The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1872-03-28

neglect Is fully prored. Taylor and ala
bcnhaln, b. How. u. S. r.. 2S3. holds tba
iiducGtries stand OH the same footing a.
bailees, and can only be held answe,aLle fo,
actual or constructive negligence or wiifu
misconduct Judge Lee, in delivering tn,
opinion of the court in Elliott .. Carter ant
ats, 8 Grat., $50, says: alt is doubtfu
whether wise policy should ever REQUIRE
more Of trustee than that he should net il
good faith, and with the same prudence and
| discretion that he Is accustomed to exercise
| III the management of his own affairs"
Judge Christian then says: "Applyine
these principles to this case; Davis, the trlS
tee and commissioner Of the court. ought moi
| TO be held responsible because the. Confede
rate money, which the court, by its decree
lett in his hands, has perished before it could
be distributed by the court, - nc
na0td .fdes having been imputed to him.
1t was shown that the money was deposited
IN the trustees own name, and it was argued
that as the fund was not deposited to the
credit of the cause. but was mixed with the
trustees own funds. that he must be held re,
sponsible for the loss:
Judge Christian said: awe would not be
understood as at all disputing the authority
| of the cases relied on to show that where q
trustee deposits the trust fund with q
banker or i'm bank, and does not separnte il
from his own funds by designating it lis the
trust fund.- and 2 loss occurs in consequence
OF S.ca deposit. that loss must fall on the
trustee, as, for instance, where the bank fails,
or the banker becomes insolvent; but in
this case these authorities have application.
The loss here was not in consequence of The
deposit. 1t was not the failing of q bank
or the insolvency of banker, but
it was the sudden and irretrievable
destruction Of the whole currency of
a country by the termination of O civil
war which had destroyed the very power
that created it. The thing deposited for safe.
keeping-which was the thing received, to
wit: Confederate moncy-had perished with
out any default anywhere, but had perished
with the overthrow of the Government
which had spoken it into existence. Neither
the authorities relied OH nor the reason upon
which they are founded can have any appli-
cation to q case like this.
cit would be too harsh and rigorous and
too unjust; it would be in violation of those
well-settled principles, founded in reason and
| conscience, which control the action of courts
of equity, to hold that though trustee has
been guilty Of no nadld tides, no misconduct,
no negligence, yet he is to be held responsi.
Bile for loss which he had no part in crea.
ting and no power to prevent. But that
loss. we think, ought to fall upon those who
were entitled to the fund that perished."
The decree of the Circuit Court was re.
yerscd, with costs to the appellant Davis, the
exception Of Tate to his report was over.
ruled, and the report confirmed.
Since the decision Of this cause at Wythe.
vile, this court has also realfirmcd the prin'
ciples laid down in several other somewhat
similar cases yet unrcportcd. In "Nlyers's
executor Z. Zetelle and als.," decided few
days since, Judge Christian. deli yering the
opinion of the court, referred to the case OF
"Dayis .. Harman and alS.," and cited in sup.
port of the doctrine there laid down the fol
lowing additional cases: Jackson .. jackson,
1 Atk. r., 513; Belchcr .. Parsons, 1 Ambl. r.,
2lS: Rowth .. Howell, Eescy, 5G6 Adams
.. Claxton, 6 Id., 22S; Edmllnds q. Peake,
Beavan. 2l3. - Eng. Ch. r.; Franklin q
Osgood, II Johns. $50 kingsmakcr Z. kem
nell, Pen e. Watts r., 215; Zebacher, les
see, .. Smith, 8 Burn, IS; Burr .. Melvin,
Baldwin. 1872; Gray y. Lynch, s Gill, 430
And that decision concludes by saying
"The principles settled by the case of Elliott
U. Carter and ats, 8 Grat.,..559, were ap
proved and reafirmed in the case of Davis .
| Harman and ais. decided at the last Wythe
vile term of the court, not yet reported, ant
may now be regarded as the wcll-settled law
| Of this State"