By the Court —
Lyon, J., delivering the opinion.
On the 3d March, 1831, Jacob Garrard, then in life, conveyed certain slaves to William S. Hardin, in trust for the use of his children, by his wife, Martha, then and now living, that should be in life at his death, of whom there were then seven living, the wife of complainant being one, and three others were subsequently born. The said Jacob died in 1842, leaving his wife and nine children surviving. After the *170death of the said Jacob, his widow retained the possession of the negroes, and employed them for the support and maintenance of herself, and the like support, maintenance and education of such of the children as lived with her, until and as they respectively married and left her, some having married and left the house before the death of the father. Each one of the nine children was entitled to the one-ninth part of the negroes so conveyed. Complainants, William D. Elam and Martha N., one of the children entitled to a share of said property, were married in 1851, and this bill was filed by them in 1858, against the other children, to compel a distribution of said negroes, and to charge the property with the complainant's share of the hire of the negroes up to the distribution, on the following allegations : “Tmmediately after the death of the said Jacob Garrard, all of the property went into the possession of Martha N. Garrard,” the widow, “ by and with the consent of all the children who were of age at that time, complainant, Martha N., being a minor at that time and for many years afterward;” that “ Martha N.,” (the widow,) “ took possession of said property, mentioned in said deed, and managed the same by and with and under the directions of one of her five sons, from the death of said Jacob Garrard to the present time, and there has not been any return made or account rendered of the hire of said slaves, up to the following time;” and “complainant, in right of his wife, is entitled to the one-ninth part, with interest on the one-ninth part hire.” The prayer is, that “ the defendants account with complainant respecting his proportionate part of the value and hire of said negroes.” When the cause came on for trial in the Court below, Judge Worrill ruled, upon the pleading, that the complainants were not entitled to a decree against the defendants for anything in the way of hire, and so it was decreed.- To this ruling complainant excepted, and that is the. only question made by this record for our determination.
We think the Court ruled correctly, as there was no allegation in the bill that could have authorized a recovery against the defendants, or any one of them, for the hire of *171jj;he negroes or any part of it. One allegation is, that “ all of the property went into the possession of Mrs. Garrard, the mother, with the consent of all the children that were then ©f age.” Such consent is not even a circumstance to charge those consenting to the use of the property by the mother, with the hire of the property, to those who did not consent. It would be a strange rule that would create such liability. The only other allegation is, that Mrs. Garrard “took possession of the property, and managed the same by and with and under the direction of one of her five sons.” If she did take possession of and manage the property, she is liable for its use, and not her sons, although they might have directed her in its use; any stranger might have done so much, without incurring liability to the owner for its use. But suppose that the one of her five sons, who gave the directions as to the management of the property, thereby rendered himself liable to the owners for hire, it does not follow that the balance of the children are liable for his act; and to have made the son liable under any circumstances, the bill ought to have shown which one of the sons thus directed the management, and in that case, if his act created a liability, which we do not admit, it would be only a personal one, to be recovered in the ordinary way, and not by a proceeding in equity to charge his property, as if it were a special lien upon it.
Let the judgment be affirmed.