Staunton spectator. [volume] (Staunton, Va.) 1849-1896, 1858-05-19

LOT your Idoe poP0As
May II, 1853. @
NO. Kinney, Esq, has requested me to u, IN
terpret and give my opinionon the prsctlca1i.ty
of the first section of an act OF the Generai as,
sembly concerning money paid into ooqrt, anu
providing for DISAPPOINTMENT OF General hecelv-
ers, and for the settlement OF Receivers ac-
counts, passed June Sd, 1852.
Said section requires the Clerks of the County,
Corporation and Circuit Courts to report to their
resnective Courts at the first term thereof after
the 1st day of July then next, statement snow
inc the name of the suit, &C., in which any mo-
new has heretofore been paid into Court, or into
Rank or in other place Of deposit, or to any per-
son specially appointed to receive the Same un-
der anv Indictment, order or decree of such Court,
and which money remains undlsoursea IN WHO'S
or in Dart at the date of such report, &C.
Nv opinion is, that the law makes it the duty
of the Clerk to do what no mortal man could do'
viz:
LIST. To report all money paid into Court from
the origin of the Court, or into Bank, or to any
special Receiver. The old ChaEcery court mere
was established in 1901, and has existed ever
since, under different names; as 'the Circuit Su
perior Court of Law and Chancery"-and now
the Circuit Court"
Various persons have held the Office of Clerk
and Receiver; much money has at various times,
gone into the hands of special Receivers, none OF
whom have reported their actings and doings IN
many instances. This law of 1852, gives the
then existing Clerks no power to call those per-
sons to account, or to ascertain what IS IN tnelr
hands, and yet requires him to report it.
End. The law being passed on the Sd OF june
1852, required this accounting to be had at the
first term, after the 1st day of July following,
which might have been in one month after It's
passage, when no Clerk could have reported
even such matters as appeared in the records,
except after months, or perhaps years, OF careful
investigation.
Sd. Another serious objection to the practical
bilty of this section will be readily understood
by every lawyer familiar with proceedings in
Courts Of Chancery. The law requires the Clerk
not only to report what the records disclose as
to funds In Court, bpt also how much OF them
remain undisbursed; to whom they have been
paid, and the Bank or depository in which they
have been placed. Funds in Court are as often
in the hands of Commissioners or special receiv-
ers, as in those of the General Receiver; without
the power Of compelling these special Receivers
to disclose their transactions, how could the
Clerk report whether the funds had been ais
bursed as ordered by the Court. or the person to
whom they had been paid, or the place where
they had been deposited9
Again, in many cases, there are successive de-
crees of distribution. These DEGREES directing
the money on hand to be paid out, but whether
they are 80 or not, can never be known until the
Special Receivers make reports.
Again, there are often, after DEGREES OF dis
tribntion, orders requiring the parties to pay
back sums overpaid to them, some portions paid
back, others not. How much none can know
but the agent appointed by the Court to act IN
the matter-and no man could state, with acou'
racy, the condition of such fund without di
rect reference of the case to Commissioner te
investigate and report upon the facts OF eacl
particular case. No Clerk could, while attend
ing to his other duties, make any such investiga
ton.
1t is, probably, on these grounds OF utter Inn
practicablity of the law, that the able and learn
ed Judge of this Circuit has never required 1T
enforcement; whether it has been enforced any
where am not informed. How it could be en-
forced am unable to conceive on account OF III
intrinsic defects. THOMAS g. MtOA'E'
! May 10, 1853.