By consent, the cause was heard upon the defence set up in the answer, and also upon the exceptions.
    
      JDevereux, for the Defendant, contended,
    1st. That the account taken under the order of the County Court was conclusive upon the Plaintiff, except in a bill pointing out errors in that account, and seeking to surcharge and falsify, (Everlson v. Tappen, 5 Jolmsi Ch. Pep. 511).
    2d- That the hire of the negroes for the year 1819, appeared only in the proofs, and was not alleged in the pleadings. But on the contrary, was against a strong implication resulting from the bill, which charged only for hire received before the division — and that the Plaintiffs could only recover upon the allegata et probata.
    
    3d. That the division made in the year 1818, was a severance of the tenany in common, and that the right to the hire for the year 1819, being a separate right in the daughter, could not be asserted in a joint suit with the other Plaintiffs ; regularly this is a cause of demurrer, but as the fact only appeared on the proofs, the Defendant should have all advantage thereof at the hearing, (Harrison v. Hogg, 2 Ves. jr. 323 — Mtorney-General v. The Corporation Carmarthen, Coopers Eo. Itep. 30).
    
      Badger & W. II. Haywood, for the Plaintiffs,
    as to the first point, was stopped by the Court — as to the second, they said the hire of 1819 was included in the bill, which was for an account, and this but one item thereof, and not a matter required to be specially stated.
    They insisted that the division was not complete, until the Plaintiff Penelope came of fall age and sanctioned it, and therefore the hire of 1819, was a joint right in the Plaintiff.
   Henderson, Judge,

— .Whatever may be the character of the statement which the Defendant calls a settled account, it certainly is not such a statement or settlement, as precludes a bill for an account, and drives the Plaintiffs to a bill to surcharge and falsify. It may, and possibly should have some weight in taking the account, particularly where the person who stated it, as in the present case, is dead. It is not a stated account, because the adverse parties, had no compulsory process to compel the attendance of witnesses, or any right to controvert it. All that was conceded to them, veas a mere matter of courtesy, including notice, for it appears that they were present; but whether they had notice in time to prepare for an investigation does not appear. The principal objection however is, that they were not parties, and therefore could not compel the attendance of wit-nessés. Nor does it appear that the account had been rendered to them before-hand, so as to enable them to inform themselves of its correctness.

It is next objected, that the hire of the negroes for the year 1819, ought not to be included; first, because it Is not within the charges in the bill: and secondly, if it is, it arose after the union of interests in the Plaintiffs had ceased. .

As to the first point, I think it is within the charges of the bill. The bill calls for an account, until the division and delivery over of the slaves — for I must so understand it.. The allotment of the negroes between the mother and daughter, was made at the close of the year 1818, and the first part allotted to the mother, delivered toher; the Defendant retained the daughter's share a year longer, as I understand the bill, in connection with the proofs ; for it is not stated when that was delivered. The bill therefore contains a charge for 1819. As to the second point, viz. that the. bill is multifarious, asserting a separate interest in the daughter (after the division) in a joint suit with the mother. This I think is incorrect in point of fact. They had a common interest before the close of the year 1818, which continued until the division was ratified by the daughter.

Notwithstanding the delivery to the mother, the mother and the daughter both retained their rights in the whole, until the daughter ratified the division ; for the consideration that the mother surrendered her claim to those allotted to the daughter, was the ratification of the allotment made to the mother. So that in strictness, ike property remained in common until the division became binding on both, as it could not bind one, unless it bound both.

The Defendant is liable to pay full hire for the year 1819, for his intestate, when rendering his account, failed to include it — and even under these circumstances, I think the hire very high. Yet as it is according to the evidence filed, and we have no data by which to correct it, and to reduce it, we must refer the matter again to the Master, who with the same evidence \VouId make the same report, it must be submitted to with reluctance. 4 We would correct it; but the remedy might be worse than the disease.

Per Curiam.

— Let the exceptions be overruled and decree for the Plaintiffs.  