delivered the opinion of the court.

... It was determined by this court, in the case of Hall vs. Griffith, 2 Harr, and Johns. 485, that an administrator was bound to account in the Orphans Court, for the hire and use of negroes; and his liability as administrator being thus ascertained, it follows, that hé and his sureties are liable on his bond for a-failure, in this respect, to discharge his duties. This decision does not declare, in express terms, the. responsibility of. the administrator, in this’réspect, to arise at any particular period, whether from the *281session, shall be assets belonging to the estate, and shall be accounted for by him.

But the decree in the ease above referred to, does not leave any room to doubt, but that before the law of 1818, ok. 217, the administrator was liable for the hire and use of negroes, previous to the time allowed him by law, to pass his final account; because the court there adjudged, that he should account for the hire and use, without any limitation, or restriction, as to time. Had the law been otherwise, the decree would have ascertained the period, when the administrator’s liability commenced. The act of 1798, having made negroes assets, the hire, after the death of the owner, became assets also, for it Was an incident, or profit springing out of that, which was declared assets, and partook of its nature and character in the -same manner, as would the interest arising after the death of the obligee, in a bond given to him, in his life time. The administrator would be justly chargeable for the use of the negroes, if such charge were within the issue to be tried. But there is no issue joined, which brings this question before the jury. The sole question, to be tried under the pleadings, was, the verity of the plaintiff’s replication, which alleged an inventory returned by the administrators de bonis non, and that after sundry disbursements made, there remained a balance of said inventory, in the hands of the administrators, to be distributed, and that the plaintiff, as one of the distributees, was entitled to one-fourth part thereof. The plaintiff, upon this state of the pleadings, could not insist on charging the defendants, for any thing which was not contained in the inventory ; because, nothing beyond that was claimed; and of course, the hire of the negroes, which had been accruing from the date of the inventory, could not become the subject of inquiry, and of charge in this suit. But it is supposed, that the act of 1825, cli. 117, precludes an inquiry into the correctness of the prayer, upon the ground, that the attempted charge is not within the issue; that act, shutting out an investigation *282into any point not presented to the court below. But we conceive, that the prayer necessarily raised this point in the court below ; for the plaintiff’s claim, that the defendants should be charged for this use, in addition to the sums charged in their accounts in the Orphans Court; or in other words, that they should be charged with this sum, over and above the amount of the inventory, as returned and charged in their accounts; which presented the question, not only, of the general liability of the administrators to such a charge, but their responsibility under the forms of pleading adopted.

judgment reversed and procedendo awarded,

N. B. This case was decided in 1829, and accidentally omitted to be-reported at that time.