
    *Whitehead's Adm’r v. Whitehead & als.
    
    March Term, 1873,
    Richmond.
    1. Commissioners in Chancery Statute — Authority oí County Court. — The provisions of s. 16, ch. 133, Code of 1860, prescribing- what shall be done by a commissioner in settling the accounts of fiduciaries, apply to the report, regular or special, mentioned in § 34, of the same chapter ; and therefore, under this § 34, a County court is not authorized to make any order for investing or loaning out the money or funds therein referred to, unless the commissioner has previously conformed to the provisions of § 16, by posting the notice as therein required.
    2. Same — Same—Motion.—If in such a case, the order is made by the County court, without the report required by the statute, the County court has jurisdiction on the motion of the parties whose money is invested, upon notice to the other party, to annul the order.
    At the November term 1863 of the County court of Pittsylvania, on the motion of Sally A., Emily R. and Pincy Whitehead, by Wm. C. Tate, their next friend, it was ordered that John D. Glenn, administrator of A. J. Whitehead, deceased, be summoned to appear at the next term of the court, to show cause, if any he can, why the order made at the last term of the court, authorizing said administrator to deposit in the Pittsylvania Savings Bank the balance due them from A. J. Whitehead, their late guardian, should not be set aside.
    The order of court referred to was made at the October term of the court, and reciting that A. J. Whitehead, guardian of Sally A., Pincy and Emily R. Whitehead, having died; and it appearing to the court,' from the report of commissioner Banks, that there is a balance in *the hands of the said A. J. Whitehead due the said wards, on the 18th of August 1862, to the said Sally A., of $1,782.00 of principal and $87.26 of profit; to the said Pincy of $1,782 of principal and $223.99 of profit; and to the said Emily R. of $1,782 of principal and $296.28 of profit, on the motion of John D. Glenn, administrator of said A. J. Whitehead, deceased, the court doth author5 ze said administrator to deposit in the Pitt-sylvania Savings Bank said sums of money, with interest thereon; that he take a certificate of deposit thereof in the name of each ward, and file the same in the clerk’s office with the clerk of this court.
    The motion, of which notice was duly served on Glenn, came on to be heard at the January term of the court, when it was overruled, with costs. The plaintiffs thereupon applied to the judge of the Circuit court of Pittsylvania for a supersedeas to the judgment; which was allowed.
    In the Circuit court it was agreed by the parties, that the report of commissioner Banks, and the order directing it to be recorded, made at the December term of the court, should be considered a part of the record; and the cause came on to be heard on the 6th day of June 1867, when the court held that the judgment of the County court was erroneous; because the order of the County court of the-October 1863, authorizing the defendant in error to deposit the money therein mentioned in the Pitt-sylvania Savings Bank, to the cred't of the plaintiffs in error, (if such an order could be made at any time,) was premature, and made before the court had any jurisdiction to make any order in respect to said accounts, the same not having been returned to the clerk or the clerk’s office at that time. Therefore, the judgment was reversed, with costs, and the order aforesaid of the County court, made at the October term 1863, was rescinded and annulled. To this judgment Whitehead’s *adm’r, applied to this court for a supersedeas, which was allowed.
    Although the statements made by the commissioner bring down the accounts to August 1862, they show that all the moneys with which he is charged, except the interest, were in the guardian’s hands in May 1859. The first item in each account is a charge of $1,517.17 of principal, balance due ward per account settled and recorded, as of the 20th of April 1859; and under date of May 1st of the same year, there is the additional charge of $264.83, proceeds of the sale of slaves in which the wards had an interest. All the other items of the accounts, after that date, are charges of interest on the previous items on one side, and payments for wards on the other.
    The report ’of the commissioner accompanying the statement of the accounts, bears date at its commencement, October 17th, 1863. It states that Glenn had on the 4th of September 1863, exhibited before the commissioner a statement of all money which A. J. Whitehead, as guardian, or he as his executor, had received and disbursed, or become chargeable with, together with his vouchers, from the time of said Whitehead’s last settlement up to the 17th of October 1863. That this guardian was included in the list of fiduciaries, &c., which list was posted at the front door of the court house of the county, on the first day of October court 1863; and on the date of this report, (ten days having elapsed since the said account was mentioned in said list,) made up and completed the foregoing accounts of A. J. Whitehead, as guardian as aforesaid; and on the 18th of August 1862 found a balance of-•, stating the amounts in the account. All of which amounts, together with the interest which has accrued thereon since the 18th of August, was deposited in the Pittsylvania Savings Bank, by *an order of Pittsylvania County court, made at its October term 1863, after deducting tax accounts and commissioner’s tickets.
    This report was endorsed by the clerk as filed on the 9th of November 1863; and at the December term of the County court, an order was made, reciting that the account having been returned to the clerk’s office one month, and no exceptions filed to the same, it was examined by the court and confirmed.
    It is very obvious that all of this report was not written, and that it was not signed by the commissioner, when the order of court was made. The statement of the accounts was made out on the 17th of October; the Court met on the 19th, when this statement (not the report) was presented to the court; and the order for the deposit of the money was made on the 22d. Such is the statement of E. Carter, the clerk of the commissioner, whose affidavit is filed in the case, though it does not appear to have been made a part of the record. Certainly the term of the court commenced on the 19th.
    Dabney, Barksdale, Ould & Carrington, for the appellant.
    Grattan, for the appellees.
    
      
      For monographic note on Commissioners in Chancery, see end of case.
    
   STAPGNS, J.,

delivered the opinion of the court.

The court is of opinion that the 16th section of chap. 132, Code of 1860, requires a commissioner in chancery, on the first day of any County court, to post at the front door of the court-house a list of those fiduciaries whose accounts are before him for settlement; stating the names of such fiduciaries, the nature of their accounts, whether as personal representative, guardian, curator, committee or trustee; and the names of their decedents, or of the persons for whom they are guardians, curators *or committees, or under 'whose deed or other instrument of trust they are acting.

These provisions are manifestly intended for the protection of persons interested in the subject matter of such accounts; and they apply to the report, regular or special, mentioned in the 24th section of the same chapter; and consequently, under the last named section a County court is not authorized to make any order for investing or loaning out the money or funds therein referred to, unless the commissioner has previously conformed to the provisions of the 16th section, by posting the notice as therein required.

The settlement and report of commissioner Banks constitute a part of the record in this case, by agreement of the parties in the Circuit court. They purport to have been made out and completed before the commencement of the October term of the court; but it is very manifest that this was not the fact. It is possible the settlement had progressed far enough to ascertain what was due the wards respectively. The accounts were, no doubt, taken in this incomplete state to the court-house, at the instance of the administrator; and upon some verbal representation of the sums probably due the wards, the order for the deposit was obtained. This being done the papers were returned to the commissioner; the settlement then completed, and filed in the clerk’s office nearly a month afterwards. There was neither a regular nor a special report, such as is contemplated by the statute.

It is very obvious the notice was not posted until the very day the order was obtained; nor was any information given to the wards, or to any one for them, that an application would be made for such order. The failure to post the notice until the October term, notwithstanding the accounts were before the commissioner long anterior *to the September court; and the hot haste in obtaining the order the same day the notice was posted, plainly evince a purpose to keep the wards and their friends ignorant of the whole proceeding. The report did not show any money in the hands of the administrator of the guardian, belonging to the wards. It did show a balance of principal due each of them, amounting to fifteen hundred and seventeen dollars and 17 cts. by account settled and recorded as early as April 1859; and in addition thereto the interest that had accrued since the date of the settlement. This principal had been appropriated and never accounted for by the guardian. This liability continued until September 1863, when the administrator of the guardian is seized with a desire to have a settlement of his accounts. At that period Confederate Treasury notes constituted the sole circulating medium of the country. And it is impossible not to see, that the whole object of this action was to relieve the estate of the guardian, or the administrator himself, of a debt, every dollar of which was justly due in coin or its equivalent, by a deposit in a depreciated currency, under the supposed sanction of the County court. A proceeding of this sort, affecting the rights of infants, does not commend itself to the favorable consideration of this court. An order thus irregularly made cannot be regarded a^ an adjudication of the rights of the infants. As they were not parties to the proceeding in any form, they can of course take no appeal therefrom. Their only remedy is a motion to set aside such order as improperly made. In Hollins v. Patterson, 6 Leigh 457, the County court, without any of the proceedings required by the statute concerning roads, made an order summarily on motion, for an alteration of a public road. It was held, that the court, at a subsequent term, at the instance of a party aggrieved, and on hearing of *the party on whose motion the alteration was made, might set aside the order for the alteration, and re-establish the road. The same principles justify the rescission of the order in this case. What effect such rescission may have upon the rights of the parties, this court is not now called on to decide. The defendants in error are entitled to have it removed out of their way, with a view to the prosecution of such claim as they may have against the estate of their former guardian.

The judgment of the Circuit court must, therefore, be affirmed.

Judgment affirmed.  