#### James E. Kerr *vs.*John Webb, Administrator.

In 1852, plaintiff claiming to be distributee of B., -who was a distrib-utee of W., filed a bill against tbe administrator of W., and the ordinary, * for account, alleging that the estate of B., was derelict. The ordinary answered, denying all intermeddling or notice of assets. In 1854, the plaintiff administered on B’s estate and filed another bill, styling it a supplemental bill, against W., for *account:*— Held, that the second was. not a supplemental but an original bill*.*

*A*recovery in trover against the administrator of W,, by one claiming under a deed executed by B., who was a distributee of 'W.jheld, to bar the administrator of B., from demanding an account from the administrator of W., for the value of the slaves thus recovered in trover, or any part thereof, although it appeared, that the verdict in trover was the result of a compromise, and was for much less than the full value of the slaves.

On bill by the administratpr of a distributee of W. against W’s administrator for account, a counter claim, consisting of various matters, held, not objectionable because the claims were not in mutual right.

BEFORE WARDLAW, OH., AT KERSHAW, JUNE SITTINGS, 1856.

This case will be fully understood from the circuit decree, which is as follows:

Wardlaw, Gh. By his original bill, filed April 18, 1852, the plaintiff, a resident of Salisbury, N. 0., claimed that, as sole distributee and next of kin of Jane Berry (by birth, Kerr,) a widow of John Webb, Sr., who died intestate about 1827, he was entitled to a third of Webb’s estate, leaving two thirds to the defendant, John Webb, son and administrator of said intestate. After the death of John Webb, Sr., the widow, Jane, was taken in marriage, about 1828, by one Josey, who died about 1832, and again taken in marriage between 1841 and 1844, by Thomas Berry, who died about a *370year after the intermarriage ; and herself died in the summer of 1848. She retained in possession until her death, a slave named Anna and her issue, now five, which had belonged to John Webb in his life-time. On November 24, 1838, while widow of Josey, she gave the said negroes, by deed to Sarah P. Anderson, daughter of Frances Kerr, reserving to herself their services during her life-time. After her death, defendant administered on the estate of his father, John Webb, Sr., and an appraisement returned to the Ordinary of Chesterfield, October 16, 1848, included, as belonging to the estate of his intestate, said six slaves, at the value of one thousand seven hundred dollars, some cattle and furniture at the value of one hundred and thirty-two dollars and fifty cents, and some notes ranging at maturity from January 26,1845, to March 5,1848, to the aggregate sum of five hundred and forty-nine dollars and forty-eight cents. On October 3, 1848, Sarah P. Anderson instituted, in the Court of Common Pleas for Kershaw, an action of trover against John Webb the younger, for the recovery of said slaves, and at Spring Term, *1850,*obtained a verdict for one thousand two hundred dollars, she agreeing to. pay her own cost, and on April 30, 1850, entered up a judgment which has been satisfied in full by the defendant. There is testimony that the verdict was the result of a compromise, and for considerably less than the market value of the slaves.

To the original bill W. R. Griffith, Ordinary of Chesterfield, was made a party defendant as the official administrator of the estate of Jane Berry, and in his answer, the Ordinary denies all intermeddling on his part with the estate of Jane Berry, and all notice that she possessed any estate at her death She seems to have died in Kershaw. As to this defendant the suit is not pressed, and it is ordered that the bill be dismissed.

The plaintiff filed another bill June 6, 1854, against the defendant, John Webb, as administrator, which is styled a *371supplemental bill, wherein he reiterates the statements of his former bill, with the additional allegation that the Legislature had repealed the Acts making Ordinaries official administrators, and that plaintiff himself, on May 26, 1854, had received grant of administration of Jane Berry’s chattels and effects. *

In neither of his bills does the plaintiff state his degree of kindred to Jane Berry, nor the process of his claim to be her sole distributee. He makes no proof on the point.

In answer to the former bill, defendant, John Webb, requires strict proof of the allegation that plaintiff is next of kin and distributee of Jane Berry ; insists that the recovery against him in trover by one claiming under the deed of Jane and his satisfaction of the sum recovered vests title to the slaves in him absolutely, and bars any one deducing claim through Jane Berry, and sets up, as a counter claim, moneys expended by him for said Jane, and services rendered to her during her widowhood.

In answer to the second bill, John Webb additionally insists in defence, that the latter is not truly a supplemental bill in continuation of the former, but really an original suit in a new character ; that Jane Berry, by reason of her enjoyment of the services of said slaves and her representative, are largely indebted to him, as representative of John Webb, Sr., that her rights in the estate of said intestate passed to her subsequent husbands, Josey and Berry, and that representatives of these estates should be made parties, and that plaintiff is barred by the statute of limitations and the lapse of time.

The objection of the defendant, that the prior bill did not commence suit continued by the latter, has some force, for it was in a character as distributee to which the plaintiff has not shown right, and against a supposed representative, who disclaimed the office. Indeed the title of plaintiff, in the second bill as administrator, is not supported by any proof *372in this Court that he was kinsman or creditor of the intestate, but from the grant of administration'to him by the Ordinary, it must be presumed that before that judge some evidence of his light was given, or at least that the Ordinary properly exercised the discretion confided to him by See. 3, A. A. 1839, 11 Stat. 39, of appointing any person administrator in default of application by those, of superior claims for the trust. In my view of the case, this objection affects the matter of costs only *■*and it is adjudged and ordered that plaintiff pay the costs of the former bill.

The plea of the statute of limitations is no bar to the general account sought by the bill, for the statute did not begin to run until the grant of administration to the defendant in 1848, *Geiger*vs. Brown, 4 McC. 433: indeed it has no application to a technical trust, such as subsists between administrators and distributees. The analogous defence of lapse of time has little weight. The explicit acknowledgment of the defendant, under oath too, that in 1848, certain property belonged to his intestate — and the controversey is confined to this property — creates a new starting point for the presumption from lapse, and the subsequent succession of years is quite too brief to raise the presumption. This appraisement is proof *prima facie*from the defendant himself, that the property included was liable to be shared after payment of intestate’s debts, among the distributees of John "Webb, Sr.; not proof absolutely estopping the defendant against the truth of the case, but requiring him to satisfy the tribunal that his admission was made in mistake, or that the property belonged to another.

Such countervailing proof has been made by the defendant in relation to the slaves. A verdict in trover for plaintiff usually implies that plaintiff has recovered the value of the chattels converted with compensation for the use since the conversion; and satisfaction of the sum recovered vests in the defendant title to the chattels themselves. The recovery here *373was under the deed of plaintiff’s intestate, and is conclusive as to any claim derived through her. She always claimed Anna as her individual property, and a partition of the property of John Webb, Sr., between defendant and herself, at least of the slaves, is rendered so probable as to be now adopted as a fact, from the circumstances, that shortly before his death, John Webb, Sr., took with him to Edgefield where he died, two slaves, a negro man and Anna, and that after his death defendant sold the negro man as his own to Col. Levy, and the widow took and retained Anna. The plaintiff urges that, by reason of the compromise between S. P. Anderson and the defendant, the case is exceptional, and one in which the fiction of law as to the effect of the verdict in trover should not be pressed, and that full equity would be afforded to defendant by requiring him to account for the full value of the slaves and their hire, and allowing him credit for the one thousand two hundred dollars paid in the spring of 1850. It is a misconception to treat as a fiction what is an established principle of law as to the effect of a verdict in trover. If plaintiff had shown that defendant fraudulently or improperly allowed the verdict to be taken against him on some private arrangement for his own emolument, in breach of his duty as trustee, he would have laid some foundation for redress, but he has not enlightened the Court as to the terms of the supposed compromise, and the whole evidence on the subject is in effect hearsay, that the opposite counsel agreed upon the sum'of the verdict, and that the cost should be divided. He was sued as an individual and not as a representative at a time when he supposed himself the sole distributee of his fatheiyand it would not have been grossly nnconscientious in him to save something for himself in the imminent wreck of the estate. The proof on this point seems to me insufficient to overcome the inferences from the verdict; and it is ordered that the bill be dismissed as to the slaves.

As to the cattle and furniture and notes mentioned in the *374appraisement, I suppose the plaintiff, as administrator, is entitled to an account, although it is questionable whether he will be benefited by the result. He claims for his intestate only the third to which she was entitled as á widow of John Webb, Sr. It is extraordinary, that the chattels in her possession escaped the marital rights of her husbands Josey and Berry, and that *dioses*falling due from eighteen to twenty-one years after the death of John Webb, Sr., should belong to his estate; still I must treat the sworn admission of defendant, in 1848, as proof until contradicted, that these chattels and *dioses,*by arrangement of parties in marriage articles or otherwise, and in lack of partition, remained the property of his intestate.

In bills for account, both parties are actors and it is not intended to exclude the defendant from setting up in rebuttal any just demands which he may establish for payments made as administrator of John Webb, Sr., towards debts generally, or the satisfaction of the widow’s share, nor for payments or services or claims by him as administrator, or before his administration, affecting her or her estate or her representative. Nothing is prejudged as to the validity of defendant’s claims, nor as to the defences which may be made by the statute of limitations, or his failure to recover from the husbands of Jane, or otherwise, as the facts on these points are not before me. It is intended, however, to overrule the objections of plaintiff as presented broadly, that the claims of plaintiff and counterclaim of defendant not being in mutual right, the defendant is precluded from setting up any discount. These matters cannot be adjudged definitely until the Commissioners’ report be made.

It is ordered that it be referred to the Commissioner of the Court for Kershaw to state the accounts between the parties on the principles of this opinion. Let the costs await the accounting.

*375The complainant appealed, and now moved this Court to modify the decree, on the grounds:

1. Because the bill last filed by complainant was properly a continuance of the former bill, and supplemental to it.

2. Because complainant is entitled to an account for the negroes returned in the inventory of the estate of John Webb, Sr., by the defendant as administrator,

8. Because the compromise verdict in trover, in the case of Anderson *vs.*Webb, left the defendant in possession of negroes of the estate of John Webb, Sr., his intestate, for the fall value of which he was bound to account, first deducting the amount paid by him in satisfaction of the verdict.

4. Because the claims of complainant and the counter claims of defendant, not in mutual right, cannot be set off.

*Kershaw,*for appellant.

*Gaston,*contra.

*Per Curium.*

This Court sees nothing in the appeal to invalidate the decree. It is, therefore, ordered that the decree be affirmed, and the appeal dismissed.

Johnston, Dunkin, Dargan and Wardlaw, CO., concurring.

*Appeal dismissed.*