
    Richardson’s Adm’x. vs. Stansbury.
    A R, J II anti B S, weie n the will of A M constituted his exei-utns, and they obtained joint letters tetnnenta-ryon tmes ate» An account was set led w.th the orphans court, and a corn-missioned 7 1-2 p e. allowed to the executors. which sum was retained bj A R, who n fused to p-iy unj parr <luue-of to D S, u .on he grown- that tht bu* smeas >f ihe achni-nist.atumoi the estate of A M was done and transacted by him on y In an action lor money had and leceived, brought by i) S against A K — '/IeW, ihat D S entitled to retowr,:«rul that the jury ought not io mala any abatement ivom ins demand because of A K’¡> having: miic-iy done and trails-¡lend the business oí the administra,-
    Appeal from Baltimore County Court. This was an action of assumpsit for money had and received. The general issue was pleaded. In the trial the plaintiff, (now appellee,) gave evidence that A (juila Miles, late of Balti •more county, deceased, appointed by his last will and testament Arnold Richardson, (the intestate ofthe defendant, the appellant,) John Hutchins and Dixon Stansbury, (the plaintiff,) executors of the said will; and that the sai A Richardson, Hutchins and Stansbury. took out joint letters testamentary on the said estate. The plaintiff also read in evidence the following administration accounts on (he estate of the said Miles, rendered to the orphans court of Baltimore county, to wit: The 1st account, viz.
    Payments and disbursements, §16,419 92
    Balance due the estate, 1,859 7 i
    Estate accounted for, 65
    Additional account — Balance former acc’t. §1,859 71 Receipts, 254 07
    S3, LIS 78
    Payments and disbursements, §987 92 Commission to executors on §18,533 70 at 7k p- c. 1,390 02
    2,377 94
    Estufe overpaid, §264 l6
    
      The plaintiff further gave evidence, that at the time of rendering the said account to .the orphans court, there remained in the hands of said Richardson the amount of. 1125 86, part of the assets of the said estate received by him in course of the administration, and retained j>y him as so much of the commission allowed by said second account, and that he refused to pay to the plaintiff any part of the said sum so retained by him, the commission so id-lowed by the orphans court on the administration of said estate. The defendant then gave in evidence, that the business of the administration of the said Miles’s estate was done and transacted by the said Richardson only. The defendant then moved the court fór their direction to the jury, that if they believe the evidence so offered, that then the plaintiff is not entitled to recover. But if they should be of opinion that the plaintiff is entitled, then to direct the jury that they may and ought, (if they believe the evidence,) abate the plaintiff’s claim, by deducting therefrom such an amount as they should believe a reasonable compensation to be made by the plaintiff to the defendant, for the said Richardson, having solely done and transacted the business of said administration. But the Court, £Bland, A. J.] refused to give either of the directions above prayed, and was of opinion, and directed the jury, that the plaintiff was entitled to recover, and that the jury ought not to make any abatement from his demand because of the said Richardson? s having solely done and transacted the business of the said administration. The defendant excepted; and the verdict and judgment being for the plaintiff) the defendant appealed to this court.
    The cause was argued before Buchanan, Johnson, and lIpKSEY, J. "
    
      Kell and R. Johnson, for the Appellant,
    pited 1 Com. on' Cont. 328. 2 Com. on Cont. 131. 3 Bac. 3b. tit. Executors, 32; and Dale vs. Sollet, 4 Burr. 2133.
    
      Winder, for Appellee.
   JUDGMENT AEEIB.MED.  