Alexandria gazette. [volume] (Alexandria, D.C.) 1834-1974, 1895-10-08

Administrator, etc. From the Circuit
Court of Frederick county. Reversed.
Opinion by Judge r. 81. Cardwell. d.
w. Barton was appointed by decree
of the Circuit Court of Frederick coun-
ty, November IA, 1861, a receiver in the
suit of Stephenson VS.. Ridgway ct ais,
and directed to collect certain fund in
the cause, and after paying therefrom
costs and expenses, have the remainder
forthcoming at the next term (March
1869, subject to such order as the court
should then make. The fund was col
lected and deposited by him in bank
at Winchester. to the credit of Barton
& Williams, the law firm of which he
was a member, and to the credit OF
which account all rA6duciary funds re-
ceived by either member of the firm
were deposited, each meuber having 9
| private account in the same bank, to
which their private or personal funds
were deposited. In March, R62, the;
federal troops entered Winchester, and
the bank fed, with it assets, to Fasm-
vile, where it remained until the close
of the war. where there was a failure
or collapse, and the fund in this case,
along with all other funds in the oank,
perished. There was no, term of the
court in March, 1862, and no term for
1.-The transaction of the business of the
court until after the war. Barton, the
receiver, died in July, 1868, and there
was to the credit of this law firm, when
the bank failed, about s15, 900, includ !.
ing the fund received by him as re-
ceiver, amounting to about $500. In.
1888, r. S. Ridgewsy, q defendant to
the original suit, formally fled his
petition, claiming enc half of the fund,
that had gone into the hands OF. Barton,
and has lost by. the failure of the bank,
and seeking tohold Barton's estate and
that of his surety-bond for the money
lost; but no report was made on the
claim until July, 1895, when the Circuit
Court decreed in favor of Ridgeway.
This court on appeal from that decree
holds: That the just, equitable, and.
humane rule, deduciDle from the rea:,
soning in the case OF Elliott VS.. Carter
(9th Gratt.), and other cases applicable.
TO the case here, by which 6duciary's
liability is to be determined, is, that
where it does not appear that the
| fiduciary could, and ought to, haYe
done something other than he did, the
neglect of which resulted in the loss of
the fund entrusted to him, he should
not be held responsible, and that by.
this rule, applying, ,ss it does, with all
its force. to this case, the estate of
Barton, the receiver, cannot be held
responsible for the loss of the fund by.
the failure OF the bank.
Cahoone, Treasurer, VS.. McCulloch.,
From the Circuit Court. of Botetourt
county. Reversed. Opinion by Judge.
John w. Rely. The, Treasurer of
BotetourJ county made 9 motion in the
County Court against his predecessor
in Office and the sureties on his official
bond to recover judgment against them
for the amount due by the late Treas
| urer on account of county, levies which
he had collected. Upon hearing of the
motion at the May term, 1894, of the
County Court, the late Treasurer con-
fessed q judgment in open court for
the sum of money claimed, and at the
instance of the sureties the motion was
/
term. Upon the trial at the next term,
and before the jury retired from the
bar, the plaintiff suffered q non-suit.
He afterwards renewed his motion in
the Circuit Court, where he. was met
| by the plea of the defendants that the
cause of action was merged in the
judgment confessed by their principal
on the former motion in the County
Court. The plaintiff demurred to the
plea, but the. Circuit Court overruled
the demurrer and dismissed the mo-
ton. The court reverses the judgment
of the Circuit Court, and hold that the
judgment against the principal did not
merge the cause of action against the
sureties, and that the Circuit Court
erred in not sustaining the demurrer to
the plea instead of overruling it,.
George w. Survick VS.. Valley M'.Gual
Life Association, etc. From che Cor.
poration Court of the city Of Staunton.
Affirmed. Opinion by Judge j. a
Buchanan. In this case the Court held
that parties have the right to agree
that notice shall be given for assess
ments, and if the agreement be that
notice may be gwen by mail, 1t IS sutfl-
cient to prove the mailing, although
the party may never receive the notice,
and failure to pay the assessment within
the time prescribed gives the company
the right to declare the policy forfeited.
Where the company has declared the
policy forfeited for the non-payment of
such assessment, and there is nothing
in the practice of the company and its
course of dealing with the insured and
others, and known to him, such as to
induce the belief that SO much of his
contract as provided for the forfeiture,
for the non-payment of such assess
ment, would not be insisted upon, q
court of equity has no power to set
aside the forfeiture and reinstate the
| policy. Where the contract between
the parties provides THAT no question
shall be raised as to the right to make,
or the necessity of making, any NOR
tality assessment, except in the lifetime
of the member. or within six months