delivered the opinion of the court.

The plaintiff below, by the replication, did not allege, as the gist of his action, the failure of the defendant to deliver *449In solido, the just proportion of the personal estate of the deceased; hut elected to claim the value thereof, as appraised in the inventory, and as appearing to be due on the face of the accounts passed by the administrator with the Orphans Court; and claimed also, a large sum of money, as the earnings and hire of the negro slaves, not accounted for in said settlement. This is a true exposition of the plaintiff’s demand, as exhibited on the face of the replication. At the trial, the plaintiff having proved the balance appearing due by such settlement, offered to prove the annual value of the negroes subsequent to the appraisment; claiming their hire, from the date of the letters of administration until the institution of this suit.

To this proof and claim, the defendants objected, and contended, “that if the plaintiff was to receive the value of the negroes, at the time of the appraisement, and according to the appraisement, he could not claim the hire of the negroes afterwards.” But the court instructed the jury, that under the pleadings in the cause, the plaintiff was entitled to recover, not only the proportion of the estate to which the said Elizabeth was entitled, according to the settlement, hut the hire of the negroes with which the defendant was charged in said settlement, from the granting of the letters of administration to the commencement of this suit.

The hire of the negroes, with which the administrator had debited himself, was continued down to the year 1827, inclusive. This instruction of the County Court is not marked with that perspicuity and precision which would preclude all question or doubt, as to what they meant to decide. If they intended to direct the jury, that the proportion of the estate to be recovered, was damages for the nondelivery in solido et genere, then they were in error, because the pleadings in the cause did not warrant such a recovery. If their meaning was, that such proportion should be that which appeared due by the settlement, (which embraced the appraised value of the negroes,) then the court erred, because the the defendant is not liable for both the *450appraised value, and hire of the negroes. A plaintiff, who* in a ease like the present, in consequence of the delinquency of the' administrator, in not settling up and distributing the estate in a reasonable time, charges him in a suit on the administration bond, with the appraised value of the property, can only recover it with interest thereon. If the distributee elects to claim the hire, or earnings of the negroes, not distributed nor sold, and accounted for accordingly, he-must allege, as part of the gravamen of his action, not the non-payment of their appraised value, but their non-delivery. By recovering such their value, he casts upon the administrator the title to the property, from the period to which the recovery relates; and from that time can have no claim to the hire or earnings. Upon these principles, the rights of the parties are preserved, and justice is administered to all. Every reasonable advantage is extended to the distributee^ by affording him the privilege of electing his remedy. To permit him to claim all the profits arising from the estate, and then throw it upon the hands of the administrator at its appraised value, it may readily be imagined, would be fraught with results.of the grossest injustice. As for example, the estate might consist of negroes, who, being in the prime of life, might be hired out until their value was reduced more then fifty per cent. Could it be insisted, that under such circumstances, the distributees might exact from the administrator, the inventory appraisement of the negroes, and all their subsequent earnings. The law would not tolerate a proceeding so glaringly unjust. Edelin vs. Jackson, determined by this court at June term, 1830, has been referred to as warranting the opinion of the County Court. But the decision there does not in the slightest degree conflict with that now given in this court. The only questions there adjudicated were, that the hire of the negroes received by the administrator was assets in his hands; that it could not be recovered at law by a distributee, unless the issues were so formed as to embrace it. *451That in the case then under consideration it was not covered by the issue.

This discloses our view of the first bill of exceptions. The second exception presents a different question. The defendant having filed an account in bar, charging the board, clothing, and expenses of Elizabeth, (for a number of years after the intestate’s death,) to which non assumpsit and limitations were pleaded; the plaintiff at the trial offered evidence, that the intestate died seized of a real estate, which descended to his children, of whom the said Elizabeth was one, and that the defendant, Burch, took possession of and cultivated the same, and received the crops therefrom.

The object in offering this testimony, and the grounds upon which it was objected to, are stated in the bill of exceptions. The court admitted the proof, and in the propriety of their so doing, we cannot concur with them in .opinion. There was nothing in the pleadings to which such testimony was applicable.

If such a defence existed to the account in bar, it could not have been made in the manner attempted, without subverting the whole doctrine of set-off, and filing accounts in bar, in courts of law, as practiced in this State. It could not. have been anticipated by the defendants, nor could they be expected to have come prepared to meet it. With as much propriety could the defendants’ account have been given in evidence on the trial, without being pleaded or filed in bar, as could the testimony thus offered by the plaintiff. But we wish not to be understood, as intimating that the plaintiff could have sustained the defence attempted to be made, even though pleaded by way of set-off, or filed as an account in bar. In occupying the real estate, there is nothing in the evidence in the cause that presents the defendant, Burch, in any other character than that of a mere trespasser, except the charges he has made against himself in his settlements before the Orphans Court. But these entries are no evidence of any contract to account for, or *452apply the profits in any other mode than that pursued by the defendant. It has been urged, that Elizabeth was an infant, and, therefore, although Burch was, in fact, a trespasser, yet, in contemplation of law, he must be looked upon as her guardian, and account for the pi’ofits of her real estate in that character. The brief answer to this suggestion is, that the evidence of infancy does not appear in the record, and if it did, that this salutax-y fiction of law does not extend beyond the confines of chancery jurisdiction.

But conceding that the court were right in admitting the evidence, their instruction was clearly erroneous, as they submitted to the jury the finding of a fact, of which no testimony legally sufficient for that purpose, had been adduced before them. They authorized them to find that the profits of the real estate had been applied to the maintenance of Elizabeth, her brothers and sisters, when not a scintilla of proof had been offered to show such application. On the contrary, instead of thus applying them, the accounts settled by the administrator with the Orphans Court, showed that he had charged himself with them as part of the personal estate, and had either paid them away in satisfaction of debts and disbursements, or held them still in his hands, as part of the general balance of the intestate’s personal estate.

If, however, there was proof of such application, the instruction given by the court for another reason could not be supported. The jury were told “ that if they were of opinion that the profits of the real estate had been received by said Burch, and applied to the maintenance of the plaintiff, and her brothers and sisters, her share was a legal set-off against the claim of the defendant, stated in his account in bar.” Should it then have appeared to the jury that nine-tenths of Elizabeth's share had been applied to the maintenance of her brothers and sisters, and but one-tenth to that of herself, yet under the court’s direction the whole amount of her share must have been deducted from the defendant’s account in bar. The word “ set-off,” we do not understand as having been used by the court, in its legal or *453technical sense, but as synonymous with abatement or reduction. A set-off, to be available as such, must always be pleaded.

Dissenting from the County Court on both of the bills of exceptions, wo reverse their judgment.

judgment reversed and procedendo awarded.