The times. [volume] (Richmond, Va.) 1890-1903, 1895-10-04
THE SUPREME COURT.
OPINIONS HANDED DOWN IN STAUN-
TOy YESTERDAY.
The Proceedings Of the Tribunal for the
Day-A List of .writs Of Error Grant
ed and Refused.

Bartcn's Executor against Rids way
Administrator. opinion by Judge X. ii.
CarGwcli. From the Circuit Court OF
Frederick county Reversed.
ID. W. Barton was appointed By a de-
cree Of the Circuit Court of Frederick
co'.rty. November II. 1850, receiver IN
the suit OF Stephenson against R-dgeway
ct ais. and directed to collect certain
find in the cause, and after paying
therefrom costs and expenses, have the
remainder forthcoming at the next term
March 1s62) subject 10 such order as
the court should then make. The fund
was collect "a aud deposited py MN IN 4
bank at Winchester to the or -iit OF Bar
ton q Williams. the late nrm OF NhlcN ne
was member and 10 the credit OF
which account all hduciary funds re-
ce.Ved by either member Of the frm were
posted, each member having q private
account IN the same bank, 10 Wnlch theif
private or personal funds were deposited.
~ March, 1852. the Federal troops entered
Winchester, and the bank He'd with its
assets 10 farmville, where IL remaihea
| until the close OF the war, Wheh
there was failure or collapse, ara we
fuul in this case. along with au othtr
funds In the bank, persisted. Ileie was
no term Of the court In March. ls'-, ana
no term FOR the transaction or the pD-l-
ness II the court until after the war
Barton. the recover. died in july, 1853
and there was 10 the credit or TINS law
| firm, when the bank failed about $l'.rJ
including the fund received by MN as
rccf lvcr. amounting 10 about S-Np. IN
1875 r. :. IsldgcWay. a defendant 10 enc
Ori0lnal suit. formally filed his pet ION.
claiming Ouc-half of the fund that mad
gone iLto the h-uds Of Barton and lost
Dy the failure Of the bank. and seeking
10 hold EariCn's estate and that or ms
surety bound fer the money lost. bat no
report was made on the clai n until July
| 1879, when the t'ircult Court uecreet m
favor Of HidgeWay. This court. on appeal
from that decree. holds: That the just
equitable, and humane rule, dcduclbie
from the reasoning I'm the case Of Elliott
agfin inst Carter. sth Graft. and other
cases appl. cable 10 the case here. by
which a fduc.ary's liability Is 10 be de-
termined is. that where 10 hoes 1ot APP
pear that tie fiducilry 'ould and ought
70 nave done something othsr than
what he did. the neglect OF VIII I'D re-
suited in the loss Of the fund entrusted
i0 him, he should not be hall r5sp0 lsibie,
ana that By this rule. applying as it
docs with an its force 70 th.s case, the
estate OF Barton. .-.e receiver cannot De
held responsible for the loss Of the fund
by he failure Of the bank.
Cdhoonc. treasurer. IS. McCulloch.
Opinion by Judge John " Rely Re
Nersed. From the Circuit Court Of Botc-
tourt county.
The treasurer Of Botetourt county made
motion I'm the County Court against
MS predecessor IN office and the sure
ties on his official bond 10 recover judg-
ment against them for the amount due
by the late treasurer on account Of cOun-
~ lcvics which ne had collected Upon
the nearing OF the motion at the May
term 1888, Of the County Court the late
treasurer confessed a judgment IN OTcn
court Tor the sum Of money claimed.
and at the instance OF the surcties TIE
motion was continued as 10 them until the
next term.
Upon the trial at the next term. and
before the jury retired from the bar.
the plaintiff suffered a non-suit He
afterwards renewed his motion In the
circuit Court, where he was met bv the
plea OF the defendants. that the cause
Oh dcuoh was merged In the judgment
confessed by their principal on the form
or motion In the County Court The
plalntin demurred 20 the plea. the Cir
Sull Court oVerruled the demurrer and
dismissed the motion.
Ihe Court reyerses the judgment Of the
circuit Court, and holds that the fudr-
ment against the principal did not merge
lue cause or action against the sureties.
I ana That the Circuit Court erred i'm moi
sustaining the demurrer TO the plea in
| stead Of overriding IT,
George w Surlck Us. Valley Mutual
| LIE As }eiation, &c. Opinion by judge
j. \. buchanan. Affirmed. From the Cor
| poratlon Court Of the city Of Stqunton
farties nave the right 10 agree that no
zee all be- given for assessments. and If
| ne agreement be that notice NAV be-
| gwen by mail, II Is sufficient 10 prove
me mailing although The party may
| never receive the notice ana failure 10
| pay the assessment within the time pre-
| scflDed, gives the company the right TO
declare the policy forfeited.
W mere the company has declared the
| Policy forfeited FOR the non-payment
! Ol tuch asses smcnt and there is nothing
| ~ the practice OF the company and ITS
| course OF dealing with the insured. ana
| Otncis, and known 10 him. such as TO
| induce the belief That so much of his con-
| ~ a. pluNlieu Tor tne forfeiture FOR
! the non payment Of such assessment
would not be insisted upon. a court OF
| equity mas no power 10 set aside the
forfeiture and reinstate the policy
W here the contract between the parties
/ provinces mat no question shall be raised
/ as 10 me right % make. or the necessity
or making any mortality assessment. eX-
! ctpt ia the lifetfmc OF the member or
| WITHIN SIX months from the time when
We assessment was made. and NOT then
I unless such assessment shall have been
| paid within thirty days from the date OF
| the nolce ID person. or from the date Of
malling the notice 10 the address Of the
/ member, no question can be raised as
To- the right Of the defendant company
| 10 make such assessment or the neces-
SHY Tor making H. unless Il is raised
Witnlh the time prescribed. AMI the cOndi-
lons upon which it can Il raised have
I
Crauford's Executor against Smiths
Administrator and others. Opinion by
JIitc bucnanan. From the Circuit Court
of Clarke county. Reversed.
Money received by the next Of kin as
distributes OF "a deceased person who was
supposed 10 have died intestate must be
accounted for 20 the decedent's estate bv
such persons upon the discovery of his
will.
And slaves received Nnder the same
circumstances a. fh9tf hgt D..
Sold by the next of kin. must be ac-
counted Tor at the price for which they
sold them although the slaves would
have been cmancipatcd by the result of
the war between the states; but slaves
not sold are not TO Doe accounted for
In cases OF mutual mistake. the parties
10 such mistake are not affected by the
lapse OF time or generally speaking, by
long as they remain. without any fault
OF their own. IN ignorance OF the mistake
which has been committed
Where money Gas been paid and re-
ceived under mutual mistake OF fact
and no fraud or misconduct can he inn
puted to either parry. interest will not
De allowed, except from the time when the
mistake was discovered and demand
made.
County School Board OF Albemarle coun-
~ vs.. a.. j. Farish's Administrator and
els. Opinion by Judge Harri5on. From
tie Circuit Court OF Albemarle county.
reversed.
This is an appeal from a decree of the
Circuit Court OF AlbcmaTle county inyOly-
ing questions OF chancery pleading.
Brooks Administrator vs. Crock. Cpin-
ion by Judge Harrison From the Circuit
Court Of Rockingham county. Affirmed.
This was an action OF detnue in the
Circuit Court OF Rockingham county 10
recover OF the defendant Charles j. Brock
S2.CoO bond alleged To have been de-
lvered 10 him by mistake OF his mother,
Sallie Brock. in her lifetime. The YER