#### *Joseph Jenkins vs. John Bell.*

Though the dismissal of a bill may not abrogate or set aside matters finally adjudicated and determined in the progress of the cause, yet all matters merely interlocutory and unexecuted, certainly go with it when it is dismissed.

A party conveyed certain slaves, and, after his death, his administrator, being in possession of the slaves, filed his bill to avoid the conveyance, on the ground of fraud. The conveyance was declared valid, and the administrator delivered up the slaves, and was ordered to account fcr their hire. On the report for the hire coming in, his bill was, on his own motion, dismissed; whereupon, the defendant filed this bill for an account of the hire. The administrator pleaded the statute of limitations, and more than four years having elapsed since his possession ceased, *held,*that he could avail himself of it, and that the proceedings in the first suit did not suspend its operation.

*Before*Johnston, Ch., *at Beaufort,*

*May,*1842.

*The Chancellor.*The bill in this case is brought to reinstate the plaintiff in the condition in which he stood in a former suit between the same parties.

In August, 1831, Thomas R,. Bell, the intestate of the defendant, executed a deed, by which he conveyed the bulk of his estate, including several slaves, to the plaintiff, in trust for his, the plaintiff’s, children. The circumstances under which this conveyance was made, induced the defendant, upon the death of his intestate, (which shortly ensued the deed,) to file his bill in this court, to avoid the instrument, upon the ground of fraud and imposition. The bill in that case was filed the 24th of December, 1831. In the course of the litigation, an issue at law was ordered, which resulted in a verdict, rendered at Fall term, 1833, establishing the deed : upon which, the defendant, Bell, delivered up the slaves to the plaintiff, Jenkins; and on the 28th of January, 1835, an order was made in the cause, by the late Chancellor De Saus-suRE, directing the commissioner to inquire *for how long a period the negroes, the subject of the suit in this cause, luere in the possession of the complainant, John Bell; what was the value of their labor during that period*; *and also, for what portion of that period the complainant is, in his opinion, chargeable with the hire of the said*negroes; *and that he report the evidence, upon which he rests his opinion, to this honorable court.*On *145the 26th of January, 1839, the commissioner filed his report; in which he stated, upon the evidence submitted to him, and which he also reported, that the defendant came to *the*possession of twelve of the slaves in February, 1832, of whom five were sold by the sheriff, under executions against the intestate, on the 13th of May, 1833, and the remaining seven were delivered up in December, 1834.

That, as to two other slaves, it did not appear when Bell’s possession began; but the sheriff sold one of them the 14th of August, 1831, and the other in the sale of the 13th of May, 1833.

He stated an account for hire of the said slaves, according to the time Mr. Bell had been in possession of them, respectively, and the value of their labor ; and charged Mr. Bell the sum of $609.10, for hire as aforesaid.

On the coming in of the report, Bell moved for leave to dismiss his bill; and Chancellor Dunkin, before whom the motion was made, notwithstanding the opposition of the defendant in the cause, felt bound, upon the authority of *Bossard*vs. *Lester,*
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      **(which had not then been overruled,) to grant the motion, and passed an order accordingly, at January term, 1839.

The present bill was filed the 8th of November following; in which the plaintiff seeks to have the benefit of the order in the former cause, of the 28th of January, 1835 ; and has introduced evidence of the value of the services of the slaves, ' during the time the defendant held possession of them.

The defendant relies upon the fact, that whatever sum was chargeable to him for hire, was due in December, 1834, when his possession ceased; insists that there was no trust in the case; and if there was, it was terminated; and pleads the statute of limitations.

There are some other circumstances on my notes, but they are immaterial to the question presented by this plea.

I thought this point doubtful, when the case of *Hanks,*Chev. Eq. 203, was decided ; but it is unnecessary to say, that decision must govern me on the circuit.

It is ordered, that the bill te dismissed.

From this decree the complainant appealed, on the following grounds:

1. Because his Honor sustáined the plea of the statute of lim*146itations ; whereas, it is respectfully submitted, that said plea, on the case made, ought to have been overruled.

2. Because the decree is, in other respects, contrary to equity -

*Edmund*Rhett, for complainant.

-•, contra.

2 McC. Ch. 419, overruled by *Bethia*vs. *McKay,*Chev. Eq.93. *Vide*also *Bank*vs. *Rose,*1 Rich. Eq. 292.

*Curia, per*JohnstoN, Oh.

We are not at liberty to enquire whether the order of January, 1839, dismissing Bell’s bill, was properly granted. If it was not, it would have been set aside on appeal. The party who, instead of appealing, acquiesced in it, is precluded from complaining of its irregularity.

We are of opinion, that the order of reference of January, 1835, fell with the bill. We are not to be understood as deciding that the dismissal of a bill abrogates or sets aside matters finally adjudicated and determined in the progress of the cause j as in *Bond*vs. *Hopkins,*(1 Sch. and Lef. 413,) referred to in the argument. But all matters merely interlocutory, and unexecu-ted, certainly go with the bill, when that is dismissed.

But it is argued, that the statute was suspended during the existence of this order of reference. The case of *Hanks,*referred to in the decree, is conclusive upon this point; and the case is to be regarded as if no such order had ever existed.

It has been said, that the pendency of the suit of Bell against Jenkins, prevented the latter from asserting his claim by independent proceedings; and that it would be unjust to allow his opponent to keep him suspended in this court until the statute had barred him, and then to take advantage of this delay. But there was nothing in Bell’s bill to prevent the assertion of Jenkins’ claim, either in law or equity. There was an order restraining the latter from selling or removing the slaves in his possession ; but nothing to preclude him from suing for those in Bell’s possession, or their hire.

These latter slaves were delivered up in 1834. Whatever hire was due on their account, was due then. There was no trust, whatever, in the case. The demand was purely legal; and we do not perceive upon what principle it can be contended that the statute did not run from that time.

Theie is another ground upon which the bill should have been dismissed. Pending the suit of Bell vs. Jenkins, the creditors of Bell’s intestate filed a bill against both parties, to set aside the deed as fraudulent and voluntary. An account was taken of the administration of the estate in Bell’s possession, and resulted in a balance of $50.27 in his favour.

*147It was the interest of Jenkins, who was entitled to the residue after satisfying the creditors, to make Bell liable for a larger sum. But he took no exception to the report; and is, therefore, bound by it. What a party may contest and does not contest, he is barred from afterwards litigating.

It is ordered, that the decree be affirmed, and the appeal dismissed.

Johnson and Dunkin, CC. concurred.