
    T. Jones Stewart, Guardian of Charles E. Stewart, vs. Truxton Davidson, Administrator of John Netterville.
    The statute of 1S46, which gives the probate court the power to entertain bills of review of its own decrees and judgments, has no retrospective operation, so as to allow it to entertain a bill to review a decree of the court rendered prior to the passage of that act.
    Where, therefore, a bill of review was filed in 1846 by a creditor of an estate, to review the judgment of the probate court, rendered in the year 1844, confirming the final report of the commissioners of insolvency on that estate, in which the creditor who sought the review was not included, and the order appointing commissioners was made on the 14th of December, 1843, directing them to keep the commission open six months, and they reported on the 13th of June, 1844, and their report was then allowed ; it was held, that the judgment of allowance, being on a matter within the jurisdiction of the court, was final and conclusive under the laws of this state at the time it was rendered, unless reversed by the high court of errors and appeals, and was a bar to claims not allowed therein; that rights had been acquired under it; the legislature had no power to prescribe a mode by which a judgment thus made final by existing laws, could be opened or reversed; and the bill of review must be dismissed.
    Poes the statute prescribing the length of time in which commissioners of insolvency shall keep the commission open, mean by the word “ months ” lunar or calendar months ?
    On appeal from the decree of the probate court of Wilkinson county ; Hon. Francis Gildart, judge.
    Charles E. Stewart, by T. Jones Stewart, his guardian, filed his bill of review in the probate court on the 12th of November, 1846, in which he alleges in substance, that he is a minor. That in 1836, one John Netterville' was appointed guardian of his person and estate, by the probate court of Wilkinson county. At the time of the grant of letters to Netterville, complainant owned an estate in lands and personal property, worth at least $50,000, which went into Netterville’s hands. Netterville returned no inventory of his ward’s property, nor did he ever account or settle in any way with the probate court as guardian. Netterville died in December, 1840, greatly in debt and in arrears to his ward. In 1841, Truxton Davidson was appointed administrator of Netterville’s estate by the probate court, and on the 14th day of December, 1843, represented to said court, that Netterville’s estate was totally insolvent; and that upon such showing, the said court on that day ordered that said estate be declared insolvent, and that three persons by name be appointed commissioners of insolvency, &c. That said commissioners proceeded to act under this order; that it does not appear that any evidence was offered to the probate court, that they gave notice of the times and places of their meeting, to receive and audit claims against insolvent’s estate, according to the directions of the order; and the bill denies that such notices were given.
    
      That said commissioners did not keep open the commission, or allow to the creditors the period of six months from the time of their appointment, as directed in the order, for the presentation and proof of their claims : But that said commissioners did on the 12ih day of June, 1844, close their commission ; and that on the next day, to wit, the 13th day of June, 1844, made their report; which report on that day was affirmed by said court.
    The bill shews the following errors in the order or decree of the court, to wit :
    1. The order of the court affirming said report, does not shew that the order appointing the commissioners was strictly complied with.
    2. That six months were not allowed to the creditors of Net-terville’s estate, in which to present their claims: The order declaring the estate insolvent, and appointing said commissioners, having been made on the 14th December, 1843, and the commission having been closed on the 12th of June, 1844, by said commissioners, and their report affirmed by the court on the 13th of same month.
    For these errors, the bill insists that the order of confirmation ought to be vacated.
    That at the time of the appointment of said commissioners, and at the date of their report, he was an infant of very tender years, wholly ignorant of all the circumstances connected with the subject. That Netterville is believed to be indebted to him in at least the sum of $20,000, that no claim or demand was ever presented to the commissioners for the same ; and, that in consequence of the irregular and illegal acts of the commissioners, and his own ignorance and helplessness, he has been prevented from exhibiting his claims for allowance to said commissioners.
    The bill prays the order confirming the account to be set aside, and for general relief.
    The orders appointing the commissioners and confirming their report, were exhibited with the bill. The former was as follows: “On the 14th of December, A. D., 1843, a shewing of the insolvency of the estate of John Netterville, deceased, was pre-seated to court by Truxton Davidson, the administrator of said estate, which is received, approved and ordered to be recorded. And it is further ordered, that the estate of said John Netter-ville, deceased, be declared insolvent, and that James N. Douty, Henry H. Davis and Thomas W. Hays, be appointed commissioners to receive and audit claims against said, deceased, and that the creditors of said deceased have six months to present their claims against said estate, and that said commissioners make known the times and places of their meetings for the purpose aforesaid, by publication in the Woodville Republican, a newspaper printed and published in the town of Woodville, and by posting up notice in the town of Woodville, Port Adams and Mount Pleasant, in the county of Wilkinson.” ■
    The order confirming their report was as follows : “June 13, 1844. A report of the commissioners of insolvency on the estate of John Netterville, was returned to court, and it appearing to the satisfaction of the court, that due notice had been given to the creditors of said estate by the commissioners, by advertising the same in the Woodville Republican, a newspaper printed and published in Wilkinson county, state of Mississippi, and by posting up notices of the same at three of the most public places in said Wilkinson county, it is, therefore, ordered by the court, that said report be received, approved, and ordered to be recorded.”
    To this bill, there was a general demurrer in the court below, which was sustained by that court, and the complainant’s appeal prosecuted.
    Gordon, for appellant,
    made and elaborated these points.
    1. The object of the law of 1846 was to meet and correct the abuses existing in the former system as had been disclosed by the decisions of this court in Chewning v. Peck, 6 How. (Mi.) 524, Smith v. Berry, 1 S. & M. 321, Jones v. Coon, 5 lb. 766; and this court in McCullom v. Box, 8 lb. 619, have already held the law of 1846 competent and suitable for that end ; and it is therefore applicable to this case.
    2. This was, according to the rules and principle of equity, a proper case for a bill of review. 3 Am. Eq. Dig. 51, §§ 67, 68; 2 Hamm. R. 381; 3 Paige’s Oh. 371; 2 Harrison’s Ch. Pr., Forms of Decrees; 5 Mason’s R. 303; 3 Am. Eq. Dig. 46, <§4 l, 2; 3 J. J. Marsh. 492; Coop. Eq. PI. 8; 4 Mon. (Ky.) R. 146.
    3. The decree contained error on its face in allowing the report of the commissioners of insolvency, because the publication showed by it was not in obedience to the order which specified the particular places. How. & Hutch. 409, § 80.
    4. The commission was kept open less than six months. Where notices are to be given for a specified time, one day is to be taken inclusive and one exclusive. 1 Dunlap’s Pr. 317; 3 Johns. R. 261; 16 lb. 120'. A month mentioned in a statute will generally be considered a . calendar month. M as s. R. 170; 4 lb. 160; 19 Pick. 532.
    
      Smith and Cage, on same side,
    besides those made by Mr. Gordon, made and argued the following points :
    1. Stewart, though not a party to the decree, had sufficient interest to maintain the bill of review. Story’s Eq. PI. 428, § 409; Mitf. Eq. PI. 371; Coop. Eq. 95; Webb v. Pell, 3 Paige, 371.
    2. The administrator was the only necessary party to the bill. Van Vechten v. Terry, 2 Johns. Ch. R. 197; Wiser v. Blackley, 1 Johns. >Ch. R. 438 ; Wendell v. Van Rensselaer, lb. 350; Boisgerard v. Wall, 1 S. & M. Ch. R. 427.
    3. The six months prescribed by the statute for keeping open the commission, (How. & Hutch, 409, § 80,) mean calendar and not lunar months. 1 Dane’s Abridg. chap. 27, art. 6, § 4. Resolution of Congress, Art. 2, in the year 1775, 2 Mass. R. 170; 2 Marsh. (Ky.) 245; 4 Litt. 20, 283; 6 Monr. R. 71; 4 Mass. 460; Snyder v. Warren, 2 Cow. 518. It is apparent, when all the statutes are taken together, that calendar and not lunar months are meant in the probate law. How. & Hutch, ch. 39, § 16, p. 472; ch. 36, § 64, p. 403; § 54, p. 401; lb. § 80.
    4. If the calendar months be meant the time was too short, even if the six months date from the declaration of insolvency, and end with the close of the com uission. The King v. Ad-derlexj, Doug. 463; Castle v. Burditt, 3 Term R. 623; 1 Lord Ray. 650; Chitty on Bills, 205 - 211; 8 Mass. R. 453; Bennet v. Nichols, 4 Term R. 121; 3 lb. 642; Ex parte Dean, 2 Cow. R. 605; 4 Monr. 467 - 474; Hardin, 457 ; 2 Marsh. 257; 7 Monr. 521; 1 H. Bl. 14. But the time ought properly to commence from the first publication of notice, and not from the order for publication.
    
      Parish and Davidson, for appellee,
    contended at length,
    1. That the case presented by the bill was not a proper one for a bill of review. They cited Story’s Eq. PL § 404; Stark v. Mercer, 3 How. (Mi.) 380; Iler v. Ronth, lb. 292; Mitf. PI. 66; 1 Ch. R. 231; 4 Yin. Ab. 414; Story’s Eq. PI. § 404; Mellish v. Williams, 1 Yern. 166; Bonham v. Neiocomb, lb. 216 ; 2 Mad. Ch. 538; 2 Ball & Beatty, 154. •
    2. Stewart was no party to the decree; his bill was therefore an original one, to set aside a decree rendered by a court of competent jurisdiction, which is not allowable. Griffith v. Vert-ner and Wife, 5 How. (Mi.) R. 736 - 741.
    3. The creditors whose claims were allowed, ought to have been parties to the bill, as being parties in interest. Mitf. PL 32, 133; 1 Harrison’s Ch. 90; 1 Johns. Ch. R. 311; Wendell v. Van Rensselaer, lb. 344; Halleü v. Hallett, 2 Paige R. 15 ; Mallon v. Hinds, 12 Wheat. 198.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

This case comes up by appeal from the probate court of Wilkinson county. A bill of review was filed in that court, under the act of 1846, to open an administration account, under the following circumstances: John Netterville, in his lifetime, was guardian of the ward of appellant, but failed to return any inventory, or to make any settlement, and was largely indebted to his ward when he died, as it is alleged.

Davidson, the administrator on Netterville’s estate, reported it insolvent, and thereupon commissioners of insolvency were appointed, to receive and audit claims against the estate, who ■were directed to keep open the commission six months, and to give notice of the times and places of meeting, in the manner prescribed in the order appointing them. This order was made on the 14th of December, 1843, and on the 13th of June, 1844, the commissioners made their report, -which was approved and confirmed by the court; the order of confirmation recites that notice had been given in the Woodville Republican, and also by posting up notices at three of the most public places in the county.

The claim of the ward against the estate of his former guardian was not presented, and of course no allowance was made in his favor, and the object of the bill of review is to have this order vacated, so that he may have an opportunity of presenting his claim.

It is certainly true, as contended, that the statute of 1846 gives great latitude in reviewing the orders and decrees of the probate courts ; but in this instance we are met at the threshold by a preliminary question which cuts off all inquiry into the merits of this application. This judgment of the court cannot be reached under this statute. Previous to the passage of the act, the judgments and decrees of the probate courts, on matters within their jurisdiction, were invariably regarded as final and conclusive, subject to be reversed only by appeal or writ of error. Collaterally they could not be impeached; nor could they be opened by bill of review. We have repeatedly decided on the conclusive character of these judgments, and also that the probate courts could not entertain jurisdiction of bills of review. This judgment, confirming and adopting the report of the commissioners, was rendered in June, 1844, and the foregoing remarks show its character. It was liable to be reversed by appeal, or writ of error, for matters apparent on the record, or for irregularities on the part of the commissioners, made to appear by exceptions to the report. But no such remedy was adopted. It was permitted to stand, with all the attributes of a final judgment on a matter within the jurisdiction of the court that rendered it. The parties interested in it, had acquired rights under it. It was a bar to claims not therein allowed. It derived its force and character from the laws of the land, in existence when it was rendered. Had the legislature power to change its character; to take from it its dignity, and impair the rights which it secured? We have decided at the present term that the act of 1846 could not so operate. The legislature cannot open or reverse a judgment rendered according to existing laws. This is judicial power. And if they could authorize this to be done by bill of review, they could prescribe any other mode, and thus strip judgments of their solemnity. We cannot think that the legislature intended to give this act a retrospective operation. It was designed to change the law on that subject in cases thereafter to arise, and so far it can operate, and establishes a statutory rule. Nothing short of a direct declaration to that effect would justify the supposition that a retrospective operation was intended to be given to the law.

On this view of the case the remedy is not the proper one, and the demurrer to the bill was properly sustained.

Judgment affirmed.  