, 1861-10-23

Ufxeuxf Gourt or the United 8tateass-
= \ Old 0eeaukaN8 A4veESe4-

a question Of great importance In the. law
relative 10 Railroads, was: decided By Judge |
Drummond On the morning Of October s1st,
In suit upon mortgage on the Peoria q
OQuawkA Ral1road. -
= A bill having been fled to foreclose the
SECOND moltgage npon ~ ns past pazte oF e psa tae
ia, md its spurteuances, revenues and in,
come. after 7lfnu a cross bill and several
amendments thefeto, I petition Wa2 again
f1td for leave to -dle t9rtaer anaenaeo Dill
{c1oes and supple1nent) p NE q COMPANY coz
setting forth teet the tha sats "a n to e.
east line, md vas completed through
and extending by it's eastern connections
to the Atlantic cities; and that upon the
eastern portion OF the road Were otnef mort.
gageB amounting to tWo manion ave hu1ofea
rendered Torthlses Il the road west Of Peoria
could be sold separately, under the mortgage
upon It; while If 1t could be kept together Is
one road, Il would. as WIS alleged, earn
money enough to pay the interest," On az rs
mortgages and ullimately me p'1helpal a aeet,
and aye M ths hsetg ass n IT, "a Maripg e. W
obligated as lessees to pay the interest upon
fhe mortgage bonds By the terms OF the ag1ee.
ment, and that interest had been PAID, and
that there we're fraudulent and colluslVe ar,
rapgements between Hess, AaIding q Co: and
the Chicago, Burlington and Quincy Railroad
Company 10 procure the sale and separation
Of the road west of Peoria from that cast Of
that point. DC, &C.. and praying decree 80
shaped that the road mortgaged should not
be sold sepsrately except upon condlllon TO
protect the interests Of the ooroholder8 on
lines east Of Peoria in the preservation OF the
road as an uninterrupted and single line, and
Mess q Co.'S interest should be first sold aud
the proceeds applied to pay the interest.
His Homer Judge Dtummond, alter very full
discussion by the respective counsel, decided
that for the purpose Of enabling counsel
fairly to raise the question in the Supreme
Court, if they desired the allegations that the
road was built to the east line Of the State
and thst It was mortgaged, as alleged, might
be incorporated in the plead1ngs, but stating
that the road when sold must be sold IS mort
| gsgeG, Iaud thkt no condition eouid, N MS
Judgment be inherited In the decree Tor TIE
gageeB thereof.
Tint the mo1tgagees took mortgage OF thu
| road and Of the franchises, at least to some
extent, and took it, therefore. subject to suct
| rights as the public might have In the opera
ton and management Of the road-that Wher
It Ehonld be sold It would be sold charged
| with the same rights, Of course-bnt tina
| these rights could not be defined by the cou1
| nov, nor settled by a dec1ee-that # the pur
chaEets at the mortgage sale did not liEe up t.
! anu discharge those dut1ea. Wlether ID tn
public directly or the rest Of the line, the mat
Ter would become subject for the interpos1
tion Of the proper courts Of equity or law, q
the case mig ht be at the time when any 4ues
tion of that nature might arise On tnes
points be stated his Judgment to be very firm
Ht held also that no proof was adInlssabi
to show that the road, if well managed au
under one management, would earn none
enough TO pay the interest or principal Of il
debts. That Was matter susceptible of n
satisfactory proof, and WAS not pertinent t
the mtrits Of the case, and that if in future
could possibly be the case that the road woul
turn out to be prosperous, it could be no 81
sWer to the claim Of its creditors nos.
He therefore ordered that only SO much {
the allegations as related to the constructio
| Of the road to the east line Of the State an
the mortgages thereon. and as related to t
rayment OF the interest since the fling Of tt
original cross-blll, and as related to the earl
fling ar asking to file the amendment, only
allowed to go on file, and that all the ether +
legations be struck out ofthe proposed amen
! ed bill.
This is the first case OF the mortgage Of
. rart Of railroad, that has eveT come befo
the courts, though it is understood that the
} may be many such IN this State.
The case was argued By J. L. Jernigan
New York, for the Peoria d OqnaWka Col
pary, and by j. H. Walker, Of Walker, V
Arman & Dexter, Of this city, and James
joy, Of Detroit, for the mortgages.