The times. [volume] (Richmond, Va.) 1890-1903, 1898-01-21
SUPREME COURT OF APPEALS
DIs.sts Of Important Opinions LANDED
Down on Yes !srdsy.
GUARANTEE CO. VS.. LYK, cHBURGDiEK
,.,o,,i,o Pleading Ari 1nr Out OF
the Hammer Defsication Keve w" an"
sentBack- ofNegii. '@"ce'
V.ury. scqaestration, sepsr Wv
E.tate. Mechanics Lions and
Garnishments.


cd down by the Supreme Court OF Ap-
peals yesterday;
chcsapelkc and Ohio Railway Co. vs.
Chambers. Affirmed. opinion by keith,
j..
Tn. o.mpaay owns. occupies and man
.r.s 4 dam on James river extending
,,o,,, ,he north bank 10 shores Island
,.ar, Of the dam called "a guard bank OK
,.,as partly across the island. ID AYERS
~. ,o,atsny neglected 10 keep the guard
- 4, GOD order as in duty bound ana
-r,i,,lne IL 70 &c; out OF order the IS
i,I vas greatly damaged and rendered
:. 1n;le value. that the dam was origi-
Lii, constructed by the Canal Company
"a IA. virtue OF various acts OF Assembly
- - yroad company had succeeded To
IN tie rights and responsibilities. De-
.,,,,,cr VI declaration over-ruled. and no
Co.. tsken on the avorment OF transfer
., rights .,nd responsibilities OF the Canal
Company. A..
rho dcf.nCe mainly relied on was the
condemnation proceedings when the oarn
80 brilt 1pesc fan 10 disclose the sum
awarded. or the particular elements OF
Ssrnase considered by the assessors. The
y,sr6 hank WIS wholly unnecessary TO
r. safety of the abutment but rather en-
dangered IT.. that half acre was con-
damned for the dbufmsnt-or wholly I'M
necessary ava unless the guard bank be
cop~idered rs constituting a part OF IT,
There is cyi aence that the effect OF the
guard hank was TO divert the water from
the island amt that while II was kept IN
repair no serious damage was done ny
tho floods: that the Canal Company kept
I, I'm repair. and the Railroad Company
having neglected 10 do so. II no longer
serves any useful purpose; and that the
land had been ia maged 70 an amount
equal 10 the verdict
Held. The case is here as upon de-
murrer 10 evidence. ICodc sec. $3.50. and
the evidence is quite sufficient TO sustain
the verdict
SEQUES-RATION.
Frank &c. VS.. Peoples National Bank
&c. Affirmed. Opinion by Keith. +.
BY the ninth clause of his will. l.. d.
reefs the net income from a fund TO be
paid over semi-annualfy TO his children
living at his dea.h-"btn he shall pay 70
my SON James f.. only one half as much
as 10 my other Children.
James L. was largely indebted, and
nh; creditors issued executions on their
md yments against him. In order TO as
CERT ain their several prioritfes and TO sub
iect the fund 10 their liens. the numerous
execn ton creditors filed their bill in the
name Of Frank. on behalf Of himself and
other len creditors. All parties in inter-
est wene made defendants. and decree
entered appointing receiver with direc-
tons TO collect from the trustee under the
wiz the sums accruing TO James +. under
...fn Of cttff ND
distribute an. ong his creditors according
10 the prioritk's ascert aimed by the report
Of commissioner. Appeal by James q,
and certain creditors. on the ground that
the court should have decreed a sale and
not the sequestrs ton OF the interest OF
James u.
Held The object Of the court and its
duty was 10 administer the fund TO the
best advantage OF those entitled TO II. To
eequestrste IL. TO take each year the sum
accruing TO James r.. and apply II 10 the
payment OF his debts is exact justice.
All that Is his enurcs TO the benefit Of hts
creditors. sale might or might not re-
alize a greater sur. IL Introduces an ele'
ment OF chance; II invites buyer and SELL
or to make a contract Of hazard which
court of equity will not do unless it can
be exacted Of il as legal night.
The creditors resorted TO a court o,
equity to enforce thCrr dem ands. They
must do equity and submit themselves to
that measure of relief which that court.
under all circumstances. deems just ana
fair.
There is a judicial discretion IN the
courts as 20 the administration OF fund
like this and when exercised IL cannot be
reviewed or reversed but FOR error APP
pearng on the record. This record shows
nothing beyond the fact that the court
dealing with an interest affected by con-
,neencies likely to influence its market
value has seen NJ 10 sequestrate rather
than sell u.
DATE OF NOTE CHANGED.
Schmelz Brothers vs. Rix and BENTLEY.
Reversed Opinion by Judge Keith pres
idcnt
Rix & Bentley made note for sJp en-
dorsed by Johnson and Boyenton. pay
able TO Schmez Brothers at their benk.
November l. 1899 The note was not
paid and was duly protested. Rix. the
managing partner Of RiX & Bentley, ap-
piled for n renewal OF the note which was
allowed and November 18th. he came 10
the bank with two notes. each dated No
vember 18th one for 500 at three ms nths
one for 500. nj six months. both endorsed
as before. The sole purpose of the new
noticed the date Of the 18th. instead of
the LIST day OF November. when the form
er no;s natured and after some hesita-
tion by G. A. Schmelz. acting for the
bank. the date OF the new notes was
changed To November LIST. which change
az the evidence sufficiently shows. was
made with the knowledge and acquiesence
of Xix. To secure them. deed e trust
was given by Fix & Bentley. describing
the notes as dated November 18th They
were not paid at maturity and the trus-
tee advertised under the deed Sale was
enjoined and injunction perpetuatcd.
Held. The injunction placed IN con-
troyersy the whole sum secured. to-wit.:
$500 so the Jurisdiction OF this court at
tachcs.
? When all The parties 70 a bin or
note agree 10 change Of any OF its
terms they cannot complain Of any such
change as an alter alton.
They have as much right 20 change as
20 make the contract. Daniel Nego
Inst. sec. lsOi.
;. In this case the deed of trust Is not
a mere deed for the indemnity OF the
surety niopewel vs. Cumberland Bank.
10 Leigh. 2lH. II conveys property 10
trustee ard pledges II for the payment of
the debt secured in trust TO secure the
payment OF two promissory negotiable
notes" which il proceeds 10 describe.
SEPARATE ESTATES.
Dezendorf vs.. Humphreys etc, and
Lownsb srry etc. VS.. Humphreys. etc. Re-