#### REDDICK GATLIN, Admr. of JAMES GATLIN, v. WILLIAM DARDEN, et. al.

Where an administrator made a mistaken distribution of slaves, and after, wards a decree was pronounced against him in favour of those really entitled, correcting the mistake, his bill, filed more than three years after its discovery, seeking to recover the slaves from those to whom he had improperly assigned them, is barred by the statute oflimitations.

Joseph Speight died in the year 1792, possessed of certain slaves, which he bequeathed by will (the construction whereof has been settled in this Court, vide 2 Dev. Eq. Ca. 5), to his widow Ann, for life; remainder to his sons Francis and Henry forever. The widow received the slaves from the executors, and enjoyed them until her death in 1819; the two legatees in remainder died before. The plaintiff’s intestate, James Gatlin, was the administrator of one of these legatees, Henry, and upon the death *73of the widow, took out letters of administration upon her estate, and became administrator de bonis non, with the will annexed of Joseph Speight. He applied for advice to a professional gentleman in relation to the title and disposition of these negroes, who was of opinion, that the residuary interest, after the estate for life to the widow, was undisposed of by the will, and that they were distributable as a part of the said Joseph’s property, with respect to which he had died intestate. Confiding in the correctness of this opinion, the plaintiff’s intestate immediately caused the negroes to be valued, and a division thereof to be made into four equal shares : one he retained for the next of kin of his intestate, Henry ; one he delivered over to the representatives of the other legatee Francis; another he delivered to the representatives of Catharine Dunn, a deceased daughter of Joseph Speight; and the remaining fourth, consisting of two negroes, Stephen and Elijah, was set apart for the defendants, then and still infants, who were the grandchildren of Susanna Darden, another daughter of the said Joseph. These two negroes were received into possession by Jethro Warren, since deceased, but then guardian of the defendants. The plaintiff’s intestate having died, a bill in equity was brought by the next of kin of Henry, against the plaintiff, in 1824, which, after much delay, was finally heard in 1831, (vide 2 Dev. Eq. Ca. 5,) and a decree rendered for the plaintiffs therein, correcting that erroneous division. The true construction of the will was definitively settled, and the plaintiff, as administrator of James Gatlin, was decreed to account for the residue of the share of Henry Speight, which had not been retained and accounted for by his intestate. The plaintiff thereupon filed this bill, seeking an account of the negroes improperly received by the defendants, and of their hires, which he alleged on account of the mistake, should be considered as having been held in trust for the plaintiff’s intestate. Besides the two negroes, an account was demanded of a sum of money alleged to have been paid over under the same circumstances, but the proofs showed, that this was paid *74and received as part of Ann Speight’s personal estate, and it did not appear, that it was improperly paid as such.

*73June, 1835.

*74Relief will not be given upon a state of facts not set forth in the pleadings, and appearing only upon the proofs.

Winston, for the plaintiff.

No counsel appeared for the defendants.

Gaston, Judge.

Several defences have been set up to this bill, and among others, the ordinary statute of limitations.

The legal interest in the negroes, subject to the life estate, had vested in Francis and Henry Speight.— After the mistaken division, there was no impediment to an action of detinue by the administrators of those estates to recover the possession of them. The statute makes three years a bar to that action, and it is an established rule of equity, that wherever a legal claim is there presented, as it may be in some cases, it must be presented within the time prescribed as a bar to the analogous legal action. If the mistake can furnish an equitable ground for suspending the operation of the statute, (of which we say nothing,) bringing of the suit by the next of kin of Henry was distinct and express notice and warning to the plaintiff’s intestate, that such mistake had been committed. After this, he cannot be permitted to allege ignorance of the mistake, or ask of the Court to remove out of his way a statutory bar, arising from his own subsequent neglect.

From the proofs it appears, that one of the negroes, Elijah, died in the hands of the former guardian, and before any profits were, or could be received. As to the other negro, it would seem from the testimony, that he had been left by the former guardian, after the bill brought by Henry Speight’s next of kin, in the plaintiff’s possession to await the decision that might be made in that suit. If the present bill had been framed with reference to that state of things, and the representatives of the deceased guardian been parties thereto, a decree might probably have been had declaring the property in that negro. But in the present state of the bill we cannot do so. Our decision in this case, however, will not prevent the plain-' tiff, should the defendants attempt to recover possession *75of that negro, from showing the truth of-the case, and setting up such defence, and obtaining such protection against that claim as may be just.

It is the opinion of the Court, that .the bill must be dismissed. * '

PeR Curiam. V Bill dismissed.