of the balance. This part of the account shews the sum of $68 25, to be the complainant's wife's share of her deceased brother's net personal estate, other than slaves as aforesaid.

The auditor has then stated account No. 3, in which the defendant is charged with the complainant's wife's share of her deceased brother's net personal estate, other than slaves; with her said proportion of the rents and profits of the real estate; with her said proportion of the net personal estate, other than slaves, and of the interest of the whole net personal estate to the 19th of December, aforesaid; and lastly, with interest on the two last year's rent of the real estate, from the day and year respectively, on which they became due to the 19th of December, 1813. He is then credited by the usual allowance as aforesaid, for the board, clothing and tuition of the complainant's wife, and by the negro girl, cash, and sundry articles stated to have been paid to her, by the defendant, as the consideration of the release vacated by the decree. The defendant, however, is not credited by the land, said to have been at the same time, and for the same purpose given to the complainant's wife at $100; because it does not appear from the proceedings, that the said land, or any other was ever conveyed to her. This account then shows a balance due on the 19th of December, 1813, to the complainants of $41 88.

The auditor has then stated account No. 4, first stating from the testimony, taken in virtue of the commsssion, an estimate, marked A, of the value, at the time of executing the said commission, of the personal estate which consisted of slaves, together with their increase, in which the defendant is charged with all the slaves, and credited by one-half of them in value in kind in right of his deceased wife. This last account gives seven negro slaves therein named, most of them children, to the complainants, and four of full age to the defendant.

The auditor begs leave to remark, that if the improvements for which the defendant claims an allowance have given any additional value to the real estate, which from the testimony is extremely doubtful, he is of opinion, that their cost as well as every other incidental expense, not allowed him in the accounts aforesaid, have been fully reimbursed by his holding the net personal estate, other than the slaves, at their appraised valuation, which is clearly proved to have been a very inadequate one. He has to remark, also, with reference to the interlocutory decree, that if the accounts had been stated conformably to the principles there suggested, the

result would have been precisely the same.

He therefore begs

leave to report, that the complainants are now entitled to the following negro slaves, to wit: Ben, Joseph, Roderick, Lucy, Westly, Mary, and Henry, and also to the sum of $41 88, with interest thereon from the 19th day of the current month until paid; and their costs incurred in the prosecution of this suit.

To this report the defendant excepted; first, because the auditor had paid no regard to the valuation of the real estate, as made under the authority of the Orphans Court, and sanctioned by that court, and which valuation could not be set aside by the testimony in this case; second, because a sufficient allowance had not been made for the board, clothing, and education of the complainant Harriet and her brother; third, because the defendant was charged with the rents and profits of the real estate before he took charge thereof, or had any thing to do therewith; fourth, because no allowance was made to the defendant for the repairs and improvements made by him on the farm of the complainant Harriet, and which being necessary ought to be allowed; fifth, because sundry credits, to which from the testimony, it appeared that the defendant was entitled, had not been allowed to him; sixth, because the negro girl, received by the complainant Harriet of the defendant, was credited at too low a sum; and, if the settlement was to be set aside, the complainant could have no right to said girl; seventh, because the rents and profits of the complainant Harriet, were fixed at an extravagant price; and were charged to the defendant when they were not received by him.

18th January, 1814.-KILTY, Chancellor.-The exceptions to the auditor's report being submitted on notes in writing, the proceedings in the suit have been considered; but the Chancellor has not fully made up his opinion on them.

On the first exception he is not satisfied, that the valuation recognized by the Orphans Court ought to be disregarded, and the value estimated from the evidence; but if this valuation should be taken as the rule, it may not apply to every year. On the third exception, the Chancellor is under the impression, that the defendant is answerable as far as a claim against his wife, who might have been obliged to account; provided any sum should appear to have been due before his guardianship commenced. It cannot be admitted, that settlements made by the Orphans Courts are in all cases conclusive; but they may frequently render it necessary to bring further proof of credits allowed by them. But when the balance

stated against a guardian on a final account is relied on by him, he ought to exhibit all the accounts, so as to shew the original charges on which it was founded.

The Chancellor is satisfied as he was on passing the decree to account, that the complainants were entitled to a distribution of the specific articles when they could be traced in the hands of the administrator or guardian. But he cannot confirm the account No. 4, reported by the auditor, in which he makes the allotment to the parties of different negroes by name. There are two modes by which this may be done in the Orphans Court. One under the act of 1798, ch. 101, sub ch. 11, sec. 16, by making the distribution on a day appointed and the other under the act of 1810, ch. 34, sec. 5, by the appraisement of commissioners, on which, if necessary, a sale may be ordered. The last act is not obligatory on the Orphans Court; but they may resort to the former, which in this case is considered preferable. And if this court has any jurisdiction or power in the case, it may adopt the modes prescribed for the Orphans Courts, or a course analogous to them.

It is therefore Ordered, that this court will on Thursday, the 3d day of February next, make a distribution of the negroes mentioned in the proceedings, and in the auditor's account No. 4; provided a copy of this order be served on the defendant Lyde Griffith, before the 26th day of the present month. The Chancellor will also, on that day, determine as to the other parts of the report, and decree accordingly. It is however to be observed, that the counsel for the defendant, relying possibly on the defence set up, has not given to the auditor instructions to state an account in any other manner, or shewn how the balance would stand, after excepting the negroes as specific articles, if his exceptions should prevail.

After which, the parties having had time to consider and prepare for the further argument of the case, on the suggestions of the Chancellor, they put in some further notes in writing of the arguments on which they respectively relied, and the case was again brought before the court.

12th February, 1814.-KILTY, Chancellor.-The Chancellor has again examined the proceedings in this case, and considered the additional notes put in for the defendant and since for the complainant.

The most material point in controversy is, that respecting the settlement in money, or in specific articles, as to which the Chancellor has already expressed his opinion, which is not altered. The objection to the credit of $150, on account of the negro girl, appears to be reasonable, inasmuch as the complainants, on setting aside the settlement or receipt No. 6, ought not to retain any benefit arising from it. The negro girl ought, therefore, to be returned, as also the land, which, not being conveyed, the auditor did not bring into the account. This will render necessary an alteration in the account No. 3, which is made in an account stated by the Chancellor marked No. 5, leaving the balance in money $235 83, instead of $41 88. The Chancellor does not perceive any thing in the evidence from which a greater allowance could be made for the maintenance of the complainant Harriet; nor, as the proceedings stand, can he direct any alteration as to the repairs, or the maintenance of the young negroes. And, with respect to the settlement of the guardian's account by the Orphans Court, he is under the impression, that the balance of £288 12s. 7d. supposing it not altered materially by the succeeding years, would give a value in negroes, estimated according to the appraisement, much greater than the one reported by account No. 4.

DECREED, that, on the complainant's tendering, or offering, on condition of an immediate compliance with this decree, to deliver to the defendant the possession of the nine and three-quarters acres of land, and the negro girl, mentioned in the proceedings, as part of the consideration from the defendant, on account of which the receipt, or release exhibit No. 6, was given, the defendant Lyde Griffith, do forthwith pay to the complainants, or bring into this court, the sum of two hundred and thirty-five dollars eighty-three cents, with interest thereon from the 19th day of December, 1813, till paid or brought in; and do also forthwith pay over and deliver to the said complainants the following negro slaves named and described in account No. 4; being one half of the personal estate in kind, to wit, one negro lad named Ben; one negro lad named Joseph; one negro lad named Roderick; one negro woman named Lucy; and one negro girl named Henny-the Chancellor having made the division or distribution in the manner stated by the auditor; because no cause has been shewn to the contrary, notwithstanding the service of the order of the 18th of January, on the defendant.

It is further DECREED, that the defendant Lyde Griffith, pay to the complainants their costs, amounting, as taxed by the register, to $224.

The defendant appealed, and the Court of Appeals, at June term, 1816, affirmed the decree.

After which the plaintiffs, by their petition, stated that although they had given the defendant notice thereof, he had not complied therewith. Whereupon they prayed process to enforce obedience, (b) upon which it was, on the 26th of June, 1816, ordered that an attachment issue as prayed; and it was issued accordingly.

The defendant, on being taken into custody and brought before the court, put in his answer on oath, in which he admits, that he had been served with a copy of the affirmed decree as set forth; but he states, that it was agreed that they should have a meeting, at another time and place, when the terms of the decree should be complied with on both sides; and the plaintiffs then admitted, that they had in their possession property to which the defendant was entitled, which they promised to deliver up; and they also admitted that the defendant was entitled to credits which had not been given to him; that the defendant attended for some hours on the day, and at the place appointed, and the plaintiff not appearing, he went home, soon after which the plaintiff came to the defendant's house, having the negro girl, mentioned in the decree, with him, for the purpose, as he said, of delivering her up; and soon after they went upon the land in the possession of Thomas Henry, a tenant of the plaintiff's, when the plaintiff pulled down a part of the fence, rode into the field, and desired the defendant to take possession of the land, if he knew where it was, observing, that a part of it was in that field, and another part in woods; that the plaintiff did not pretend to deliver possession of any particular part, or to turn his tenant out of possession, who then persisted in holding possession until the expiration of his lease in November following; the plaintiff soon after went off, taking with him the negro girl; that the plaintiff has been enjoined by this court not to dispute the possession of his tenant. That the defendant is a citizen of, and resides in Montgomery county, which has been the place of his residence for several years; and the attachment was served

(b) 1785, ch. 72, s. 25, repealed by 1818, ch. 193, s. 4.