
    Jacob R. Harley, and Elizabeth, his Wife, vs. Charles De Witt, and Others.
    The ten pound rule in regard to the hire of negroes is notan arbitrary rule of value, but may be varied with the circumstances of the case. It imports no more than that the trustee of a planting interest who renders no accounts shall not be charged less than ten pounds per hand, and does not apply where greater profits were or might ordinarily have been made. [*369]
    The rule does not apply where the hands were engaged in other and more profitable pursuits than planting. [*370]
    Guirdian who is co-tenant with his ward liable for his rent, although he may not have used beyond his own interest. He should have made her land productive. [*376]
    Before Chancellor De Saussure, at Barnwell, February, 1835.
    The bill alleges that George Bruton, the father of the plaintiff, Elizabeth, died intestate, possessed of a valuable plantation and several slaves and other property, leaving a widow, and this plaintiff, his only heirs at law; that some time after, the defendant, De Witt, married the widow, and administered on the estate; and was appointed the guardian-in-chief of the plaintiff Elizabeth, then an infant. That he took possession of the plantation and slaves, and all the other property; and cultivated the land, and worked the slaves and hired them out; sold part of the property, including some of the slaves, and appropriated the profits of the plantation and the labor and hire of the slaves, and the sales, to his own benefit, without rendering satisfactory returns, either as administrator or guardian; That the wife of the defendant, De Witt, and plaintiff’s mother, has lately died, and the plaintiffs are entitled to' a distributive share of her estate. ^16 prays for an account *from De Witt, as administrator -* and guardian, and for partition of his wife’s estate.
    No answer was filed, and the matters of account were referred to the Commissioner.
    On the reference, Richard Road, who had been for seven years an overseer for De Witt, testified as to the rent of the land and negro hire, and that De Witt was getting out timber for sale nearly all the time he was with him. He planted cotton two years and worked all the men hands two seasons on the railroad. Two other witnesses were examined as to the value of the hire of the negroes and rent of the land. Their evidence is not important.
    Exceptions were filed to the Commissioner’s report by both parties; but it is only necessary to notice those which were made the subject of appeal, viz : on the part of the defendant :
    1. That the Commissioner has allowed more than £10 per annum for the hire of the negroes; whereas defendant submits that the plaintiffs are only entitled to £10 for fall, and £5 for half hands.
    2. That the Commissioner has charged the defendant with rent of the plantation; whereas he submits, that not having cultivated beyond his interest, he was not chargeable with rent.
    The Chancellor sustained these exceptions; and the plaintiffs appeal from liis decision in these particulars.
    
      Patterson, for the appellants,
    insisted that the £10 rule, as laid down in Lyles v. Lyles, 1 Hill’s Ch. 16, and other cases, was inapplicable to this case. That the rule was only intended to furnish a standard by which trustees should account, where regular accounts were not reported,, and in the absence of all evidence going to fix a higher rate of value. That the actual value of negro hire was established in this case with sufficient certainty, by competent and credible witnesses; and their opinion, especially as the negroes were not employed in ordinary culture, should be taken in preference to an arbitrary rule of value, not applicable to the circumstances of the case. That the defendant was bound to have kept regular accounts of his receipts and expenditures, and failing in his duty in this respect, to diminish his responsibility by this arbitrary rule, would be to permit him to take advantage of his own fraud, or negligence equivalent to fraud. And as guardian and ^trustee, he was re- r*c>f>Q sponsible for the management of the plantation, and consequently L liable for rent. Cited, Frazier v. Yaux, 1 Hill’s Ch. Rep. 206 ; Hovenden on Frauds, 421 ; 13 Yes. 53.
    
      Bellinger, contra.
    As to the £10 rule — Cited, Lyles v. Lyles, 1 Hill’s Ch. Rep. 86; Frazier v. Yaux, lb. 206; 2 Eq. Rep. 499; 4 Eq. Rep. 210. As to the rent — Yolentine v. Johnson, 1 Hill’s Ch. Rep. 49; Lyles v. Lyles, lb. 86.
   Johnson, J.

The questions arising out of the grounds of this motion, are:—

1. As to the rule by which the value of slave hire is to be ascertained.

2. Whether the defendant is bound to account to plaintiff for the rent of the wife’s land.

In the case of Lyles v. Lyles, 1 Hill’s Ch. Rep. 81, and in some other cases there referred to, the Court adopted the old rule of allowing £10 for the hire of full task hands as the standard of the value of slave hire, not as an arbitrary rule of value, but the result of calculations founded on observation and experience, and of coure liable to be varied by circumstances ; and notwithstanding the care that has been taken, it still appears that the principle of the rule is not universally understood. Where an estate in the hands of an administrator consists of lands and negroes, it is obviously the interest of those entitled to it, that the negroes should be kept together and employed on the lands, although the annual income might fall short of what the slaves and lands might rent and hire for; the lands would probably be less deteriorated in value, than in the hands of a tenant who would feel no other interest in it than for the time which he occupied it; generally the slaves would be better provided for, and more attention bestowed on the old and the young, than in the hands of strangers, who would feel no sympathy for them; and the object of adopting the £10 rule, so far from being intended as a favor to the administrator, was to charge him in the absence of regular accounts, with the full value of what he might reasonably be supposed to have made with ordinary care and industry — and that will appear by referring to the note annexed to the case of Lyles v. Lyles. Cotton estimated at twelve and-a-half cents per pound, is the basis of that calculation, and in Myers v Myers, the evidence established that price, as the average of a *series of years. If, therefore, the price of cotton should be greater 0 for one or more years, or the average price through a succession <- of years should be higher, the rule must be necessarily varied to suit the particular case, and a corresponding increase of hire allowed. Or, if from adventitious circumstances, such as unusually productive lands, favorable seasons, and the superiority of the hands, greater crops than the general average were actually, or might, with ordinary industry, have been made, a corresponding increase of hire of slaves and rents of land ought to be allowed. The rule imports no more than that the administrator shall not be charged with less than £10 per hand, where no accounts are rendered, and certainly does not protect him where greater profits were or might have been made with ordinary industry. Let us suppose, for example, that the average price of cotton was twenty cents per pound, and that two and a-half bags of 300 lbs. each was the average crop for a single hand, that would amount to one hundred and fifty dollars; and if we deduct from this $51 54 the estimated expenses on each hand, adopted in the note in Lyles v. Lyles, and which would not be materially varied by the increased price of cotton, it would leave a balance of $98 46 to be credited to the hire of the slave, for which the administrator would be bound to account. The rule was never intended to operate imperatively, but to supply a principle by which the extent of the liability of persons standing in this situation was to be ascertained.

In this case, however', the slaves were employed but a small portion ,of their time in planting-, but for the most part in preparing timber for market, and working on the railroad; and the necessary inference is, that these were more profitable pursuits; consequently a rule based on an estimate of cotton-planting cannot apply, and for the reasons before given, the usual prices paid for hire, would be an unsafe rule. The nett income which might be reasonably calculated on from these employments after deducting the probable expenditures, furnishes therefore the only practical and safe rule, and the Commissioner will adopt it in the reference which will be ordered.

As to the land rents. — The Chancellor is certainly correct in laying down the rule, that if one of several co-tenants cultivates or uses no more than his own share of the lands, he is not liable to his co-tenants for rent; but with great deference, it has no application to the case in hand. It is true, the parties were co-tenants, but the ^defendant stood -I also in the relation of guardian to the plaintiff, Mrs. Harley, and in that character he was bound to make her lands productive if he could, _ and is liable, if he has neglected to do so. He must therefore account for rents.

It is therefore ordered, that the case be referred back to the Commissioner to examine and report to the Circuit Court on the matters before noticed, according to the principles of this decree.

O’Neall, J., and Harper, J., concurred.  