
    
      Martha Jackson, by next friend, vs. Samuel McAliley et al.
    
    The Commissioner having in his hands, as receiver, eortain funds, to a share of which a married woman was entitled as tenant in common, without any order of Court paid out her share to her husband, she not joining in the receipt: — Eteld, that the payment was unauthorized; and that the Commissioner was bound to a'ccount to the wife for her share. Per Dargan, Ch.
    A Commissioner having a fund in his hands as receiver, must keep it until ordered to pay it out 5 if he pays it out without an order, he cannot exonerate himself without showing, that he paid it to one, who, if application had been made to the Court, would have been entitled to receive it under its sanction. Per Dargan, Ch.
    A husband’s marital rights do not attach on the undivided interest of his wife in a fund, in the custody of the Court. Per Dargan, Ch.
    "Where a decree is made overruling defendant’s defence and ordering him to account, additional evidence to show that defendant is not liable to account cannot be offered at the reference. Per Dargan, Ch.
    An order confirming the annual report of the Commissioner upon a fund in his hands, does not conclude the parties interested in the fund. Per Dargan, Ch.
    Where grounds of exception to a Commissioner’s report state matters which are objections, not to the report, but to the decree ordering the reference, the Chancellor should refuse to decide them 5 nor will thetCourt of Appeals decide them on appeal from the decree on tho report 5 the appeal should be from the decree ordering the reference.
    A Commissioner paying out money during his term of office to one not entitled to it, held bound to pay interest from twenty days after he went out of offico — that time being allowed him,- by tho Act of 1840, within which to turn over the fund to his successor.
    
      Before Dargan, Ch. at Chester, July, 1849.
    Dabgan, Ch. This bill has been filed by Martha Jackson, through her next friend, Dr. C. Thom, against her husband, William Jackson, and Samuel McAliley, the late Commissioner in Equity ojf this Court.
    The. cornplainant is one of the children of Rebecca Barber, to whom Daniel Green, by his last will and testament, bequeathed one-half of his personal estate. The complainant’s share of said personal estate, was the one-twelfth part. John M. Barber, the complainant’s father, was, by proceeding in this Court, appointed the guardian of all his children, including the complainant. His children were six in number. John Peay and James B. Pickett were the sureties on the guardianship bond of the said John M. Barber. Peay and Pickett filed a petition in this Court, asking to be relieved from their liability on the guardianship bond, or that Barber might be required to give ’new sureties, or to surrender his trust, and to account for and deliver the whole of his wards’ estate to some other person, by the Court for that purpose to be appointed.
    At February term, 1831, an order was made in the case of Pickett and Peay, vs. John M. Barber, as follows: “ It is ordered and decreed, that the letters of guardianship granted to the defendant as the guardian of his minor children, be revoked, and that he be compelled to account before the Commissioner for his guardianship, and deliver over the estate of his children into the hands of the Commissioner of this Court, unless he accounts fully before the Commissioner and gives new security,, to be approved by the Commissioner, for the faithful discharge of his duty, on or before the first day of January next.” John M. Barber failed to give the required security. His guardianship became unconditionally revoked, and on the 19th January, 1832, he surrendered certain negroes, the property of his wards, to the Commissioner in Equity. These negroes were hired out by the Commissioner for two or three years; and the negroes themselves, in proceedings in this Court for partition among the children of Rebecca.Barber, have been divided, and the portion of said negroes assigned to the complainant, has been settled by a decree of this Court to her sole and separate use, &c.
    On the 7th February, 1832, the said John M. Barber, surrendered into the hands of the Commissioner in Equity, in obedience to said order, choses in action belonging’ to his children, which the defendant, Samuel McAliley, says, amounted, with interest calculated up to that time, to $3,390 55. The defendant, Samuel McAliley, in his answer and exhibit, sets forth the amount of cash which he has received on account of the children of Rebecca Barber, the late wards of John M. Barber. The statement is informal, imperfect and confused. From the statement of his answer and exhibit, I understand that he has received upwards of $>6,000, on account of all the wards. But whether there is any thing more due or unpaid, is not stated, but I suppose that there is, from what the defendant says, in regard to the understanding between himself and William Jackson, when he paid over certain of those monies to him.
    There has been no order or decree of the Court dividing or distributing the choses in action, or the funds arising therefrom, among the children of Rebecca Barber. Yet the defendant, acting as Commissioner or receiver, has undertaken to distribute this fund on his own responsibility, and to pay certain claims and expenses, with which he supposed it to be chargeable, and has also made large unauthorized payments to the husband. In doing this, he has assumed the responsibility of paying it out rightfully, and as this Court would now order it paid, if no such payment had been made by the Commissioner. The Commissioner has no right to pay money which has come into his hands by virtue of his office, except under an order or decree of the Court. If he pays without this sanction, he always pays on the peril of the right person receiving it. In the case of the funds being the estate of a married woman, there is a peculiar impropriety in paying it to the husband, without the order or direction of the Court. She has an equity for a settlement out of it, and the fund is to be retained for that purpose, until the wife shall have an opportunity of making her election, either of asserting her right to a settlement, or of waiving it. If she had joined in executing the receipt, it would have been a different case — that would have been a waiver. But the complainant has never waived her equity for a settlement. It remains as perfect now as it ever was. Though the money has, for the most part, been paid to the husband, it has been wrongfully paid, and the Court will consider it still in the hands of the defendant, the said Samuel McAliley. The order under which he received the fund, gave him no authority to pay it out to any person. Yeldell vs. Quark, Dud. Eq. 57; Ward-law vs. Gray, 2 Hill, Ch. 644.
    
      The defendant, as the administrator of James McAliley, sets up a judgment in favor of the estate of his intestate, against the fund or estate to which Martha Jackson is entitled from the estate of Daniel Green. The judgment is against the husband, William Jackson. The claim is disallowed; and it is so ordered and decreed.
    It is ordered and decreed, that the payments made by the said Samuel McAliley to William Jackson, out of the funds of the complainant in his hands, are null; and that the said Samuel McAliley do account for said funds, as if said payments, or any other payments, had never been made.
    It is further ordered and decreed, that the Commissioner report all costs and expenses with which the share of the complainant, in the said funds, is chargeable. It is also ordered and decreed, that the Commissioner inquire and report what amount of estate, belonging to the complainant, has been collected by the said Samuel McAliley, and also what remains to be collected. It is also ordered and decreed, that the whole of the estate of the complainant, in the hands of the said Samuel McAliley, already collected, and which remains to be collected, be settled to the sole and separate use of the said complainant for life; remainder to her issue; and if she should die without leaving issue living, for the use of the said William Jackson. In the distribution among issue, the issue of any deceased child to represent the parent.
    It is further ordered and decreed, that the estate of the complainant be paid over to her trustee, Dr. C. Thorn. It is further ordered, that the costs and expenses of these proceedings, be paid out of the funds of the trust estate.
    In obedience to the order of reference contained in the foregoing decree, the Commissioner submitted his report, dated May 26, 1852, as follows:
    This bill is filed by the complainant, one of the legatees of Daniel Green, deceased, claiming an account and payment of her share of certain choses in action, and of the hire of certain slaves, transferred under an order of this Court by John M. Barber, her former guardian, to the defendant, Samuel McAliley, Esq., at that time Commissioner in Equity for Chester District. The defendant in his answer, sets forth a statement of the Various sums received by him, and of the payments made by him, for expenses of the fund, and to William Jackson, the husband of the complainant, in right of his said wife. The Court, at July term, 1849, ordered that the payments so made to William Jackson, are null; and the defendant is required to account for said funds, as if such payments, or any other payments had never been made. It was further ordered, that the Commissioner report all costs and expenses with which the share of the complainant in said fund is chargeable, and that he also inquire and report what amount of estate belonging to the complainant has been collected by the said Samuel McAliley, and also, what remains to be collected.
    At the reference held- in the case, the complainant’s counsel offered in evidence to charge the defendant, the exhibit filed with his answer, which contains a statement of the amounts received by him.
    The defendant, McAliley, offered various payments made by him, as follows:
    Receipt of Wm. Jackson, dated January 28, 1833, for $100 00
    
      “ “ “ “ December 12,1833, for 100 00
    “ “ “ ‘‘ January 22, 1834, for 150 00
    “ “ “ “ February 3, 1834, for 240 00
    “ “ “ “ July 2, 1834, for 50 00
    “ ■ “ “ “ January 13, 1835, for 250 00
    Two notes of Wm. Jackson, for hire of negroes of the Barber children:
    One for 1833, due 1st of January, 1834 - - - $27 00
    “ 1834 “ “ “ 1835 - - 60 00
    Receipt of Col. James Gregg, Counsel fee, Sept. 7,1837 50 00
    “ Com’rs. in Partition, March 18, 1835 - - 8 00
    “ W. F. DeSaussure, Counsel fee, July 2, 1833, 25 00
    
      Receipt .of Clarke & McDowell, Counsel fee, November 3,1833 .$100 00
    
      “ J. McCreary, Taxes, May 17, 1833 - 8 25
    “ Jno. Ferguson, Witness, June 21, 1833 - 1 00
    “ J. McCreary, Taxes, May 13, 1834 - 13 00
    
      “ J.' Ferguson, keeping negroes, and Auctioneer June 31, 1835 . 10 00
    
      “ J. Ferguson, Dec. 29, 1832 - 2 50
    The defendant also offers in evidence his report made at July Term, 1834, in which he credits himself with the payment of $550, to William Jackson.
    On the minutes of the Court at that term is the following order:
    “ Exparte, “ The Minor Legatees of Danl. Green, deceased Report of money received and paid away.
    “ The Commissioner having read his report of monies received and paid away, as received of funds of said legatees, and the same having been examined by Mr. McDowell, solicitor for the legatees, and no objection having been made to the same, ordered that the same be confirmed.
    HENRY W. DeSAUSSURE.”
    “ July 4, 1834.”
    The report at June Term, 1835, on the same subject, is also confirmed by order of the Court. The complainant objects to the payments to William Jackson, as well as to his noteSj offered by the defendant, as having been already decided by the Court.
    An important question arises here, whether or not the defendant is chargeable with interest on the various sums received by him. It is insisted by his counsel, that he is nbt so chargeable, or at least only from the filing of the bill — that he is a public officer, not liable to pay interest, or be sued, until a demand is made upon him; and that no demand was made, before the filing of the bill. It is further said, that the husband of Mrs. Jackson has received the money, and had the use of the negroes for the benefit of her and her family, and that he has a right to use the interest of the fund; and, further, that no order having been made to distribute the fund, the Commissioner had no right to be accountable for the interest until such order is made. The complainant insists, on the other hand, that the defendant was a trustee for her, and that he has wrongfully paid away the money to another, and that he must therefore account to her for the interest. Feeling doubts on the subject, I. have made the account in the alternative, so that it may be confirmed in any view the Court may take. There is nothing said in the Chancellor’s decree, on the matter of interest.
    All the other receipts, (exclusive of Win. Jackson’s) were for payments made to counsel, witnesses, &c. The defendant also claimed credit for a counsel fee to P. E. Pearson, Esq., of $>50, for which he produced no receipt, but for which he had claimed a credit in his reports to the Court, already referred to.
    [The report here contained, a statement of the amount received by the defendant,' and of monies paid out by him, excluding the payments to Wm. Jackson, and the payment to P. E. Pearson, and concludes as follows :]
    If the complainant is entitled to interest, as she contends, there is due to her, on the first day of July, 1852, the sum of eighteen hundred and eighty-two dollars and sixteen cents from the defendant, Samuel McAliley.
    The bill in this case was filed May 24, 1849. If the complainant is entitled to interest only from the filing of the bill, there will be due to her, the sum of nine hundred and seventy-eight dollars fifty-five cents, on the first of July, 1852.
    By the decree of the Court, made at July Term, 1849, there was found due to the complainant, the sum of f956 66, on the 1st day of July, T846, from the estate of James Barber, and from the sureties of John M. Barber.
    The negroes assigned to Mrs. Jackson, in the partition of the slaves bequeathed by Daniel Green, were settled, by order of the Court, on her, to her sole and separate use.
    
      The Chancellor having directed in his decree, that the fund due to the complainant from the defendant, should be paid to her trustee, Dr. Chas. Thorn, the Commissioner suggests to the Court, that Dr. Thom has removed permanently from this State, and is now residing, as he is informed, in the State of Mississippi.
    No application has been made for the appointment of another trustee in his stead.
    The fund due in this case, as well as that due from James M. Barber’s estate, and the sureties of John Barber, is ordered by the Chancellor to be settled on the complainant.
    The defendant, Samuel McAliley, excepted to the report of the Commissioner, on the following grounds, to wit:
    1. Because -the Commissioner erred in not allowing a payment of fifty dollars made to P. E. Pearson, Esq., as solicitor for complainant and others, in the case of Peav & Pickett against the same, the receipt for which payment was lost or mislaid, the said sum being paid as a counsel fee, and reported to the Court and approved of, and the same being also a moderate fee, considering the questions involved and the amount recovered.
    2. Because the Commissioner erred in charging the defendant with the sums reported to the Court, and which after examination by counsel for the said complainant and others, was approved of and confirmed by the Court.
    3. Because the Commissioner erred in charging the defendant with the hire of negroes, of which the complainant had the service and labor.
    4. Because the Commissioner erred in allowing any interest in said account against the defendant.
    5. Because the complainant having the whole of. her property (except that in controversy) settled upon her, no future settlement should be made, and the payment to her husband was right and proper.
    The case was heard on the exceptions before Johnston, Ch., at June sittings, 1852, who made the following decree:
    
      JohNston, Ch. On hearing the report of the Commissioner in the above case, filed 26th day of May, 1852, and exceptions filed thereto by defendant, Samuel McAliley ; It is ordered and decreed, that the first exception be sustained by the consent of plaintiff’s solicitor. The second and fifth exceptions are overruled? the report being in conformity with a previous decree of this Court. The third exception is overruled, being founded on an error in fact, no negro hire being charged in the report. The fourth exception relates to interest. The Commissioner has not decided the question, whether interest should be charged ; and if any, at what time the fund should commence to bear interest, The money was paid into the hands of Mr. McAliley, while he was Commissioner of this Court, and in pursuance of its order. During the time he was Commissioner, he is not chargeable with interest, but when he went out of office it was his duty to have turned over the money to his successor, and not having done so, he has held the money as a private individual, and no demand other than the legal requisition was necessary to render him liable for interest, and he should be charged with interest from twenty days after he went out of office; and let the report be amended in conformity with the principles here laid down.
    It having been suggested to the Court, that Charles Thorn, the trustee of Martha Jackson, has left the State and abandoned his trust,
    It is ordered and decreed, that the defendant pay into the hands of the Commissioner of this Court, the amount which may be found due, in conformity with the principles of this decree: That it be referred to the Commissioner of this Court, to ascertain and report whether Charles Thorn has left the State, and if so, to report upon the fitness of some person to be appointed trustee, who may apply for said appointment; and when the said appointment is regularly made, the Commissioner is hereby directed to pay over the fund here referred to, to said trustee, and the same is to be vested in him for the separate use of the said Martha Jackson, during her life, and at her death, to be divided amongst her issue, agreeably to the statute of distributions; and if the said Martha should leave no issue living at her death, then to Wm. Jackson, her husband, freed from all further trusts.
    It is further ordered, that it be referred to the Commissioner of this Court, to ascertain and report what would be a reasonable counsel fee for complainant’s solicitor in this case.
    The defendant, Samuel McAliley, moved this Court to modify the decree of Chancellor Johnston, on the following grounds, to wit:
    1. Because the Chancellor erred in not sustaining the second exception to the Commissioner’s report, which is : “Because the Commissioner erred in not allowing the defendant credits for monies paid by him to William Jackson, the husband of the complainant, and which payments are reported specially to the Court, and which payments after the examination of solicitors of complainant and others, were confirmed by the express order of the Chancellor.”
    2. Because the Chancellor erred, in not sustaining the fourth exception of the defendant, which is: “ That the Commissioner should not have allowed any interest on the money in his hands, which had been paid to the husband of complainant.”.
    3. Because the Chancellor erred in not sustaining the fifth exception of defendant, which is, “ Because the complainant having had her whole property, excepting the amount in controversy, settled upon her, no.additional settlement should have been made, and especially so, in as much as her husband had received the same, and she had had to a certain extent the benefit thereof.”
    4. Because the Chancellor erred in directing a settlement, without first having ordered a reference to inquire into the propriety of the settlement.
    
      M. Williams, for appellant.
    Rutland, contra.
   The opinion of the Court was delivered by

Dargan, Ch.

I think it will scarcely be doubted that a Commissioner in Equity has no authority to pay over monies that have come into his hands as a receiver without the order of the Court. His whole duty, unless otherwise ordered and directed, is simply to receive and safely to keep the fund. Such fund is in fact in the safe keeping of the Court itself, which is obliged to use the personal instrumentality of its officers in the performance of this duty.- What right has the Commissioner to apply or distribute funds that are in the charge of the Court, and which are in his hands only as a depositary 1

If a Commissioner, under these circumstances, undertakes to pay out monies, he assumes the responsibility of paying it out to the right person, — to the person who would be entitled to receive it, if it was done in a formal manner under the sanction of the Court. His unauthorized payments would not be permitted to have the effect of defeating the rights of the parties, or varying or modifying them in any way. These are propositions that will hardly admit of dispute.

The fund in question was the estate of the complainant Martha Jackson, the wife of the defendant, William Jackson. It was a fund derived from her equitable choses, placed in the hands of the defendant McAliley for collection and safe keeping.

I refer to the circuit decree for the manner in which the estate of the complainant in this fund originated, and in which it came into the possession of the said Samuel McAliley. It was her unascertained, undivided interest or share in certain choses in action derived from the estate of Daniel Green, to which she was entitled as tenant in common with her five brothers and sisters. There was not, and never has been any decree making a partition of the fund, or severing the rights of the parties. In Verdier vs. Hyrne, 4 Strob. 463, it was decided by the Court of Errors, that, where a married woman was possessed of a slave as tenant in common with one or more other persons, the marital rights did not attach, there being no partition. And this, though the tenants had a vested legal estate in common, and though there had been a decree for partition in the wife’s life, which had not been made before her death.

It is not disputed, that the complainant, Mrs. Jackson, had a right to a decree for a settlement when this fund first came into the hands of the defendant as the receiver, under the order of the Court. Nor could it be disputed, that, if the fund still remained in the hands of the defendant, she would, at this day, be entitled to the same decree.

It is said, however, that the share of the fund to which the complainant is entitled, has for the most part, if not altogether, been paid over to the complainant’s husband by the defendant: and that, although this has been done without the order of the Court, or any waiver by the wife of her equity, the marital rights have thereby attached.

But the Commissioner, as I have before stated, has no right to pay out monies in his hands without the order of the Court. If he does, it is at his own peril; and upon the responsibility of paying it out to the right parties, and in such manner and on such conditions as the Court would have ordered it paid. The rights of the parties are not to be defeated, varied, or modified, by such unauthorized and illegal payments.

Upon this, and similar reasoning, the Circuit Court, at July term, 1851, decreed that the payments by McAliley to William Jackson were null, and that the complainant was entitled to a settlement of the fund; and that McAliley pay over to her trustee, her share of the said fund, as if the payments to Jackson had never been made. The decree also referred it to the Commissioner to report upon the accounts.

At a subsequent stage of the proceedings, (when the case was before the Commissioner on reference,) the defendant offered some further evidence in opposition to the right of the complainant for a settlement. The Commissioner has reported this evidence. It consists of extracts from the minutes of the Court for July term, 1834, and other documents which are of record.

The Commissioner in his annual report at that term, on the estate of the infant legatees of Daniel Green, states an account, in which he credits himself with $550 as paid to William Jackson. On the minutes of the Court is an order in words as follows :

“ Ex parte
The minor Legatees of Daniel
Green, deceased.
Report of money received and paid away.
The Commissioner having read his report of monies received and paid away, as received of the funds of the said legatees, and the same having been examined by Mr. McDowell as solicitor for the legatees, and no objection having been made to the same, ordered that the same be confirmed.
(Signed) HENRY W. DeSAUSSURE.
July 4, 1834.”

A similar report at June term, 1835, was also submitted and confirmed.

It is contended, that the rights of the complainant are thus concluded (as to the extent of the charges made for payments to Jackson in these reports,) by the judgment of the Court.

The first objection to the evidence is, that it was not submitted at the proper time. The bill and answer made the question directly, as to the right of the complainant to a settlement. The Court heard and decided this question. The Commissioner was ordered to “report all costs and expenses with which the share of the complainant in said funds is chargeable.” He was also ordered to “ report what amount of estate belonging to the complainant has been collected by the said Samuel MeAliley, and also what remains to be collected.” The evidence which has been cited, was foreign to the inquiry with which the Commissioner was charged: and bore upon a question which had already been adjudicated.

But the evidence, if it had been brought forward at the proper time, would, if admissible at all, have been perfectly inconclusive. It was an ex parte proceeding, in which the Com.' missioner alone was a party. The complainant was not a party, nor was she represented by any one. It is recited in the order, that the report had been examined by Mr. McDowell, “solicitor for the legatees.” It does not say that Mr. McDowell assented; but that no objection having been made, the report was confirmed. It does not appear, that Mr. McDowell was the solicitor of the complainant, or of the infant legatees, in reference to their matters of account with the Commissioner; or that it was necessary for them to have a solicitor, after their funds had come into the safe keeping of the Court.

It is as well for me to state here, broadly, (for there seems to be some misapprehension upon the subject,) that these annual reports and accounts which the Commissioner is required to make, conclude nothing, as to the rights of the parties whose estates or funds they purport to give an account of. They are the ex parte reports of the Commissioner, and commit no body but himself. Their object is to communicate information from the Commissioner to the Court, and to any party who may be desirous of looking into his administration. It is intended as a check upon the Commissioner. But after all that a Chancellor can do in supervising the annual returns of the Commissioner, it affords but a very imperfect check, and a very inadequate security. I might say much more upon this subject, but I forbear.

All that I have said, in vindication of the decree of July term, 1851, has but little pertinency to the issues now before this Court. No appeal has been taken from that decree. In pursuance of the decree the Commissioner has held his reference, and at July term, 1852, he submitted his report. The cause came before the Court at that term, on this report and the exceptions.

The defendant made the same opposition to the complainant’s claim for a settlement, in the form of exceptions to the report, that he had previously made on the circuit trial, and which had been decided against him. In addition to these, he excepted, that $50 paid as a fee to P. E. Pearson, had not been allowed as a credit on his accounts. The complainant’s solicitor withdrew, on the last circuit trial, his objection to this item as a credit; and it was allowed. Thus that question was disposed of.

The defendant also excepted to the report, because the Commissioner, in stating the accounts, had charged interest against him. This question as to interest, was the only new issue in the case,' — the only point that had not been previously adjudged.

The Chancellor who last heard the cause (on the report and exceptions,) very properly declined to review, and decide any of the matters that had been adjudged by the preceding decree. To have done so, would have been to entertain appellate jurisdiction. And in the same way, his successor might have been called upon to consider and reverse his decision. It is needless to pause here, for the purpose of shewing the utter absurdity of any other rule than that by which the Chancellor was governed.

The Commissioner, in his report, stated the interest account in two ways. He stated it first, on the supposition that the complainant was entitled to recover interest from the time the defendant had received the fund ; which was the 7th February, 1832. Stating the account in this way, he found a balance due the complainant on the 1st July, 1852, of $1,882 16. On the supposition that the complainant might not be entitled to interest, except from the filing of the bill, which was the 26th May, 1849, the Commissioner has stated the interest account in that way. Stating the account on this principle, he finds a balance due to complainant, 1st July, 1852, of $978 55. The defendant excepted to the report for allowing interest at all.

Thus the case was presented to the Chancellor; who, adopting neither of the alternatives presented by the Commissioner’s report, decreed that the defendant was liable for interest from the time he went out of office.

This is an appeal from that decree. The grounds of appeal are as follows: 1. Because the Chancellor erred in not sustaining the second exception to the Commissioner’s report, which is: because the Commissioner erred in not allowing the defendant credits for monies paid by him to William Jackson, the husband of the complainant, and which payments are reported specially to the Court, and which payments after the examination of the solicitor for complainant and others was confirmed by an express order of the Court.”

The third ground of appeal is, because the Chancellor erred in not sustaining the sixth exception of the complainant, which is, because the complainant having had her whole property, except the amount in controversy, settled upon her, no additional settlement should have been made; and especially so, iuasmuch as her husband had received the same, and she had, to a certain extent, the benefit of it.”

It is perfectly obvious that the errors charged in these two grounds, no appeal are errors (if they be such) which are imputable only to the first decree ; and from which, as to these grounds no appeal has been taken. The Chancellor who presided at the last trial, and heard the cause on the report and exceptions, did not affect to decide the questions involved in these two grounds of appeal. He neither affirmed, nor denied the propositions of the appellant. He only sought to carry out and to enforce a previous decree in the cause; which he found upon the record, which, as a judicial'order, was binding upon him, and which was irreversible, except by way of appeal. If the decree had in his judgment been erroneous, (which I feel authorized to say was not the case,) he would not, and could not, have reversed or modified it. No error is imputable to his decree on this account. But the appeal should have been from the first decree, of which the appellant in this respect makes no complaint.

The second ground of appeal is, because the Chancellor has erred in not sustaining the fourth exception of the defendant to the Commissioner’s report; which is, that the Commissioner should not have alllowed any interest on the money in his hands which had been paid to the husband of the complainant.”

This Court concurs in the decree of the Chancellor as to the interest. For, assuming the first decree to be correct in ordering a settlement of the fund, (and for the purposes of this appeal trial, and until said circuit decree is reversed, this must be assumed,) the first default which the defendant committed in respect to this fund, was when he failed to pay it over to his successor, on his retirement from office, as by law he was required to do.

A Commissioner in Equity is not liable to pay interest on money which has come into his hands as a receiver or simple depositary. He is required to receive, and forbidden to pay out, or to invest, on his own mere motion. In such cases it would be unjust to charge him with interest — which, if it were allowed, would consume all his profits. But if he is ordered to pay out, and a demand is made by one authorized to receive ; if he is ordered to invest a fund, or to make any appropriation or disposition of it, either by the law, or by a special order of the Court, and omits to perform his duty, he is, and should be, liable for interest. There is an express provision in the Act of 1840, which requires all Masters and Commissioners in Equit}r to pay over the monies in their hands to their successors in office. For the purposes of this case, the fund must be considered as in the hands of the defendant, when he retired from office; and his omission to pay it over to his successor, as by law required, subjects him to liability for interest from that time.

It would not be wise to hold, that the hottest errors of public officers should shield them from liability for the losses which fall upon others, as the consequences of those errors. In the first place it would be impossible to determine, whether the error was unintentional or otherwise. And an imperative public policy would forbid the existence of such a principle. High official functionaries, who set themselves up as qualified to perform the duties, and to administer the affairs of their offices, for which they are supposed to receive an adequate remuneration, must be held to a strict accountability. Their correct deportment, and the manner in which they discharge then-duties, vitally affect the interest and well-being of the whole community. To them, of all others, must the legal maxim apply, that they must be presumed to know the law. Honest errors, more or less, are incident to and inevitable in all officers. But the stipends are supposed to be sufficient to afford a just remuneration for the labors, and a reimbursement for their losses and risks. If this is not the case, it is the folly of the incumbent to have taken the office.

It is ordered and decreed, that the appeal be dismissed, and that the circuit decree be affirmed.

JohnstoN and Wardlaw, CC., concurred.

Decree affirmed.  