This is a suit for an account instituted 24th April, 1848.

The account was filed 27 th November, 1848.

Plaintiffs, the heirs of Job Bass, opposed the account on the following grounds:

1st. “That for the year’s 1839, 1840, 1841, and 1842, the executor had in his hands, as will appear from the accounts of those years, about twenty thousand dollars, for which he allowed no interest, except for the year 1839.”

This claim of interest is based upon the Act of 1837, page 96, section 6.

The record shows that Chambliss rendered three accounts of his administration — the first on the 7th April, 1840, was homologated by judgment of court, on the 27th April, 1840, and showed a balance in favor of the estate of $20,396 26.

The second account was rendered on the 3d April, 1841, and was homologa-ted by judgment of the '14th April, 1841. This account showed a balance in favor of the estate of $12,247 40.

The third account of executorship was filed the 7th April, 1842. It showed a balance in favor of the estate of $6,636 58. A judgment of homologation of this third account was rendered on the 20th April, 1842, which does not appear to have been signed.

The amounts received at various times between the 10th January, 1840, and the 16th January, 1842, by Chambliss, as executor, as shown by those three accounts of administration, are in the aggregate $56,460. But it is not considered by us that any interest can properly be claimed from the executor therefor, except upon the balance shown by the last of the three accounts, to-wit: $6,636 58. The first- and second accounts have been homologated by judgments signed: and even there has been judgment of homologation rendered upon the third account, which has not been signed indeed, but that appears to have been through inadvertanee, for there was no opposition made to it, nor is it now pretended that there was any error in it Each account commences by crediting the estate with the balance shown by the preceding account; and the interest on the last balance only runs, under section 6 of the Act of 1837, from April 7, 1843, being one year after the filing of said account, by reason of *383the executor’s failure to file another account of administration as required by that section. The rate of interest under the statute would be ten per cent., but the plaintiffs only ask for eight per cent., which is accordingly allowed.

2d. The plaintiffs oppose the account, secondly, because the executor has not credited the estate in his account of 1840, with the interest on two notes collected, and which, it is alleged, bore interest from their date. There is an error of no importance in the date assigned by this objection to the account in which the collection of two notes said to be found. It is in reality the account of 1841, not that of 1840.

The items of that account alluded to, read as follows:

“ By amount received of Govey Hood, one thousand dollars, - $1,000 00

‘By amount of my note which was given to D. O. Barton, as dative

executor, three thousand dollars, ..... 8,000 00

The only evidence bearing upon this ground of opposition is found in the testimony of Govey Hood, who swears as follows: “ that he paid interest, at ten per cent., for two or three years from the maturity of the note until it was collected.” And in another part of his evidence, he says that he paid Cham-bliss as executor of Bass, interest on the note “from its date to its maturity, or from the time it was given until it was paid.” ¥e view this evidence as fixing the receipt of interest on the Govey Hood note upon Olicmíbliss. He is bound for that interest as cash received by him on the 7th April, 1840, amounting to $-, and this item must bear eight per cent, interest.

We charge Chambliss likewise as having received interest at ten per cent, on his own note on the 4th April, 1839, date of his receipt to the executrix of Barton, amounting to $-, and this item must bear interest as the other items of cash received and not accounted for.

We also charge defendant with a note of H. Prentice for $8000, and with interest at five per cent, on the same, as received by him on the-June, 1840. This item likewise to bear interest.

3d. The plaintiffs object, thirdly, that defendant has charged commissions, wrongfully, in the three accounts of 1840, 1841 and 1842, as well as in the account filed in 1848, upon moneys collected by him, instead of charging them upon the amount of the inventory that remained to be administered.

We think this obj ection unfounded. Plaintiffs further charge under this same head of their opposition that the defendant has charged certain commissions twice. This objection seems well taken. The amount thus charged twice in this account, is $1900 72.

4th. Plaintiffs object, fourthly, to a charge of $82, for commissions on a sum of $4000, said to have been collected, but which does not appear to have been collected. This objection is admitted to be correct.

5th. The fifth ground of opposition concerns a charge of $278 23 for overseeing, &c., which is admitted to be erroneous.

6th. The sixth ground is a double charge of fifty dollars for cost of a transcript. This objection is sustained, as well as that

7th. In ground seventh, being twenty dollars error of addition to prejudice of plaintiffs.

8th. The eighth ground of opposition relates to a charge of seventy-five dollars for three trips to Natchez and back, on business of the succession. There is no proof in support of this charge, which is therefore disallowed.

9th. The ninth ground of opposition alleges that an item of $92,734 55 to *384the credit of the estate for sales of negroes, &e., on Point Look-Out plantation, in April, 1848, is too little by $1000.

This item is only put down in the account as approximate. The correct amount of these sales is stated in amended account filed on the 18th May, 1852, to be $95,577 70. The difference on this item is therefore $2,843 21.

10th. The tenth ground "of opposition objects to a charge made by the executor of $5000, paid D. 8. Staey on the 8th May, 1838, which the opposition correctly states, was so paid, not by Ghambliss, the defendant and accountant, but by D. O. Bailón, his predecessor in the executorship. The opponents allege that defendant should not be allowed to credit himself with moneys paid by Barton, unless he likewise charges himself with the assets of the estate received by Barton, and not accounted for; and pray that the account be corrected by charging Ghambliss with the sum of $35,000, for moneys so received by Barton, and by giving Ghambliss credit for all sums paid by Barton for which the latter has not had credit in the account rendered by him to the late Probate Court.

It is in proof by an account of executorship filed by Bwi'ton on the 17th January, 1838, and homologated the 1st February, 1838, that the balance due by Barton to the estate of Bass at that date was $30,771 39. Ba/rton died the 4th January following, (1839). On the 4th February, 1839, Ghambliss qualified as dative testamentary executor of Bass, in place of Barton, deceased.

It was certainly Ohambliss’s duty to have used all legal means to make the balance above stated out of Barton's estate. Perhaps the reason he did not do so, was the fact that Barton's widow, who was one of Job Bass's heirs, and entitled to one ninth of his estate, entered into a contract of guaranty with Gha/mbliss, a few months after her husband’s death, by which she bound herself in the most unqualified manner, to save Ghambliss harmless for or on account of the balance due by her late husband to her father’s estate, and pledged her portion of the inheritance, by covenanting that Ghambliss might retain in his hands the share or portion of said estate coming to her, on account of the indebtedness of Barton to the estate. As Bass's estate, per inventory, was about two hundred thousand dollars in value, the proportion coming to this heir, Mrs. Bm'ton, might reasonably have seemed equal to the balance due by Mr. Ban-ton to the estate at the time of his death. For it is not proved that any moneys came into the hands of Barton after the rendition of his account homologated on the 1st February, 1838; and upon that balance, Barton had paid to Mr. Staey, as alleged in the ground of opposition under consideration, a sum of five thousand dollars ; in addition to further credits allowed Barton of four thousand dollars, by the judgment of the District Court, which are not complained of in this court, and still another credit of $3000, allowed by the present judgment for a note of Horace Prentice. The true balance, after making these allowances, due by the estate of Barton to the estate of Bass, is more particularly shown by the account incorporated in this opinion. We are of opinion that Ghambliss should be charged with this amount, and should have judgment, over against Mrs. Barton, called in warranty. But we do not think this portion of our judgment against the defendant should carry eight per cent, interest, as ordered by the judgment appealed from. This is -not money collected by the executor, and which he has failed to deposit in bank or account for. It does not therefore come within the provision of the Act of 1837, which is a highly penal statute, and should be strictly construed. It is even uncer*385tain how much, if any, of this balance due by Barton's estate will have to be disbursed by Chambliss's representatives; for although Chambliss rendered himself liable to make good Barton's deficit, yet it will be equitable and necessary, to stay execution of the portion of the judgment against his estate arising from this cause, until it be ascertained what is the precise sum coming to Mrs. Barton in settlement of her father’s estate — defendant being clearly entitled to a credit for that amount, under Mrs. Barton's warranty. The balance of Bcorton’s account of the executorship after giving credit for the amounts of the three notes of P. J. Chambliss, H. Prentioe and Corey Hood, and the Stacy receipt, in a debt due by the succession of Barton to the succession of Bass, and as such, bore interest at the rate of five per cent, from Barton's death, by the Article 989 of the Code of Practice. For this interest Chambliss is responsible upon the Barton balance, in their double capacity of surety of Barton, and of his successor of Barton in the executorship of Bass.

The very peculiar feature of this portion of the cause is that Chambliss must be viewed as having paid the amount for which he was responsible as surety of Barton to a person who was certainly entitled to some portion, if not the whole of the amount paid, as being one of the heirs of Bass; that person at the same time being bound by contract to hold Chambliss harmless from his said responsibility.

We are of opinion that the Barton balance of account of executorship, is entitled to the following credits:

Gash paid to Mr. Stacy, - - - - - $5,000 00

The following notes turned over by Barton’s executrix to

defendant, and by him collected — Covey Hood, $1,000 00

Chambliss, 3,000 00

H. Prentice, 3,000 00

■- 7,000 00

Total,.$12,000 00

Together with the interest collected by Chambliss, on those notes.

The eleventh ground of opposition is too vague and general to require any notice.

An amended opposition was filed on the 1st June, 1849, alleging that the defendant had not given credit for two drafts, one of $2,500, and one of $690, paid by Atchison. Annexed to this opposition is a statement signed by defendant. A comparison of this statement with the two accounts filed by defendant in April, 1842, and November, 1848, will show that all the drafts paid by Atchison, are included in one or the other of them, except that of $690, received the 5th April, 1842, with which the defendant must be charged.

This suit, after the account and oppositions filed, dragged along in the District Court until, in December, 1850, an agreement was entered into by the parties and put on file, by which the case was to be continued for another year, provided the administrators of defendant, (who had died in the meanwhile,) would pay $15,000 in cash, and as much more in city acceptances, ($30,000 in all,) on or before the 20th January, 1851. This was done.

On May 18th 1852, defendants, with leave of Court filed an amended account in which the only difference from the account filed at the begining of the suit by Chambliss was, the omission of several of the items objected to by the plaintiffs on the debit side (which have been already noticed in their proper place,) the insertion on the debit side of an item of $1200 for fees of Messrs. *386Bemiss and Bryan, for filing account and settling tlie succession, and the insertion on the credit side of the sums paid the heirs since the institution of the suit, being- $30,000 to Sparrow & Short, attorneys, and $556 60 to Benton, assignee.

The balance shown by this amended account to the credit of Bass's estate was $1,368 98.

Eight days after this amended account filed, the parties went to trial; and on the second day of the trial, viz: the 27th May, 1852, defendant’s counsel tendered still another amendment, composed of a few items, of which the only one that is necessary to notice is, a very obvious error of $1000, in computation of commissions of two and a half per cent, on the amount of Sheriff’s sales. The District Court properly allowed this amendment.

The fee of $1200 allowed Messrs, Bemiss & Bryan in the amended account of 18th May, 1852, was objected to, and properly rejected by the District Court.

An heir who after waiting for years, is obliged to sue an executor for an amount, ought not to pay the counsel employed to defend such a suit. It is to be supposed that he has had to employ counsel to prosecute the suit, whom he will have to pay. This is an expense which he has incurred through the fault of the executor, and we see no propriety in doubling that expense to him, by charging him with the fees of counsel who defend the suit.

Upon a review of the evidence and law of the case, we state this account as follows:

A.

*387Statement of Account with, Interest, R. J. Chambliss, Dative Testmnenlm'y Executor, with Succession of Job Bass.

*388Statement of Account with Interest, R. J. Chambliss, Dative Testamentary Moeeutor, with Succession of Job Bass.

*389B.

Statement of Account with Interest, D. 0. Barton, Dative Testamentary Executor with the Succession of Job Bass.

It is therefore adjudged and decreed, that the judgment of the District Court be reversed; and it is further decreed, that there be judgment in favor of plaintiffs against the legal representatives of Robert J. Ghambliss, namely, Samuel L. Ghambliss, John 3. Martin and Mrs. Mary E. Martin, administrators of the succession of Robert J. Ghambliss, for the sum of $42,931 79 principal, with interest on $25,247 62 of said amount at the rate of eight per cent, from the first of January, eighteen hundred and fifty-one, until paid; and on $17,684 17 of said amount, at the rate of five per cent, from the fourth of January, eighteen hundred and thirty-nine, until paid; and that there be judgment in favor of the administrators of the said R. J. Ghambliss against W. M. Benton, in his capacity of executor of Mm'tha A. Bass, for the sum of $17,684 17, with interest at five per cent, per annum from the fourth of January, eighteen hundred and thirty-nine, until paid; that the plaintiffs be referred to a Notary Public or Parish Recorder, to be named by the District Judge of the parish of Carroll, for the purpose of making a partition and settlement of their respective rights as heirs of Job Bass, deceased; that execution be stayed upon $17,684 17, and the accruing interest on said sum as above, of the judgment herein rendered against the estate of Ghambliss, as well as upon the whole judgment against the estate of Martha A. Bass, until it shall have been ascertained by said notarial partition and settlement what is the amount of the rights of Martha A. Bass, as one of the heirs of Job Bass, her father; that the amount of said rights be credited upon the judgment stayed as aforesaid, and execution be issued thereupon for the surplus only, after crediting the amount of said rights. It is further decreed, that the costs of the court of the first instance be paid by the appellants, and those of the appeal by the appellee, and it is decreed lastly, that the sum of one hundred dollars *390be allowed to the auditor, W. O. Horner, by this court appointed, for his services herein, and that said sum be paid by the appellee.

dissenting. As there are some points in which my views do not accord with those of my brethren, I have thought proper to prepare a separate opinion.

The discussion in this case involves a subject of groat practical importance, the duty and liability of a person charged with the administration of a dead man’s estate. The plaintiffs are the heirs of Job Bass ; the defendant, the dative executor of his last will. This suit was brought by the heirs about nine years after his appointment, to compel him to render an account, and more than six additional years have since been consumed in litigation.

Before I enter upon the discussion of the legal questions presented in this cause, I deem it necessary to make a brief statement of the prominent facts to which the law is to be applied in determining the nature and extent of the defendant’s liability.

Jol) Bass, of whom these plaintiffs are heirs, died nearly twenty years ago. In September, 1835, D. 0. Bwrton was appointed dative executor of his last will, the executors named in the will having declined to act. The estate, with the exception of two negroes valued at $2400, consisted in nine mortgage notes for a principal sum of $185,000, maturing in annual instalments on the 1st day of January, from 1837 to 1845 inclusive. They were secured by'a mortgage of a valuable plantation and slaves in the parish of Carroll, sold by Bass to Hisbert, the maker of the notes. The administration of such an estate, it will be observed, was a matter of extreme simplicity. Nothing more was to be done than to receive payment as the notes matured, or if not punctually paid, collect them by suit, and in due season distribute the lunds among the children and grand-children of the testator named in the will.

Chambliss was the surety of Ban'ton on his official bond. During his life, Barton rendered two accounts, the last of which exhibits a cash balance in his hands, on the 17th day of January, 1838, of $30,771 39. On the 4th of January, 1839, Ban'ton died, and an inventory of his estate was made on the 21st January, 1839, at the making of which Chambliss was present, and signed as a witness. This inventory exhibits land valued at $17,056, and contains receipts and bills amounting to $13,010, among which were stated, “ one due bill of Covey Hood, for $1000, dated June the 21st, 1838“ one note of H. Prentice for $8000, dated April 24th, 1837;” “note of Robert J. Ohamibliss for $3000, dated March 28, 1837 “Receipt of Rowland, Smith & Go. $1000 of Planters’ Bank of Natchez, conditional, without date.” The inventory also exhibited as on hand, sovent3r-five bales of cotton valued at $3750, and twelve hundred bushels of corn valued at $804, No cash is mentioned in this inventory, but there is testimony showing that Barton, shortly before his death, had in his possession a large amount of bank notes contained in a package, and that the widow, Mrs. Barton, had a large amount of bank notes, which appear to have boon the same, after his death. It was upon the same evidence, our predecessors hold, in a suit brought by a creditor of David O. Ban'ton, that his widow was personally liable, having converted to her own use property belonging to the community which existed between her and her husband. See Lynch v. Barton, 12 Rob. 117.

In February, 1839, Ghambliss was appointed dative executor of Bass's estate. *391On the 4th of April, 1839, we find him receiving, in his official capacity, from Mrs. Bm'ton in her capacity of administratrix of Barton's estate, the notes of Hood, Prentice and Ghambliss, and other documents, which are described in the receipt signed by Ghambliss, as “ notes and papers belonging to the succession of Job Bass deceased, and which were inventoried in the estate of said JD. 0. Barton deceased, the said inventory being amended by an order of the court of probates, and an order that they should be given up.” We have not evidence of the tenor of Chambliss's note, but there is a copy in evidence of Prentice's note, so called in the inventory and in Ghambliss's receipt. It is in these words:

“ $3000, Providence, April 24, 1837. Due Doctor D. 0. Barton, executor of Job Bass, deceased, three thousand dollars, value received. H. Prentice.”

In June, 1839, an agreement in writing was made between Ghambliss and Mrs. Barton, in which she recites that Bcm'ton, her deceased husband, had been the executor of the estate, of her father, Job Bass ; that there would probably be a large deficit for moneys that came 'into his hands for Bass's estate ; that Ghambliss had become his official surety, without any other motive than a disinterested friendship to Barton and herself; that she was desirous to relieve the estate of her husband from embarassment, and “ avoid lawsuits or any manner of litigation in regard thereto, or relative to the aforesaid deficiencies,” and also desirous to relieve Ghambliss, and hold him harmless from his suretyship; that Chambliss was now executor of Bass's estate, and she, as an heir, was entitled to a porton of the estate in money, the amount of such portion being yet not exactly known. She then agrees that he may receive for her the proportion, whether in money or otherwise, which may come to her as heir, from her father’s estate, and hold the said proportion as the same may be divided unto the heirs, in his hands, or a sufficient amount thereof, to secure and indemnify him for his suretyship, and also to secure and indemnify the estate of Bass from loss by the defalcation; and she authorizes him to pay to the succession of Bass, out of her portion as received, the said deficiency. The argument concludes with a full covenant to hold him harmless from any loss by reason of his suretyship.

This Barton deficit is now estimated to be $-, he, Barton, having paid $5000 to a portion of the heirs, and a credit being allowed for other items to the amount of $-.

In 1840, 1841 and 1842, Ghambliss filed accounts. They are entirely silent with regard to the Barton deficit, and also the note of Prentice. The account of 1841 credits the estate, under date of 7th of April, 1840, with $1000 only, amount received from Hood, and $3000 only, which was amount of principal of his own note. It is proved, however, that he made Hood pay him interest at ten per cent, from the maturity of the bill, to wit, its date, until it was paid. It is also proved by Prentice, and by other evidence, that the note of Prentice was settled with Ghambliss on the 9th July, 1840, by assigning to Gham-bliss an invoice of goods, and by transferring to him, as executor, a claim Prentice professed to have against Mrs. Barton, for which a suit was then pending by Prentice against Mrs. Barton for a sum of $2821 41, which sum was credited on the Prentice note. It would seem from the testimony of this witness, that the settlement blended the claim as executor, with Ghambliss's individual accounts with Prentice. At all events, the value of the invoice of goods which the witness, in a subsequent part of his testimony, says he sold *392to Chambliss, is not shown, nor any where accounted for; and as to the assigned claim against Mrs. Barton, it is not shown that he took it under judicial sanction, nor with the authorization of the heirs. Chambliss prosecuted the Prentice suit against Mrs. Barton, and it resulted in a verdict in favor of the defendant, on the 30th of April, 1842. So that the claim thus taken in settlement of the Prentice note, proved worthless.

After the 7th of April, 1842, Chambliss filed no further account, until he was called upon to do so by this suit, which was brought on the 12th of April, 1848. In the meanwhile, besides the cash balance of $6,836 58, unpaid by him as in his hands on the 7th of April, 1842, he received large sums of money, partly by voluntary payments received from the mortgage debt and partly by suit upon the mortgage; and he also paid, during this interval, various sums of money to some of the heirs, on account of their interest in the estate.

The petition of the heirs presented a history of the administration of the estate, as far as they had been made acquainted with it, referred to the Hood and Chambliss notes as transactions obscure and unexplained in the account, charged him with omission of duty in having so long failed to present his annual accounts, and called upon him to file a full account of his administration. They also asked that he be decreed to give “ the dates of reception of moneys coming into his hands, and the dates at which the same had been paid out, on account of the succession, or to any of the heirs, and that in said account he be decreed to raise an interest account, or show in what bank the funds in hand at the end of each year, not necessary for the current year’s expenses, have been deposited; and if not deposited, that ho be decreed to pay eight per cent, on all sums in his hands, at the beginning of each year, that should have been deposited as required by law. They also charged, that he had received the amount of funds which were in Barton's hands at his death ; but if he had not actually received them, he was liable for them as Ban-ton's official surety, with eight per cent, interest from the 1st of February, 1839, until paid. They also prayed for a partition, and for such other and general relief as might seem just and equitable in the promises.

On the 8th of May, 1848, the defendant, Chambliss, appeared and asked “further time to render his account as prayed for by plaintiffs,” assigning for cause, that he had not had time to do so since the demand was made ; that there was a great number of papers to examine and calculations to make, which required much time and labor; also, that the succession was yet unsettled, that there were payments yet to be made, and property yet unsold, mortgaged for debts due to the succession ; that he was proceeding to sell said property, in May, 1848, for said purpose, when ho had been arrested by an injunction of third parties; and concluded with a prayer that no further action be had until he could, by said sale, collect all that was duo to said succession, and render a final account. It would seem the application for time was resisted by the plaintiffs; but at all'events, on the 9th May, 1848, an order was made on the cause in these words: “By consent of the plaintiffs in this case, made by their counsel in open court, and of the defendant, Robert J. Chambliss, now also in open court, it is ordered, that the said defendant file his account as prayed for, on or before the tenth day of October next, and that this cause be continued.”

On the 27th November, 1848, the executor filed an account, on which, however, he did not account for the Barton defalcation, nor show how he had kept *393the trust funds, nor raise an interest account as prayed for, and, as the heirs with some plausibility allege, he had consented to do. The account was accompanied by a petition of the executor, praying that the account might be deemed provisional, in consequence of a litigation pending, by which the collection of the residue of the estate was tied up. Upon the application of the executor, the cause was continued, and two months was allowed the heirs to file their opposition to the account. This they did in December, 1848, and in addition to making the various objections and claims stated in the opinion of Mr. Justice Buchanan, they declared their willingness to take their respective portions of the uncollected mortgage debts,, alleging that as there were now no debts to pay, there was no necessity that the executor should act any longer, except to divide the funds he had received. At the next term of the court, in May,. 1840, Ghambliss filed exceptions, evidently intended to procrastinate a hearing. They were overruled, and he then moved- a recusation of the District Judge. This also was overruled, and he then applied for a continuance until the next term, on the ground of the sickness of one of his counsel. The application appears to have been successful. The cause went off until the July term, when he filed a new exception, praying all the proceedings in the suit, subsequent to the filing of the original petition of plaintiffs, be set aside as null and void, on grounds too frivolous to deserve any comment. No action on this motion appears of record; but the court adjourned without disposing of it, or trying the cause. Subsequently, from the fact that the successor of the District Judge refused to sit in the cause, it was continued from time to time, and at last was brought to trial in May, 1862. Meanwhile, in 1850, Ghambliss died, and his executors were made parties. They made a payment in 1851, to a portion of the heirs on account; but only a portion of this, to wit, $7500, was paid in money, although a good while had elapsed, and they had had control of the crop of Chambliss's plantation. The residue they paid in drafts on their merchants, payable at distant dates. In the inventory of Ohambliss’s estate, no money is found, although there is a- considerable amount of notes and due bills held by him at his death, and neither he nor his executors have shown where or how he kept the trust moneys of this estate. That he received large sums from time to time, his own accounts show. If he did not use it, it is pertinently asked by plaintiffs, where was it at the time of his death ? If ho had ever deposited it for safe keeping in the bank at Providence or elsewhere, the certificate of deposit or receipt would have shown it. It seems to mo next to a moral impossibility, under all the circumstances, to suppose that Ghambliss did not mix this trust money with his own, and use it.

Prom the above state of the prominent facts, with other surrounding circumstances upon which I do not think it necessary to enlarge, my mind has been brought to the conclusion, that there has been great irregularity in the keeping of the executor’s accounts ; gross omission to report annually ; a mingling of the affairs of the estate with his own; an unjustifiable concealment of funds received and arrangements made with debtors; a postponement of the interests of the estate to his own; and, I am constrained to add, a use of the trust funds. There has also been a culpable continuous effort during a long period, to protract the litigation, and keep heirs, some of whom were minors, out of their estate.

That the executor should be charged with interest on Hood’s note, having *394received it, is of course too clear to require comment. Even if Hood was not legally bound under his contract to pay the interest, he did pay it to the executor, and the estate must have the benefit. The suppression, in his account of 1841, of the fact that he had received interest, and the giving credit as of 7th of June, 1840, for the principal only of an asset, which was in fact a due bill, dated more than three years previous, was a gross violation of duty, and must be characterized as a spoliation.

I also concur in charging him with interest on his own note. His account of 1841, on crediting the naked principal on 7th June, 1840, omits to state the material fact, that the note was dated March 28, 1837. Although distinctly called upon by the heirs to explain the history of that note and Hood's, and although the n'ote was in his possession, he omits, in his account of 1848, to discribe its tenor, or explain its origin, nor is it produced at the trial by his executors. As Hood's note has been proved to have been a due bill, and Prentice's obligation, of which I will presently speak, was also in that form, and as Chambliss and his executors have omitted an explanation which we may reasonably believe they could have made, I think this a proper case to apply the doctrine, omnia presumunter contra spoliatorem.

I also concur in the propriety of charging Chambliss with the amount of the Prentice due bill. The settlement he made with Prentice was without judicial sanction; it gave Prentice credit on a due bill, which Chambliss, in his receipt given to Mrs. Barton, declares is an asset of Bass’s estate, for the amount of an assigned claim against a third person, which has proved utterly worthless; the value of the invoice of goods is not shown, and, in the compromise, the interest of the estate seems to have been blended with his individual affairs. It is just to consider him, by this conduct, as having made the Prentice note his own, and liable to the estate of Bass for its amount, and at least five per cent, interest from its receipt by Chambliss. I will add, that the impression made upon my mind, by a consideration of the surrounding circumstances with reference to the obscure matter of the Prentice and Chambliss notes is, that these two persons, who were the official sureties of Barton, had borrowed of him the funds of the Bass estate.

I also am of opinion, that it was the duty of Chambliss, when he became executor, to take legal means to make the Ban'ton deficit out of Barton's estate, and not having done so, and also being himself the surety of Barton, he is answerable to the estate for the deficit.

After what I have said, it is hardly necessary to add my entire and unhesitating concurrence in the doctrine, that the heirs should not bear the bur-den of the counsel fee of $1200.

Leaving the Barton deficit for the present out of view, I proceed to consider the liability for interest on cash amounts actually received by the executor, and not accounted for by annual accounts.

I have already stated the claim of the plaintiffs touching interest, as put forth in their petition. I consider it substantially a claim for an interest ac-. count at eight per cent, with annual rests ; and under this claim, the allegation of the failure to render accounts, and the prayer for general relief, I think the plaintiffs entitled to the benefit of the 6th section of the Statute of 1837, allowing ten per cent, interest in certain cases, up to the point that eight per cent, interest calculated, with annual rests, would reach. A calculation of eight per cent, interest on a given sum upon the principle of annual rests will de*395monstrate, that eight per cent, interest with annual rests, is equivalent to running interest at the rate

for two years of about - 8&

for three years “ 8f

for four years 9

for five years 9$

for sis years 9f

for seven years 10 1-5

for eight years 10|

for nine years 11 1-10

and for ton years 11 8-5.

The plaintiffs have therefore substantially asked what would probably be found on calculation to amount to more than ten per cent, and should have, therefore, in my opinion, the benefit, up to ten per cent., of the Statute of 1837.

But if it be otherwise, and the plaintiffs are to be restricted to eight per cent, simply, and without the benefit of annual rests, from what time should the eight per cent, interest begin to run ? My opinion is, that it should begin under the statute, to run on items omitted in previous accounts, and that ought to have been included in them, at a date one year from the time when he received the omitted item and failed to account for it. Thus, in the present case, I think the eight per cent, on the $300 received by Chambliss, for interest on Rood’s note on the 7th of June, 1840, should run at least from 7th June, 1841 if not, perhaps, from 3d of April, 1841, date of filing his annual account after receipt of that item. I am also of opinion that the eight per cent, interest should run at least from 7th of June, 1841, upon the omitted interest of $- on Chambliss’ own note. I am also of opinion that eight per cent, interest should be charged to him upon the amount he owes for the Prentice note, at least from the 9th July 1840, being one year from the day he made the Prentice note his own debt. I conceive it would be erroneous to make a distinction between cash actually received by an executor, and a liability he has incurred at a particular date, for a sum of money by reason of his mal-administration.

To establish these principles, I proceed to notice the language of the statute, and consider its spirit and policy.

The language of the 6th section of the Statute of March 13, 1837, p. 96, is as follows : Be it further enacted, &c., That all executors, administrators, curators of vacant successions and syndics, shall, at least once in every twelve months, render to the Probate Court a full, fair, and perfect account of their administration, and on failure to do so, shall be dismissed from office, and pay ten per cent, per annum interest on all sums for which he may be responsible, from the date of the expiration of the twelve month’s aforesaid.

Now, it must be observed with reference to this section :

1st. That it is not necessary for the imposition of the burden often per cent, that the executor, &c. should have been called upon to file his account. The law commands him absolutely to render an account at least once in every twelve months. His failure to do so, subjects him to the burden.

2d. The annual account thus prescribed by the law, is not a mere account of any sort. It must be a full, fair and perfect account, or as expressed in the equally explicit and stringent language of the French text, un compte entier, juste etparfait de leur administration. Now, when a trustee who is actuated by the selfish and unfaithful motives which, I think, are justly attributable to *396this executor, omits to mention cash he has actually received, and amounts for which he is clearly liable, it cannot be said, quoad, such omitted items, that he never rendered a full, fair and perfect account. As to them, he is to be considered in the same light as though he had rendered no annual account at all. Whether the ten per cent, should be imposed on an executor, who had omitted an item on filing an account, by an honest mistake, or under circumstances presenting some grounds of explanation consistent with fair intentions, is a question not necessary now to consider.

Nor is it necessary now to say, whether in every case the interest under the statute should run on amounts not duly accounted for, down to the time of satisfaction, or only to the time of actually presenting a full, fair and perfect account. I think there is, in the present case, no equitable reason to arrest the interest at the time of filing in this suit the forced and imperfect account of 1848.

3d. The statute does not say he shall be charged ten per cent, interest only on cash actually collected. Its language is, “ on all siwis for which he may be responsible.”

Let us here consider also the spirit of this statute, as deducible from the section already noticed, and the context. I conceive the motive of the lawgiver to have been to keep persons acting in a fiduciary capacity from temptation to use the money of estates entrusted to them, by requiring them to deposit in bank under an enormous penalty, prescribed in the 3d section, and to render annual accounts as prescribed in the 6th. It is clear, from the severity of the law, that a great evil had existed, that there had been great abuses in the administration of such trusts, and this evil it was the object of the Legislature to remedy, by prescribing certain duties to persons clothed with such trusts, and imposing certain penalties for their non-fulfilment; so that in future, the funds belonging to heirs, creditors and minors, should be kept sacred, and not used for the profit and convenience of the trustee. And I also infer, from the language of the 6th section, and the penalty inflicted, the presumption of the lawgiver, that a trustee who fails to render an annua] account, has an improper motive for doing so, and should respond at the rate of ten per cent, for the profit or convenience which he has personally derived from the trust fund, of which he has rendered no account. Why, in the anticedent section, should an interest of twenty per cent, be imposed upon the executor, &c., who fails to deposit in bank, from the time the money came into his hands, except upon the hypothesis that the party has avoided its deposit in order to use it.

In seeking for the spirit of this important law, we may derive assistance by considering how persons acting in a fiduciary capacity, are treated by courts of equity in England and our sister States.

In the decisions of Courts of Equity in England and America, it is treated as a principle of universal jurisprudence, that trustees can only hold and act for their beneficiaries; that all gains enure to their benefit; and that interest, sometimes simple, sometimes compounded, will be given as the standard or value of the money used. The trustee is held liable for interest where he does not keep accurate and regular accounts, so as to be always ready with them when necessary, to be examined, or where the law requires them, or where he omits to distribute at the time required by law, or the terms of the trust, or where he mingles trust money with his own, or uses it, or trades with it, or *397makes a profit on it by way of interest or otherwise. 1 John. Oh. 85. 2 Story’s Equity, 1277 et seq. Lewin on Trusts, 324 et seq. 4 John. Oh. 302.

The Roman law sometimes inflicted a grievous interest in the nature of compound interest, but greatly exceeding it, on a trustee guilty of a gross abuse of trust. Story’s Equity, 1279.

Le tuteur ne peut employer secrétement les capitaux du pupille á son avan-tage personnel; il devrait en payer l’intérét le plus elevé. Mackeldy, Manuel du droit Romain, p. 301, in note.

Quse autem suñt pupillares usuree videudum est ? Et apparet hanc esse fir-man usurarum, ut ejus quidem pecuniae, quam quis in usus suos convertit, legitimam usur'am prmstet. Sed et sii ncgavit apud se esse pocuniam, et praetor pronunciavit contra eum, legitimas solvere debebit; vel si morara depo-sitioni fecit, et prsetor irrogavit ei legitimas. Sed et si dum negat aliquain quantitatem penes se esse, pupillis ad onera sua oxpedienda imposuit necessi-tatem mutuam pecuniam legitimis usuris accipiendi, tenebitur in legitimis. Item si a debitoribus legitimas exegit. Ex cceteris causis secundum morem provincias praestabit usuras, aut quincunces, aut trientes, aut si quae alise levi-oresin provincia frequentantur. Digest, lib. 26, tit. vii. leg. 7 § 10.

With regard to the Barton deficit, the plaintiffs have simply claimed interest at the rate of eight per cent, per annum from the date of his appointment, and not interest by annual rests.

It was the duty of Gha/mbliss, as soon as he became executor, to collect the Ban'ton deficit from Barton's administratrix, or from himself as the official surety of Barton. If he had done so, he would have had in his hands in a reasonable time after his appointment, say in January, 1840, the cash for that defalcation. If in his next annual account ho had reported this as cash in hand, the heirs might have applied to the court for payment out of' it, or to have an investment of this large sum ordered for the benefit of the estate until the proper period for a distribution arrived, which investment would have been a common benefit to all the heirs.

But he did not do this. He did not get the money, and on the contrary promised, in substance, not to exact it from the principal debtor, or his widow in community, until a distant period. Having done this without the consent of the heirs, or judicial sanction, I think he ought, as to their share, to account to them with interest, especially as the arrangement concerned his individual interest as surety.

If he had come forward in his next annual account, frankly and candidly, as a trustee is bound to do, especially in a matter in which he had a deep personal interest, and explained to the heirs the arrangement with Mrs. Barton, they could then have exercised their option either to repudiate or approve it. But he acted without their knowledge or consent, as far as the evidence informs us, and without judicial sanction.

To release him, and by consequence Mrs. Bwton, from interest on this large sum for fourteen years and upwards, does not seem to me equitable either as between the heirs themselves, or as between the heirs and the executor.