
    White’s Executors v. Johnson and Others.
    Saturday, May 11th, 1811.
    i. Commissioner's Report — When No Exception Necessary. — A commissioner’s report, if erroneous upon its face, may be objected to at the hearing of the cause, tho’ no excéption be previously filed; and, also, in the appellate court, though no exception appear to have been taken in the court below: but, without such exception, it cannot be impeached on grounds, and in relation to subí ects, which may he affected by extraneous testimony.
    2. Administration Account — Interest — Extraneous Testimony.  — Whether interest ought to be charged in an administration account, isa question, the decision of which may d epend upon extraneous testimony. .
    ,3. Commissioner’s Report — Failure to State Notice Given — Effect.—A failure to set forth in a commissioner’s report that notice was given to the parties, is not an error sufficient to reverse a decree, if no exception to the report appear in the record.
    Several points, on which no opinion was given by the court, were made in the argument of this case. So much, therefore, only need be reported as comes within the decision.
    The suit was brought in the county court of Pittsylvania, by Johnson and. others, legatees of Jeremiah White, against William Clarke and William White, his excu-tors, *for a settlement of their administration account, and to recover a balance alleged to be due to the plaintiffs. The county court referred the account to commissioners, who made a report, in which, after charging no interest, either for or against William Clarke, the acting executor, they stated a balance to be due him of •seventeen shillings and seven pence.
    Whether notice was given to the plaintiffs did not appear ; but the cause was regularly set for hearing, and no exception to the report appeared in the record.
    The county court dismissed the bill with costs. Upon an appeal to the superior court ■of chancery for the Richmond district, the present chancellor, by an order in vacation, directed Master Commissioner Greenhow to ¡state the account anew, upon the exhibits contained in the record ; which being accordingly done, and interest charged upon each item of debit and credit, from the date of such item, a balance appeared due, from the •executor, of 1161. 3s. 8d.
    Exceptions were filed to this report, but •overruled by the chancellor, who reversed ■the decree of the county court, and decreed to the plaintiffs the last-mentioned sum with costs. The defendants thereupon appealed.
    Wickham for the appellants,
    contended that the county court decree was correct, ¡since no exception was taken to the report •of the commissioners; the rule being, that whenever a report is not necessarily wrong upon its face, an exception must be taken. In support of this position, he relied upon the eases of Brewer v. Hastie, 3 Call, 22, and Perkins v. Saunders and Wade, 2 Hen. & Munf. 420.
    The refusal to allow interest might have been proper *upon the circumstances of the case, which, it is to be presumed, appeared in evidence to the commissioners.
    Munford, contra.
    The not allowing interest was an error upon the face of the report; for, generally, interest ought to be charged both for and against the executor ; according to Jones v. Williams, 2 Call, 106, and Gran-berry’s Ex’r v. Granberrys, 1 Wash. 246. If any special circumstances existed to vary this rule, they should have been stated, and cannot be presumed : for, in suits in chancery, the whole evidence being always spread upon the record, the court can presume nothing that is not proved : neither can the appellate court presume anything in favor of the decree ; in which respect it is not like a general verdict, 
    
    Another error appears on the face of the report. Notice of the meeting of the commissioners should have been given to the plaintiffs,  and this ought to have been stated by the commissioners in their report. It is always the practice of the superior courts of chancery (to which the county courts are bound to conform) for the commissioners to set forth in their reports the notice, and proof of its service. The commissioners in the county court not having done so, their report was radically defective, and no decree should have been made upon it, though no written exception was filed.
    Wickham, in reply.
    The objections for want of notice should have been made in the county court. Can there be a different rule as to reports of commissioners from that which prevails with respect to deposition? If the exception to a deposition, for want of notice, be not taken before the hearing, it may be read.
    
    "It is not necessary, neither is it the practice, for the commissioners to set forth the notice in their reports.
    The vouchers before the commissioners are never part of the record. Is not a document proving the propriety of an exemption from interest as much a voucher as any other? I admit the onus probandi lay upon us ; but the duty was to be performed before the commissioners. The sole place to produce evidence of circumstances was there.
    
      
       Commissioner’s Report — When No Exception Necessary. — A commissioner’s report, if erroneous upon its face, may be objected to at the hearing of the cause, though no exception be previously filed, and also in the appellate court, though no exception appears to have been taken in the court below, but without such exception it cannot be impeached on grounds and in relation to subjects, which may be affected by extraneous testimony. To sustain this proposition, the principal case was cited in Mosby v. Mosby, 9 Gratt. 608; Evans v. Shroyer, 22 W. Va. 583; Sandy v. Randall, 20 W. Va. 251; Hyman, Moses & Co. v. Smith, 10 W. Va. 317; Estill v. McClintic, 11 W. Va. 413; foot-note to Cole v. Cole, 28 Gratt. 365; foot-note to Cookus v. Peyton, 1 Gratt. 432; foot-note to Simmons v. Simmons, 33 Gratt. 451.
      For further information on this subject, see mono-graphic note on "Commissioners in Chancery” appended to Whitehead v. Whitehead, 23 Gratt. 876.
    
    
      
       Administration Account — Interest — Extraneous Testimony. — Thus, if a commissioner’s account fails to charge an administrator with interest, it cannot be impeached on that account in the appellate •court, if no exception has been filed in the court below, for whether interest ought to be charged might have been affected by extraneous testimony. Estill v. McClintic, 11 W. Va. 413, citing the principal case. ‘To the same effect, the principal case was cited in Peters v. Neville, 26 Gratt. 559.
      On the question as to when officers of the court are liable for interest on money in their hands, see cases collected in foot-note to Hunter v. Spotswood, 1 Wash. 145.
    
    
      
       See Ford v. Gardner, 1 Hen. & Munf. 72.
    
    
      
       Campbell and Wife v. Winston and others, 2 Hen. & Munf. 10.
    
   Wednesday, June 12th. The following opinion of the court was delivered by Judge Roane:

“This court, while it is not disposed to deny that reports, which are erroneous upon the face of them, may be objected to at the hearing, or excepted to in the appellate court, although the same were not specially excepted to by the parties prior to the decree made in the cause, is, on the other hand, of opinion, that without such exception, reports shall not be impeached on grounds, or in relation to subjects, which may be affected -by extraneous testimony ; of which nature is the report in this cause, so far as it relates to the interest claimed against the appellant ; and that the report, on which the decree of the county court is founded, not being objected to, is conclusive between the parties.”

Decree of the superior court of chancery reversed, and that of the county court affirmed.  