
    *Bird’s Committee v. Bird.
    January Term, 1872,
    Richmond.
    1. Committee of Lunatic — Who Must Sue. — Where there is a committee of a lunatic, every suit respecting1 the person or estate of the lunatic, miist be in the name of the committee.
    2. Same — Suit by'Next Friend. — But where no committed of a lunatic has been appointed, or where the committee appointed has been removed, or a committee has interests adverse to the lunatic, a suit may be brought in the name of the lunatic, by his next friend approved by the court.
    3. Same — Same—No Previous Sanction of Court. — If a suit is brought in the name of a lunatic by her next friend without the sanction of the court, against her former committee, who has been removed, for an account, and he objects to the parties, the court may make an order for the cause to proceed in the name of the lunatic by some fit person as her next friend, if the one named in the bill is not such a one; or the court may direct the appointment of a committee, and the amendment of the bill, by making such committee a co-plaintiff or defendant in the suit.
    4. Same — Same—Same—Objection in Lower Court. — In such a case, if the defendant does not make the Objection in the court below, and there is an account and decree against him, the appellate court will consider that he has waived the objection; and will notreverse the decree on that account.
    5. Same — Retention of Funds — Scaling.—In 1836. the committee of a lunatic receives her estate, which consists principally of money, and he does not invest it but retains it in his own hands. During the war he pays her expenses in Confederate money. These payments are to be scaled as of the date of payment,
    6. Same — Commission—Interest.—Where a committee of a lunatic is charged in his account with the annual interest on money of the lunatic in his hands, he is entitled to his commission upon such interest.
    7. Same — Interest Charged on Interest — Case at Bar.— Whatever may be the correct general rule, under the circumstances of this case, interest should not be changed upon interest.
    This was a suit in equity in the Circuit court of Hanover county, brought in February 1867 by Ariadne P. *Bird, a lunatic, by her next friend, Thomas R. Bird, against Patrick H. Price, the late committee of the plaintiff, to surcharge and falsify the accounts of said committee settled by a commissioner of the County court of Hanover, by which he had been appointed, extending from May 31st, 1860, to March 31st, 186S.
    Price answered the bill, and the accounts were referred to a commissioner, who made a report, by which he reported to be due to the plaintiff, from the defendant, on the 28th of August ■ 1866, when the powers of the committee were revoked, the sum of nine hundred and eighty-nine dollars and forty cents. To this report the defendant filed five exceptions.
    It appears that the accounts of the committee had been settled up to May 31st, 1860, when a balance was reported against him of $589.79 of principal, and $224.98 of interest; and there was no question as to the correctness of this report. The commissioner in his report charges the committee with the whole as an interest-bearing- fund. In the years 1862 and subsequently, he deducts the expenses of the year from the interest and profits; and the balance, being scaled at the end of the year, is charged to the committee as principal; and no commissions are allowed on the interest charged in the year. The failure to allow commissions on the interest charged, is the subject of the first exception.
    On the 31st of May 1864, there is a balance of $31.55 of interest and profits over expenses, and this is scaled as of that date at 16.66 for one of gold; and this reduced to United States currency, at one for 1.50, gave $2.43; with which the committee is charged. This is the subject of the second exception; in which it is insisted the scaling should have been at 22.05 for gold. On the 1st of January 1865, the committee is credited with $1,083.57 Confederate money, over the interest and profits of that year; which is scaled by the commissioner *at 57.50 for one of gold, and this is reduced to United States currency at one for two; and the committee is credited with $37.68. This is the subject of the third exception; and it is objected that by this mode of scaling, the committee is allowed but $22.32 in gold for his expenditures from March 1863 to March 30, 1865, which included two years’ board and clothing of the lunatic, which upon the evidence was worth $150 a year in good money; and the commissions allowed is $24, which reduced at the same rate is forty cents for his care, labor and responsibility for one 3ear. The account is brought down to August 28th, 1866, when the powers of the committee were revoked, and the interest charged as principal. And this is the subject of the fourth exception; on the ground that the dealings of the committee had ceased March 31st, 1865. And the fifth exception is because the interest is aggregated with the principal, and interest is charged upon interest.
    The cause came on to be heard on the 3d day of October 1868, when the court overruled the first, third and fifth exceptions, and sustained the second ; and also being of opinion that after the 31st day of March 1866, interest should be no longer compounded against the committee, sustained the fourth exception to that extent; and fixing the amount due from the committee at $963.96, with interest thereon from the 31st of March 1866, made a decree in favor of the plaintiff against Price, the committee, for that amount. Price thereupon applied to the District court of appeals at Fredericksburg for an appeal; which was allowed.
    In January 1870, the cause came on to be heard in the District court, when that court reversed the decree, and directed the Circuit court to enter a modified decree, as follows: The transactions of the committee in his discharge of his duties shall be stated on the principle governing the accounts of guardian, and not otherwise. The receipts and disbursements made by the corn-mittee *shall be scaled as of the several dates when they were received or made, except that interest shall not be computed upon interest. From this decree Price applied to this court for an appeal; which was allowed.
    Griswold, for the appellant.
    Winn, for the appellee.
    
      
      Committee of Lunatic — Who Must Sue. — The proposition laid down in the first headnote in the principal case, that where there is a committee of a lunatic, every suit respecting the person or estate of the luna.tic must be in the name of the committee, is quoted with approval in Hinton v. Bland, 81 Va. 591, the.court saying: “Under this statute (i. e. sec. 48, ch. 32 of thé Code 1873), it was held in Bird v. Bird, 21 Gratt. 712, and in Cole v. Cole, 28 Gratt. 365, that a suit on behalf of a lunatic respecting his person or estate must be in the name of the committee, if there be one. And such, it would seem, is the general rule independently of statute.” See also, the principal case cited in Knight v. Watts, 26 W. Va. 207 and 218.
    
    
      
      Committee of Lunatic — Suit by Next Friend — No Previous Sanction of the Court — Objection in Lower Court. —The proposition, that if the defendant does not make an objection in the court below, to the suit brought in the name of the lunatic by her next friend, and there is an account and decree against him, the appellate court will consider that he has waived his objection, and will not reverse the decree on that account, is followed, in the case of Cole v. Cole, 28 Gratt. 371, the principal case being cited as authority.
      See the principal case cited and distinguished in Barton v. Bowen, 27 Gratt. 850; Taylor v. Lancaster, 33 Gratt. 21. See also, fool-note in Crigler v. Alexander, 33 Gratt. 674.
    
   STAPBFS, J.

This is an appeal from a decree of the District court at Fredericks-burg, reversing a decree of the Circuit court of Hanover. The bill -was filed in the name of the appellee, a person of unsound mind, suing by her next friend, against the appellant, her former committee. The object of the suit was a settlement of the accounts of the latter, and a decree for such sum as might appear to be due.

The first ground of objection taken in the argument here, is that the suit was improperly instituted in the name of the appellee; inasmuch as a lunatic is incompetent to maintain an action, except through the intervention of a committee. The bill was filed in January 1867 — a decree for an account rendered — the account taken — exceptions filed and considered — and in October 1868, a final decree rendered. During all these proceedings this objection was never suggested, nor was it mentioned in the petition for an appeal to the District court; and now, after the lapse of nearly four years, it is, for the first time, made in this court. Fvery rule of convenience requires that an objection for want of parties should be made at an early stage of the proceedings, that the expense and delay of a fruitless investigation and hearing may be avoided. It is true, that it may in some cases be taken for the first time in an appellate court; but only where it is palpable that a necessary party is wanting, in whose absence gross injustice may be done, or no final adjudication of the matters in controversy can be made. Had this objection been made *in the Circuit court, that court might have entered an order for the cause to proceed in the name of the appellee, by some fit and proper person as her next friend, if the one now named in the record was found, upon investigation, to be unqualified ; or the court might have given direction for the appointment of a committee, and the amendment of the bill by making such committee a party to the suit as co-plaintiff or defendant. The rule relied on by the appellant, is for the security and protection of the lunatic against the voluntary and officious interference of persons unskilled in the conduct and management of suits, or unfit to be trusted with the funds which may be the subject of a recoverjn It is also for the protection of the defendant, who might be held responsible a second time at the suit of the committee when appointed. So far as the appellee is concerned, her estate will be made perfectly secure by an order for the investment of the fund under the supervision of the court, or for the appointment of a committee, to whom it can be paid. And as to the appellant, he had the right to waive a rule intended for his advantage, as in this case he will be held to have done, by his silence and acquiescence. But whether he has or not, there can be no question of his perfect security under the decree of the court against a demand from any quarter.

But if the objection had been taken in limine, it ought not to have been sustained. It is .clear when there is a committee, that every suit respecting the person or estate of the lunatic must be instituted in his name. But suppose there is no committee, or, as in this case, the demand is asserted against a committee whose powers have been revoked, and who is charged with violating his trust and converting the estate to his own use. Is the lunatic without remedy? It is said that another committee should be-appointed. It may be that no one can be found willing to accept the office, or that the condition of the estate, *or the conduct,of the adverse party, requires the utmost promptness in the institution of legal proceedings. Prior to the revisal of 1819, the laws authorized the appointment of committees only for insane persons ordered to be confined in the asylum; and even then the powers of such committees extended only to suits for the collection of debts. It appears to have been the practice in some instances for the courts of chancery to appoint committees, for persons non compos mentis, who were not inmates of the asylum; but the committees were regarded as mere commissioners of the court, removable at its pleasure, and were in no manner authorized to sue or be sued in respect to the lunatic or his estate. If the proposition now asserted be correct, persons of unsound mind not confined in an aslyum were utterly without redress in the courts of Virginia. It was suggested, however, that in this class of cases an information might be filed in the name of the attorney general, with some responsible person named as relator. This practice has been sometimes pursued in England, because there the custody and the care of the persons and estates of lunatics devolve upon the lord chancellor in virtue of his general power as holding the great seal and keeper of the king’s conscience. And the attorney general, as the law officer of the crown, is authorized to institute suits in their behalf in the form of informations. Here the custody, control and management of the estates of lunatics are regulated by statute, and devolves upon persons appointed by the county courts. It is clear, therefore, there is nq analogy between the practice pursued here and that followed in the English courts. In Bolling v. Turner, 6 Rand. 584, the action was against a committee appointed by a chancellor having the management of the lunatic’s estate as a commissioner and receiver of the court; and it was held the action could not be maintained. Judge Brooke .said the error in bringing the action was in not distinguishing it from an action against *the committee of a lunatic appointed under the statute, where the lunatic is sent to the asylum, and is treated by the statute as “civiliter mor-tuus,’’ and the committee as executor, and responsible in like manner. According to this view, under former laws the legal incapacity of a lunatic to sue and be sued, was the result of the commission of lunacy and the confinement in an asylum. If under the present statutes every person who is adjudged a lunatic, and for whom a committee has been appointed, is to be regarded as “civiliter mortuus,” it would not follow that a person whose committee has been removed from office and the commission superseded, is also to be regarded as “civ-iliter mortuus,” and legally incompetent to sue. In all such cases, or wherever the interests of the committee clash with those of the lunatic, or when no committee has ever been appointed, the lunatic should be permitted to institute a suit in his or her own name, with some responsible person named as next friend and. approved by the court. This rule is a just and beneficent one, and has the sanction of a respectable and imposing weight of authority. Noreom v. Rogers, 1 C. E. Green, New J. R. 484; 1 Dan. Ch. Prac. last Ed. page 83; Shelford on Eunacy.

It is also insisted, that the Circuit court erred in applying the scale of depreciation to the disbursements made by the appellant in Confederate currency, for the support of the appellee. The appellant upon his qualification in 1836, received the estate of the appellee, consisting principally. of money. What disposition he made of it does not appear. There is not the slightest pretext.for saying that he invested it. The presumption is, that he appropriated, and thus became the borrower of, the fund. In January 1865, he-expended for the appellee five hundred dollars, and on the 30th day of March thereafter he expended eight hundred dollars in Confederate money. He now gravely insists, that in his settlement he is justly entitled to a credit for the Nominal amount of what was so expended. He declares that he had no alternative but to call in the money of the appellee, or let her starve and go 'naked. This pretension is not sustained by the record. It was his own money that was expended, and not that of the appellee. The proposition that the appellant should now be permitted to claim this disbursement as a valid payment to its nominal amount, of a debt contracted in United States coin or its equivalent, is abhorrent to all ideas of justice, and cannot for a moment be entertained. He is entitled to the value of what was so advanced, and he is entitled to nothing more. The act of March 3d, 1866, relied on by his counsel, has no application to the case. The provision in question applies to payments in full, or in part, of an amount payable under a contract, and accepted by a creditor competent to understand his rights and obligations.

It was insisted also, that the commuted value of the Confederate currency paid out by the appellant furnishes a very inadequate compensation for the support and maintenance of the appellee during the war. It is to be observed, however, that the appellant does not claim that he supplied the appellee with food and lodging in his own family. Neither in his answer, nor by his testimony, does he assert any such pretension. Before the war he paid others for performing that duty, and the presumption is he continued so to do, until his powers were revoked. He can therefore only claim to be reimbursed the amount and value of his expenditures in Confederate treasury notes. However small it may be when reduced to United States currency, it must constitute the measure of his remuneration and his recovery.

The appellant also excepted in the court below, to the refusal of the commissioner to allow him commission upon the sums annually charged to him for interest accruing upon the balances in his hands. This exception was well taken, and ought to have been sustained. *If the appellant is to be held responsible, as though he had invested the fund, he is entitled to the commission he would have received had he actually made such investment. In this respect there can be no substantial difference between the fund accounted for as principal and that accounted for as interest. The appellant, in his petition to this court for an appeal, makes no complaint of the decree of the District court upon this point. Under a fair and just construction of that decree, he would be entitled to, and no doubt would have been allowed, his commission upon the interest with which he is chargeable.

The appellant also claimed in the Circuit court, that his accounts as committee should be stated upon the principles applicable to executorial accounts, rather than those of guardians. By the decree of the District court, it is directed “that the transactions of the committee shall be settled and stated upon the principles governing the accounts of guardians, and not otherwise; that the receipts and disbursements made by him shall be scaled as of the several dates when they were received or made, except that interest shall not be computed upon interest.” Without undertaking now to decide whether, as a general principle, the rules governing in the settlement of guardians’ accounts shall be applied to the transactions of committees for insane persons, it is sufficient to say that, under all the circumstances of this case, it is proper that the appellant should be exempt from the payment of compound interest. As under the decree of the District court the appellant is exempt from this liability, he has no just cause of complaint in this particular. The claim for compound interest being disallowed, there can be no valid objection that the account in other respects is adjusted and stated upon the principles governing the accounts of guardians, as directed by the decree of this court in the case of Cunningham v. Cunningham, 4 Gratt. 43.

*On these grounds, I am of opinion there is no error in the decree of the District court, and that the same should be affirmed.

The other judges concurred in the opinion of Staples, J.

Decree of the District court affirmed.  