
    Britton McClendon vs. John Gomillon.
    In a settlement by an administrator with the Ordinary, in which the former was not charged with interest by reason of the unproductiveness of the funds of the estate, and the shares of the distributees were so ascertained, he cannot in a subsequent settlement with one of the distributees for her share, charge her with interest on a note given by the latter'for property bought at the sale of the intestate’s effects, where the share of the distributee exceeded the amount of the note. A note so given is to be regarded as a payment to the distributee.
    Though the decree of the Ordinary does not charge the administrator with interest,, by reason of the unproductiveness of the funds in his hands, yet, if he actually receive it afterwards, he may be compelled to account.
    BEFORE O’NEALL, J., AT EDGEFIELD, SPRING TERM, 1837.
    This was an action of assumpsit brought to recover back a sum of money, paid under the following circumstances :
    The defendant was the administrator of one Modlock, of whom the plaintiff’s wife was one of the distributees. For some of the property, sold at the sale, the plaintiff’s wife gave her note to the defendant, as administrator, for nine hundred and seventy-five dollars. The note fell due in February, 1835, which was the time at which the sale bill was also due.
    In the course of the year 1835, the defendant came to a settlement before the Ordinary, with the distributees of his intestate, and their shares were ascertained without interest. In December, 1835, the plaintiff and defendant came to a settlement — on that occasion the defendant insisted on the note of the plaintiff’s wife, and deducting the aggregate of principal and interest from her share of the estate, on which no interest was allowed. The plaintiff objected to this mode of settlement; but at last it was agreed that the interest should be 'charged, and if it was not according to law that the defendant should receive it, that he should then refund it.
    His Honor ruled that the interest on the note of the plaintiff’s wife, was improperly charged — her share of the estate exceeded it; it was given for property sold at the sale, and was in law nothing more than a payment to the distri-butee of a part of her share.
    
      He was also of opinion that the Ordinary’s decree did not preclude, the plaintiff from making this question: that merely divided the amount due by the administrator to each dis-tributee, upon the footing that the funds of the estate were unproductive of interest. If subsequent to the settlement the defendant actually received interest on a part of the funds — be thought on the principle of Dichson vs. Hunter, decided at Columbia, in December, 1836, that be might be compelled to.account for it, notwithstanding the previous settlement of the administrator’s accounts before the Ordinary.
    The plaintiff bad a verdict for the interest paid on bis wife’s note, and the defendant gave notice of an appeal on the grounds:
    1st. That by the rules of law the plaintiff was not entitled to reover back the interest be bad paid to the defendant on the note; that interest having been properly chargeable after its maturity.
    2d. That if the plaintiff was entitled to any relief at all it was by way of appeal from the decision of the Ordinary in making up the accounts, and passing a decree as to the amount due to each one of the distributees.
    3d. Because the decree of the Ordinary was final and conclusive.between the parties, and this Court bad no jurisdiction of the matter.
    4th. The verdict was contrary to law and evidence.
    Bauskett, defendant’s attorney.
   Curia, per O’Neall, J.

In this case the Court concurs in the views expressed by the Judge below.

The motion is dismissed.  