
    Joseph Massey, Administrator of George Massey, deceased, vs. Joseph D. Massey, Administrator of Benjamin Massey, deceased, John B. Cook, and Charlottte, his Wife, Henry G. Massey, John B. Massey, and William Massey, his Guardian, James H. Gilmore, and Harriet C., his Wife, and B. S. Massey, her Guardian, and Benjamin Massey, Guardian of Mary E. Massey, (now Mrs. Haigood.)
    Executors and administrators are not entitled to two and a-half per cent, in addition to ten per cent., for making interest By the Act of 1789, they are not allowed ten per cent, for letting out to interest and receiving in again, nor ton per cent for making interest, but two and a-half for letting out, and two and'a-half for taking in, until the commissions redch ten per centum, which is the maximum. [*496]
    On a bill by an administrator against a distributee and her guardian to have money refunded which was paid by mistake to the guardian more than four years before the filing of the bill, but paid over by him to the ward within that time, it was held, that the ward might protect herself by the statute of limitations, although not pleaded by the guardian, especially as the guardian had paid over all the funds received before notice of the mistake which discharged him from liability. [*49G]
    Guardian not liable for money paid to him by mistake, after he had paid it over to his ward without notice. [*496]
    An administrator who is charged with interest on an annual balances, shall not be charged with interest on the interest he has made and returned, the parly charging must elect between the methods of stating the accounts. [*497]
    George Massey died intestate, and the plaintiff, Joseph Massey, administered on his estate. The intestate, George Massey, left a widow and seven children. By his first wife he left the following children: Joseph D. Massey, Charlotte Massey, (now Mrs. Cook,) Henry G. Massey and Benjamin Massey; and by his last wife, the following : John B. Massey, (and William Massey is now his guardian,) Harriet C. Massey, (now Mrs. Gilmore, and Benjamin S. Massey was her guardian,) and Mary C. Massey, (now Mrs. Haigood, Benjamin Massey was her guardian.) In 1819, about a year after George Massey’s death, his son Benjamin died unmarried and intestate. Joseph Massey, the plaintiff, having sold the property of his intestate and collected the debts, and having also made regular annual returns of his accounts, in 1827 procured an order from the Ordinary, for partition of the estate amongst the distributees ; and by the instructions of the Ordinary, and contrary to his own impressions, after paying the widow the one-third of the estate, he paid over the remainder, including the share of the deceased child, Benjamin, to the six surviving children, in equal shares.
    *4931 *^n *832, Joseph D. Massey, a brother of the whole blood to J the deceased, Benjamin, administered on his estate, cited the plaintiff before the Ordinary, and obtained a decree against him for $1316 03, the share of Benjamin, being the one-seventh of two-thirds of his father’s estate; one-half of which the plaintiff had properly paid to the brothers and sister of the whole blood, and the other half improperly to the brothers and sisters of the half blood. Joseph D. Massey, as the administrator of Benjamin, brought his action at law against the plaintiff on the administration bond, and obtained judgment, predicated on the said decree, for the full amount thereof.
    The bill was filed in June, 1833, to enjoin the judgment at law, to obtain credit thereon for the amounts already paid by the plaintiff to the brothers and sister of the'whole blood of the said Benjamin, and which they were legally entitled to ; and to require the brothers and sisters of the half blood, and their respective guardians, to refund the sums paid them on the mistaken distribution of the estate of Benjamin.
    James H. Gilmore and wife pleaded the statute of limitations. The payment was made by the plaintiff to B. S. Massey, Mrs. Gilmore’s guardian, in 1827; and in 1831 he paid over the funds and settled in full for his guardianship, without having notice of the plaintiff’s claim. The guardian pleaded this in discharge of his liability.
    The cause came to a hearing before Chancellor De Saussure, at York, June, 1834.
    His Honor overruled the plea of the statute of limitations, and ordered, “ That it be referred to the Commissioner to examine and report what proportion was overpaid to each of the younger children, (those of the half blood,) and how much was underpaid to the elder children, (those of the whole blood,) of the estate of Benjamin Massey. It is further ordered, that the injunction previously granted by the Commissioner, be continued till the coming in of theyeport and the decision thereon.”
    In pursuance of this decree, the Commissioner held a reference and stated the accounts.
    On the reference, the plaintiff’s annual returns were in evidence, in which he made regular returns of the interest made and received by him. In his report, the Commissioner charged the plaintiff with interest on the annual balances, including interest on the interest returned The r^.. „ , principal sale bill fell due on the 28th January, 1818; the Com- L' missioner adhering to the rule that moneys received should not bear interest against the administrator in the current year, charged no interest on it until the first of January succeeding.
    The cause came on again before Chancellor Johnston, in June, 1835, on the report, and exceptions by both parties.
    Of the several exceptions, it is only necessary to notice the following :—
    By the plaintiff.
    1. That the plaintiff, having in his returns returned and accounted for the whole of the interest made and received by him, and no attempts having been made to falsify them, and no negligence imputed, he should not be charged with interest beyond that returned.
    2. That the report charges the plaintiff with interest on the interest returned, although the defendants admit, that according to their mode of charging, they are not entitled to the interest itself thus returned; and consequently cannot be allowed interest thereon.
    4. That the plaintiff should not be charged with interest on the annual balances, as he had charged himself with all the interest he made and received.
    7. That commissions are not allowed to plaintiff in the report, at two and a-half per cent, on the interest made, in addition to ten per cent, for making interest.
    By the defendants.
    2. That the Commissioner, in his report, did not charge the plaintiff with interest on $9133, (the sale bill,) from 28th January, 1819, because, in making up the accounts previously, he had commenced the annual charges on the first of January.
    So much only of the decree as relates to these exceptions is presented.
    Johnston, Chancellor. This case comes up on a report of the Commissioner, and exceptions thereto.
    The first exception of the plaintiff is, I think, founded in misconception. The interest referred to in the plaintiff’s returns, is extra interest made by renewing notes. But charging himself with this, does not exempt him from ordinary interest. The exception is overruled.
    *4.061 ^aTe *n va™ endeavored to find out the practical application J of the plaintiff’s second exception: as I cannot, I must overrule it.
    The plaintiff’s fourth exception is overruled for the reasons stated in relation to the first.
    The plaintiff’s seventh exception insists that he is entitled to two and a-half per cent, in addition to ten per cent, allowed administrators for interest. Taveau v. Ball, 1 M’Cord, Ch. Rep. 462, seems to support this construction of the act. But it appears to me to be so plain an invasion of the act, that I will give the Supreme Court another opportunity to consider the question. By the act it is provided,  not that an executor shall receive ten per cent, for letting out to interest and receiving in again, nor ten per cent, for interest he shall make for the estate; but that he shall receive two and a-half for letting out, and two and a-half for taking in, until the commission reach ten per cent, on the interest made, which is expressly declared to be the maximum. In all cases of short loans, ten per cent, on the interest made will fall short of five per cent, for letting out and taking in the capital; and therefore, as the limit is ten per cent on the interest, the operation of the act is, in all such cases, the same as if ten per cent, had been expressly given on the interest, instead of allowing commissions to that limit on the capital. The case would be very different, however, on a loan for twenty years secured by bond ; then, only five per cent, on the capital would be the commissions— falling far short of ten per cent, on the interest. The exception to the report on this point, is overruled.
    The defendants’ second exception is overruled. Harper v. Ardis, 2 Hill, 560, is against it, and governs me, although I dissent from it.
    The plaintiff appealed from the decision of Chancellor Johnston, in overruling the exceptions on his part.
    
      The defendants, Gillmore and wife, appealed from the decree of Chancellor De Saussnre, overruling their plea of the statute of limitations ;* and all the defendants appealed from the decree of Chancellor Johnson, overruling their second exception. And the defendant, B. S. Massey, the guardian of Mrs. Gilmore, appealed and now moved that the bill as to him be dismissed, on the ground'that his plea was sustained. [*496
    
      Rogers and Hill, for the plaintiff.
    
      Mills and Witherspoon, for the defendants.
    
      
       The 29th Section or the Act of 1789 (P. L. 495) is as follows: “ All and every executor or administrator shall for his, her, or their care, trouble and attendance in the execution of their several duties, take, receive or retain, in his, her, or their hands, a sum not exceeding the sum of fifty shillings for every one hundred pounds which he, she or they shall receive, and the sum of fifty shillings for every one hundred pounds which he, she or they shall pay away, in credits, debts, legacies or otherwise, during the course of their or either of their managements or administrations, and so in proportion for any sum or sums less than one hundred pounds. Provided, that no executor or administrator shall for his, her or their trouble in letting out any moneys upon interest, and again receiving the same, be entitled to take or retain any sum exceeding twenty shillings for every ten pounds, for all sums arising by moneys let out to interest, and in like proportion for a larger or lesser sum; nor shall any executors or administrators who may be creditors of any testator or intestate, or to whom any sum of money or other estate may be bequeathed, be entitled to any commissions for paying or retaining to themselves, any such debts or legacies
    
   Chancellor Johnston

delivered the opinion of the Court.

This Court is of opinion, that Jas. H. Gilmore and wife are entitled to the benefit of their plea of the act of limitations. The money now sought to be recovered from them, was paid over to Mrs. Gilmore’s guardian in 1827 ; and the bill to recover it back was not .filed until 1833. The relation between the administrator and the guardian was terminated by the payment of the money. Indeed, with respect to the excess over the ward’s share, that relation never existed. It is a simple case of money paid by mistake, and action brought after the lapse of four years to recover it back.

It is argued that inasmuch as the guardian to whom the plaintiff paid the money does not plead the act, and therefore the plaintiff can recover it from him, who in his turn can go over to his ward for indemnity — that from these circumstances it follows, that the ward cannot protect herself by the statute.

If the plea is a good defence for the guardian, which he collusively neglects to make, the ward is not bound. So it was decided in Peyton v. Peyton, (Charleston MS. eases,) where a creditor having called the administrator and distributees before the Court, it was held that although the administrator would not plead the act, the distributees might do it for him, and thus protect their interests.

But there is another answer. Although the guardian has not pleaded the statute of limitations, he has pleaded and proved a full administration, (by settlement with his ward,) of all that came to his hands, and this before notice of any mistake. This discharges him. And as, by the argument to which I have alluded, the ward’s liability to the administrator is made to depend on the previous liability of the guardian, it follows that there can be no recovery here against the ward.

The bill must therefore be dismissed as to Gilmore and wife; but without costs.

*The bill must also be dismissed as to Mrs. Gilmore’s guardian ; he having sustained his plea of having paid over the assets before L notice from the plaiptiff.

With respect to the accounts, I am directed to say that the Court is, except in one or two particulars, satisfied with the circuit decision on the exceptions.

It is their opinion that if the defendants charge the administrator of George Massey according to the ordinary rule, with interest on the annual balances, he should not be charged with interest on the interest returned by him. The defendants must elect between the two methods of stating the accounts. If they choose to charge the interest returned, that will dispose of the exception relating to the sale bill. If they choose to chai’ge by the ordinary rule, the question whether the interest on the sale bill shall be charged as contended for, will arise. That question is now pending before the Court in another case: and had better be left open in this until decided in that, or until the report comes in again. It may be, that the defendants’ election may render it unnecessary to decide it in this case.

Let the circuit decrees be modified according to the foregoing opinion ; and the case remanded to the Circuit Court.

Chancellors De Satjssdre, Johnson and Harper, and Justices O’Neall, Riohards'on, Evans and Butler, concurred.

An Act of the Legislature was passed on the 21st day of December, 1836, entitled “An Act to organize the Courts of this State,” which, after prescribing the times and places of holding the Courts of Law and Equity, provides, amongst other things, as follows :

Seo. 5. That all appeals from the Courts of Law shall be heard and determined in a Court of Appeals, consisting of the Law Judges — and that all appeals in Equity shall be heard and determined in a Court of Appeals, consisting of the Chancellors : That the said Courts shall meet at the same time, and be held as follows : that is to say : at Charleston, on the first Monday in February; and at Columbia, on the first Monday in May, and fourth Monday in November.

Sec. 6. That in all questions of Law, as distinguished from Equity, the Court of Chancery shall follow the decision of the Court of Law.

Seo. 1. That upon all constitutional questions arising out of the Constitution of this State, or of the United States, an appeal shall lie to the whole of the Judges assembled to hear such appeals: That an appeal shall also lie to the whole of the Judges upon all questions upon which either of the Courts of Appeal shall be divided, or when any two of the Judges of the Court shall require that a cause be further heard by all the Judges.

Seo. 8. That the Judges of Law and Equity, when assembled as aforesaid in one chamber, shall form a Court for the correction of all errors in Law or Equity, in the cases that may be heard before them : and that it shall be the duty of the Judges to make all proper rules and regulations for the practice of the said Court of Errors, and for the mode of bringing causes before them.  