The Cadiz Democratic sentinel. [volume] (Cadiz, Ohio) 1854-1864, 1860-04-11
supreme Court of Ohio.

>, Supreme Court of Ohio.
Presentation. JACOB BRINKERHoFF, Chief JUS
tice and Hon. JOSIAH SCOTT, Hon. Milton
SuTI1Fr. Hon. WILLIAM V. PECK, and Hon
WM.Y. GHoLsoN, Judges. L. j. CRlTcH
FIELD, Reporter.
GENERAL DOCKET.
2e2 Geo. s. Coe u. The Columbus, Piqua
and Indiana Railroad Company ct. al.
2o3. The Columbus, Piqua and Indiana Rail
road Company y. George s. Coe.
Error to Court Of Common Pleas of Franklin
county.
Gholson, j.
l. Certain persons, their associates, success
sors and assigns, were created body corporate
with succession, with power to sue and be sued'
plead and be mplended. defend and be defend
ed, contract and be contracted with, acquire
and convey, at pleasure, all such real and per
sonal estate as may be necessary and convenient
to carry into effect the objects of the incorpor-
alton. The corporation was authorized to con-
struct and maintain railroad between certain
termini and to demand and receive for the
transportation Of persons and property, a COM
pensation not exceeding certain specified rates.
1t was also authorized to appropriate, by pro-
. ceedngs under general law regulating such
proceedings, land necessary for its railroad track
the property Of individuals. Held-lSt, That
under these general powers the corporation had
no power to ALLEVIATE the franchise to be cor
poration, or the franchise 10 construct and
maintain railroad, and receive compensation
for the transportation Of persons and property
nor any interest in real estate acquired and held
solely and exclusively for the purpose Of the
exercise Of such franchise. I'd. That after
the railroad had been constructed and prepared
for use, things requisite for that use, such as
locomotives, cars and the like, not affixed TO the
land being acquired by the corporation, are to
be regarded as personal property, subject to
alienation and liable for debts. 3D.. That the
corporation could not make mortgage OF any
property such as the above described, to be sub
sequentiy acquired, SO as to give it validity, in
other manner, or to a greater extent than an
individual owner ofperSonal properly.
ri. The corporation held grant of power to
borrow money not exceeding its capital stock,
at rate of interest not exceeding seven per
cent, and to execute bonds therefor and to Sc
cure the payment thereof by pledge Of the
property and income of the company.-And
subsequent grant OF a like POWER, and the auth
ority to pledge was expressed to be "by mort
gage or otherwise, the entire road fixtures and
equipments, with all thr appurtenances, income
and resources ,hereot"--lleld--1 That under
the power thus granted for the special purpose
Of borrowing money, the company could not
mortage the franchise to be COOPERATION ap
pertaining to the individual members OF the
corporation, but could mortgage the franchise
of the corporation to ma ntain the railroad and
receive compensation for the transportation of
persons and property and could mortgage prop
erty connected with the railroad and the use OF
its franchise, whether real or personal,to he sub
sequently acquired. 2. That the power which
the company had, to institute judicial proceed
ing to appropriate private property, was not
transi ierable. and That the mortgage ofthe com
pany could give no right to the exercise OF such
a power which the provisions OF the general
law on the subject did not authorize.
8. That the execution ofa mortgage by the
company, under such specid power, could give
no exemption OF its personal property from
liability which might be otherwise created by
its own act or judicial proceeding that the
execution of a like mortgage upon personal pro-
perty by an individual, would not create.
ILL., The company issued bonds, and execu.
ted mortgages to secure their payment, under
its special power-1he bonds were made pay
able ten years after their date, with interest at
the rate ofseven per cent, payable semi-annual-
ly. They were negotiated by the company at
discount, and part Of them were exchanged
for iron rails. Heidi. That it was proper
exercise Of the power, to make the interest on
the bonds payable sem-annualy 2. That the
act of March 81 1851, which authorized the
directors Of the company to sell or negotiate
the bonds issued by said company at such rates
as they might think proper, and which provid-
ed that the bonds so sold should be as valid in
every respect as if sold at their par value, ap.
piled both to bonds and the security given for
their payment; and, therefore, the sale of the
bonds at discount did not render invalid the
mortgages. 8. hat the company, having re-
ceived authority to sell the bonds at less than
their par value, there could be no ground for
prohibiting an exchange of the bonds for iron
rails, and the fact Of such exchange. or the in
tention to make it, did not invalidate the bonds
or the mortgages.
w. The company executed three mortgages
upon its property and income, the property in
possession and to be acquired. Two of these
mortgages were properly executed and record
ed, but the second in order OF time, executed in
New York and acknowledged before an Ohio
Commissioner in that State, had but one wit
ness The third or subsequent mortgage was
expressly made subject to the first and second
Held, that whether the second mortgage be re-
garded as creating legal or equitable claim
It was entitled to priority over the third.
v. A creditor having been permitted to levy
an execution upon part of the personal prop
srty, including portion acquired subsequently
to the date of both the second and third mort
cages but this levy having been made after the
sc,ion was brought and while the property was
IN the hands OF receiver appointed in the case
Held, that as against even the equitable claim
Of the second mortgage the creditor was not
entitled to a preference.
r