By the decree made in this case, reported in Rice’s, Eq. R. 369, it was held, that the defendant must account for the complainants’s slaves, while in his possession as “one who had discharged his trust in honesty and good faith.” At the references under that decree, evidence was offered by the complainants, of what would probably be the annual hire of such negroes, during the nineteen years, in which they were held by the defendant, and on the other hand, the defendant attempted to shew, what had been actually realized; and for this purpose, offered testimony as to his situation, when his fiduciary relation commenced, his habits of life, the estate he had accumulated when his trust ceased, and the proportion which the capital of the complainants bore to the entire capital employed. The defendant proposed to pay a specific sum, as a larger amount than that to which the complainants would be entitled on these principles. The commissioner, admitting that the result would be more in accordance with justice, than by any other rule which could be adopted, felt himself controlled by the former decree, or because such testimony would not furnish a general rule. In reforming, the report of the commission*341er, neither the Circuit nor the Appeal Court should he understood to have fixed any specific sum for which the defendant was liable. While stating that the testimony must necessarily be varied according to the circumstances of each particular case, the Circuit Court declare, that the proof tendered by' the defendant was properly admissible, and that if the commissioner, acting on-that testittiony, had reported the sum tendered as á full account, on the principles heretofore established, it would have been no violation of any general rule of evidence, or of any former decree in this particular case. But it was perfectly competent for the . complainants, under that decree,- to shew, that the defendant had made more, or that, exercising ordinary diligence and skill, he ought to have made moré; or that the proportion offered to the complainants was/not according to their interest. The report was sent back to the commissioner, additional testimony was received, and the commissioner reported the sum of $3,698,28, as the amount due by the defendant, on the principles of the decree of June' 1840, as affirmed by the Court of Appeals. It is supposed, that the conclusions of the commissioner are merely conjectural. But this is not perceived. The proof must be according to the purpose, to' be accomplished. The object is. to ascertain the profits realized by a bona Jide trustee. What the defendant originally possessed, and what he left at his death, are ascertained with precision.. His habits of extreme frugality, even to .parsimony, are beyond doubt. This would not be satisfactory, if he made little or nothing. But the complainant’s, slaves consisted of a man and his wife, with three children, whose entire annual hire was estimated at $71. Under the supervision of the defendant, they had increased to ten, and their share of the profits, during the time, is estimated at $3698. In this state of the proof, we think the defendant should not be compelled to account for the annual hire. After carefully reviewing.the testimony, embodied in the report of the commissioner, we are of opinion, that the actual profits realized by the defendant have been ascertained with reasonable accuracy. This Court resorts very reluctantly to the principle of charging a trustee with the annual hire of negroes committed to his custody, under such *342circumstances. In most cases, it would be ruinous to tlie trustee, and if the rule were once understood, it would soon induce consequences, not less disastrous to the interests of the cestui que trust.

It is objected to the report of the commissioner, that no account has been taken of the expenses of the defendant’s family. But on the other hand, no charge is made for his own services, or for the rent of the land, in which the complainants had no interest. On the whole, adverting to the principles declared in the former decree, the Court are quite satisfied, that the amount reported in favor of the complainants, is more than their proportion of the profits, realized by a faithful agent; and that if the principle adopted by the commissioner cannot be of general application, it is because few defendants, at the end of a series of years, would be so fortunate in their testimony, as to frugal management and satisfactory results. In the judgment of the Court, the exceptions to the commissioner’s report should have been overruled, and the report confirmed, and it is now so ordered and decreed.

BENJ. F. DUNKIN. .

We concur.

dissenting. I do not know that the complainant ought to complain of the result, at which the Court have arrived. It may be, that he will receive more than he is, injustice, entitled to, and it may be less; but I must, and do, most respectfully, enter my protest against the means by which the Court have attained the result.

Since the explosion of what was called the £10 rule, as the measure of the annual hire of full task slaves, the only means left of attaining it are, 1st. actual profits, with reasonable diligence, and 2nd. what, under proper care and attention, they ought to have annually earned, under the peculiar circumstances of the case.

The accounts stated by the commissioner profess to be according to the first rule, excluding the second together, but on looking into the report, it will be found, that the actual profits do not enter into the account at all.

*343Thomas Rainsford, has died pending these proceedings, and although his name is retained in the title of the case, the proceedings are now against his executors, who have been made parties. As an evidence of actual profits, the defendant exhibited inventories and appraisements of the estate of John Rainsford, devised to Thomas Rainsford, and of the estate of Thomas Rainsford, which shows that the acquisitions of Thomas Rainsford, exceeded the property he acquired by his father, John Rainsford’s will, by about $17,900 ; and taking this as the actual profit, the commissioner has apportioned the fund amongst the parties, according to the number of slaves employed. But it will also be observed, that in stating this account, no notice is taken of property, to the value of about $7000, bequeathed by John to Thomas Rainsford, employed in the production of what is assumed as the actual profits'; no allowance is made for Thomas Rainsford’s services, in managing the concern, nor for the use of the lands on which the slaves were employed, nor, for the labor of several slaves, acquired by Thomas Rainsford on his second marriage. On the other hand, there is no charge against Thomas Rainsford, for the subsistance of himself and his family, and the education of his children. In short, it will be found on the examination of the report, that the actual income of the joint capital was a mere trifle, and that the accounts were made upon an offer of a gross sum, tendered by the defendant, with some fanciful additions by the commissioner, which the complainant refused to accept. It may be, that ample justice is meted out to the complainant, by the report of the commissioner and the judgment of the Court; but I have grown up in the belief that justice is not arbitrary, but must be measured by rule.

DAVID JOHNSON.

Wardlaw & Wardlaw, & Carroll, for the motion.

Bauskett, contra.