
    McCREELISS’S DISTRIBUTEES vs. HINKLE, Adm’r.
    1. The power to dismiss a writ of error, unless the plaintiff will refund the money which he has collected on the judgment complained of, is discretionary, and will not be exercised where the money has been paid without compulsion, aud the defendant in no aspect of the case can be injured.
    2. A security on the administration bond is not a competent witness for the administrator on the settlement of liis accounts.
    3. Where the only question- at issue is whether the administrator has paid an account duo by the intestate, a receipt signed by the duly authorised agent of the creditor, accompanied with proof of hia signature and .of the removal of both the principal and agent from the State, is prima fucie evidence of the payment.
    
      4. The .record of an annual settlement by an administrator, which fails to show notice to the distributees, and the appointment of a guardian ad Idem, for the infants, is not prima facie evidence against them, and is therefore inadmissible.
    5. If an administrator makes affidavit that he has not used the funds of the estate for his own private purposes, and his statement is not controverted, he is not chargeable with interest.
    6. "Where an administrator without authority continues to employ the slaves of the estate in the business in which they wore engaged at the time of the intestate’s ¡Path, the distributee.' may elect to fake their hire or the profits realised : If they elect the hire, it is an abandonment of. the profits; if the profits, they must fake them cum outre the expenses*
    Error to the Orphans’ Court of Lowndes*
    T. & J. Williams, for the plaintiffs in error:
    1. The authority of an administrator do bonis non embraces only siich of the personalty of the first decedent as remains in specie unaltered or unconverted by his predecessor. — Chamberlain, adm’r, v. Bates, 2 Porter, 550.
    
      2. An administrator do bonis non cannot be allowed credits for payment of debts contracted by the administrator in chief, unless he shows that such debts were justly chargeable to the estate. — Hearin, adm’r, v. Savage, adm’r, 16 Ala, 286. Distributees are allowed to elect whether they will take the proceeds or hire of slaves where they are woiked, without instructions in. will or by order of County Court. — Steel v. Knox, 10 Ala. 608*
    3. Settlements before the Orphans’ Court by administrator, in order to make them prima facie correct, should show that parties had notice; and in a case where infants are concerned guardians ad litem should be appointed and there should be action by Orphans’ Court. — Willis v. Willis et al. 16 Ala. 652.
    4. Interest should be charged where administrator keeps the estate in money for ten years, notwithstanding the administrator may state on oath lie did not use the funds.
    5. Security to administrator is incompetent to testify for administrator on settlement of administrator’s accounts, as execution may issue against him for the amount decreed on return of nulla bona against administrator.
    Stone & Judge, for the defendant:
    I. The plaintiff in error has received full payment of the sum decreed below, and cannot now prosecute a writ of error without paying back all of the money received. The rule and the reason of it apply in this case with all their force, notwithstanding what is said in the receipt. The clear sense of the rule is, that a party who has collected the money shall not prosecute a writ of error and reverse a case, when upon another trial lie may recover nothing. — Hall v. Hrabrouski, 9 Ala. 278; Bradford v. Bush, 10 ib. 27-1.
    2. To allow the party to'prosecute a writ of error in this case is to permit him to claim all the advantages of the decree, while he submits to none of its disabilities.
    3. The estate was very properly chargeable with the expenses incurred in keeping up the brick-yard ; and if they were legitimate charges against the estate, and had not been paid by Porter, then administrator ¿Le bonis non was right in paying them and properly credited for the amounts thereof.
    4. As to the competency of Rice as a witness, it is contended that his interest was remote and entirely contingent. It would have to he presumed in advance that the administrator would commit a devastavit to render his security incompetent on the ground of interest.
    
      5. The receipt of Porter & Ryon by Pennington, or the account to which said receipt is appended, was properly allowed administrator as a credit. Its justness was admitted — the fact of im.xjment alone was controverted. The testimony as to payment was legal, but if it was not, no injury has resulred. The justness of the account being admitted, the law presumes the administrator paid it; he having it in possession receipted.
    (5. Partial settlements of an executor or administrator, if made conformably to law, are to he considered as j/rima jade correct. If those in question were exparte, or not made conform-ably to law, the record docs not show it. Error must be affirmatively shown or this court will not reverse.
    7. The administrator was properly exempted from the payment of interest, he having made the statutory affidavit, which was not controverted. The administrator did not keep the funds on hand. Large payments were made to distributees, and disbursements made, as the record shows.
   D ARCAN, C. J.

Morgan B. Ilinckle, the administrator de bonis non of John R. McCreeliss, filed his accounts and vouchers in the Orphans’ Court of Lowndes for a final settlement. On the day appointed the parties appeared, a final settlement was made and a decree rendered, which shows that the court ascertained to be in the hands of the administrator subject to distribution amongst the next of kin the s-urn of thirty-four hundred and eleven dollars. It further appears that the administrator then paid to the respective distributees their portions of this sum and no decree was rendered against him, but lie was discharged and the estate declared to be fully settled. From this decree the distributees have taken a writ of error and brought the cause to this court. A motion is now submitted to dismiss the writ of error because the plaintiffs in error having received payment of the sum ascertained to be due to them, ¡hey cannot be permitted to prosecute a writ of error without refunding the money received by "them to the administrator. In support of this motion the defendant in error relies on the authority of the cases of Hall v. Hrabrouski, 9 Ala. 278, and Bradford v. Bush, 10 Ala. 274. Both of those cases, however, were suits at law, and satisfaction of the judgments had been coerced by executions. In delivering the opinion the court said that it was obviously unjust to permit the plaintiff to collect the amount of the judgment of which he was complaining and at the same time to prosecute a writ of error, for if the judgment be" reversed he might on another trial fail entirely to recover any thing. I fully agree in the propriety of these decisions, hut do not think they are applicable to the case at bar. The very ground on which the court went in suspending all proceedings upon the writ of error unless the plaintiff would refund the money, was that on another trial the plaintiff might fail to recover altogether and thus be in possession of money to which lie was not entitled. But I apprehend that these decisions would not apply to a case in life Orphans’ or Chancery court, if it plainly appears from the showing or answer of the defendant, that the plaintiff could not recover less than the amount awarded to him by the decree. The power thus exercised by the appellate court, to compel the plaintiff to refund the money or dismiss his writ of error, seems to me to be a discretionary one and may be well exercised when the conduct of a party is vexatious or oppressive, and may ultimately result to the injury of the other, but when the defendant can, in no aspect of the case, be injured by the plaintiffs’ receiving the money and this is paid without compulsion, I see no good reason why we should make an order on.the plaintiff to refund the money or to sub.ini't to a dismissal of his writ. In this particular case, however, there is no decree in favor of the plaintiffs in error. The decree shows that on the day of the final settlement a sum of money was in the hands of the administrator which ho paid over to the plaintiffs, and the decree was then rendered in his favor, by which he was entirely discharged. This is the same in effect as if this account had been paid to the distributees before the day of final settlement, and then on that day there had been nothing found in' his hands due to the plaintiffs. Wc cannot doubt but that we should hear the errors assigned.

2. In the progress of the trial the administrator offered William Rice, who was his security on his administration bond, to give evidence in support of his accounts. The distributees objected to the competency of this witness on the ground of interest, but their objection was overruled. The court clearly erred in permitting the witness to testify. It is the well settled rule that bail to the action are incompetent to give evidence on the trial in favor of the defendant for whom they are bound as bail, and to render them competent they must first be discharged in some of the modes prescribed by law. — 1 Greenl. Ev. §302, and cases there cited. We cannot believe that the liability of the securities of an administrator on a final settlement of the estate is more remote or contingent than is the liability of bail. The bail is fixed by the recovery of judgment against his principal and the return of a ca. sa.non cst inventus. So the ¡lability of the security is fixed under our statutes by the return of aa execution issued on the final decree, no property, and an execution may be forthwith issued against him. It would bo inconsistent with all principle to hold that bail was incompetent to testily, but that the securities of an administrator or executor were competent to give evidence in favor of their principals upon the final settlements of the estates they represent.

3. The administrator insisted on a credit for the amount of an account due by the intestate to Porter & Ryan, and which lie contended he had paid to Ryan, the surviving partner. The account was admitted by die distributees to be correct, but they contested the fact that the administrator bad paid it. The account purported to be receipted by one Pennington, whose hand-writing was proven and who was shown to have been the duly authorised agent of Ryan, the surviving partner; and it was also shown that both Pennington and Ryan had left the State and it was not known where they bad gone. Under these circumstances the administrator offered the receipt as evidence to prove the payment of the account by him, to the sufficiency of which the distributees objected, but their objection was overruled. We think this evidence was properly received. The 'correctness of the account was not denied but admitted; it was therefore a just démand against the estate, and the evidence was certainly binding on Ryan, to whom the debt was due, to show that it had been paid ; and being binding on him, we see no reason why the distributees can object to it. But it is urged that the administrator may have extinguished the debt for less than the amount, and if so, lie could only charge the estate with the amount actually paid. The answer to this is, that the evidence shows prima facie that the entire amount was paid, and if the administrator extinguished it for a less sum, it was incumbent on the distributees to pro.ve it.

4. The administrator also offered in evidence the records of two annual settlements made in the years 1838 and 1839, as aprima facie evidence in support of his accounts and vouchers. The distributees objected to the introduction of these records, ■but their objection was overruled. In'the case of Willis v. Willis, 9 Ala. 330, it was held that the annual settlements of an administrator made in conformity with law are prima facie to be considered as correct, but that they might be impeached by showing them to be incorrect. This case was again brought before this court and is reported in 16 Ala. 652, in which we held after a deliberate examination, that to make such settlements prima facie evidence of their correctness, it must be shown that the material requisites of the statute had been complied with ; that it must appear that the distributees had notice of the time appointed.for allowing the accounts, and if the distributees were minors, that a guardian ad litem had been appointed who might examine the accounts and object to them, if in his opinion they were incorrect; and that if. it did notappear from the record that the distributees had an opportunity to object to the accounts before they were passed upon and allowed by the court, the settlement could not be received even as prima facie evidence of their justness. This decision shows that the records of the annual settlements of this administrator were inadmissible even as primo, facie evidence. It does not appear that the distributees had notice of the time that the accounts and vouchers were passed and allowed, nor that-a guardian ad litem was appointed for the minors. The court therefore erred in receiving these records even as •prima facie evidence.

5. We think the court properly refused to charge the administrator with interest, he having made affidavit that he had not used the funds of the estate. By our statute, if an executor or administrator expressly deny under oath that he had used the funds of the estate for his own private purposes, he shall not be charged with interest unless that statement is controverted by introducing evidence that proves the contrary. — Clay’s Digest, 19S. It does not appear that any such evidence was introduced. The statement of the administrator was unimpeached and the court could not do otherwise than receive it as true, and hold that the administrator was not bound to pay interest.

G. In reference.to the question growing out of the accounts paid by the administrator de bonis non, but which had been contracted by the administrator in chief, the bill of exceptions is so imperfect, that we think it better not to decide them, as the case must go back for another trial. But the cases of Benford v. Daniels, 13 Ala. 667 — Steele v. Knox, 10 ib. 608 — Hearrin v. Savage, 16 Ala. 286, will afford a sufficient guide to direct the court in its future action on this subject. It may, however, bo observed that if an administrator without authority should continue to employ the slaves of the deceased in the business in which they were engaged at the time of the intestate’s death and in so doing incurs expenses, the distributees may elect to take the use or hire of the slaves, or the profits realised by the administrator — they cannot claim both. If they elect to charge the administrator with hire, they abandon all claim to the profits; but if they claim the profits, they must take them cum onere, and must allow for all the reasonable expenses incurred in making such profits.

Let the decree be reversed and cause remanded.  