Lister v. Vivian , 8 Port. 375 ( 1839 )

COLLIER, C. J.

— The authority of the commissioners to adjust the administration accounts of the plaintiff, it is said is founded on the order of the judge of the Circuit court, and the right of the judge of the Circuit court to appoint them, is deduced from the first section of the act of eighteen hundred and thirty-three, (Aik. Dig. p. 253, s. 41,) which is as follows:

“ In all settlements hereafter to be made by executors, administrators or guardians, with the Orphan’s court, in which the judge of said court may have been employed as counsel, or may be otherwise interested in such settlement, it shall be the duty of said judge to give immediate information of the fact to one of the judges of the Supreme or Circuit courts, who shall thereupon issue a commission to three persons of the proper county, directing and empowering them to proceed to make such settlement under the rules and regulations now prescribed by law.”

Without pretending to decide whether a majority of the commissioners directed by the act to be appointed, are competent, independent of the co-operation of the third, to make a settlement, we are clear that the commission issued by the judge of the Circuit court should appear of record. This commission is a special authority, and the only warrant for the acts of the commissioners. Its existence and legality cannot be supplied by intendment, or by a recital in the minutes of the clerk of the County court, or the report of the commissioners; but the paper itself must appear, that it may be seen whether it furnishes a warrant for the apts done under its authority. This conclusion is too clear to require further illustration. It is fully sustained by the rule that requires' the records of a court of limited jurisdiction, to disclose every fact essential to the validity of its sentences.

The report floes not, fix a liability upon the plaintiff, even according to the most unfavorable interpretation of its terms, unless it be for so much as relates to the negro hire. It may be true, that the plaintiff, as administrator of his intestate, received all the notes mentioned in the report, and yet not be chargeable for their nominal amount in money. To be personally liable, it should have been shown, either that lie had collected or appropriated them to his own use, or else that they were lost by his neglect, &c.

But, apart from all these objections to the proceedings of the commissioners, they afford no warrant for an execution. The statute which gives an execution on the decrees of the Orphan’s court, enacts that “all decrees made by the Orphan's court, on final settlements on the accounts of executors, administrators and guardians, shall have the force and effect of judgments at law, and executions may issue thereon for the collection of the several distributive amounts agaiust such executor, administrator or guardian”—(Aik. Dig. p. 252, s. 37.)

There can be no pretence for saying, that in the case at bar a decree was rendered. There is nothing, as we have already shown, but a very imperfect settlement, reported by two of the commissioners. The act of eighteen hundred and thirty-three does not expressly authorise the rendition of a decree in such a case, so that it may well be questioned whether the judge of a county court, as an executor, administrator or guardian, is authorised to render a decree in his favor, or may be required to render one against' himself, (and perhaps it is not clear that the commissioners can consummate their settlement by a decree.) There, then, being no basis for an execution, it issued improperly: and had the judge of the óounty court been competent to entertain jurisdiction, it should have been superseded, and quashed on motion. Yet, notwithstanding the irregularity of the execution, we cannot entertain the case, because there is no such order or decree, as is revisable on error.

We have been thus particular, that a guide may be afforded to ulterior action. It remains but to declare, that the- writ of error must be dismissed.