Alexandria gazette. [volume] (Alexandria, D.C.) 1834-1974, 1869-02-10
washington and Alexandria II. IL.


The following is Judge Thomass opinion IN
the case of the Alexandria and Washington
Railroad Company, vs. Alexandria and George
town Railroad Company, referred to in yester
days Gazette:
Davidson and others, stockholders in what Is
claimed to be the Washington, Alexandra
and Georgetown Railroad Company, brought
suit in this Court to annul lease made by the
| Directors of that company 10 certain stevens
and Phelps. This Court pronounced the
lease invalid, and that the said lessees were not
entitled to mold possession OF the road, anu
| the Court further ordered that the SAID lessees
should surrender the road to VIM H. Mar
| bury, whom the Court appointed Its Receiver,
with full authority and power to operate the
road and requiring him to return the proceeds
| to the Court subject to its future order. This
decree has never been carried into effect. The
| Receiver never has had actual possession OF
| the road, for although be made an attempt to
obtain it under the authority OF this Court, he
was arrested by an injunction from the District
Court of the u. S. for Virginia, in suit
brought in that Court against the plaintiffs,
| and the Receiver in this case, and the road
| continued in the possession of Messrs Stevens
| and Phelps. as the Receivers OF the u. ).
Court. CA s.. ID.
Whilst the road was thus in the possession
of the u. S. Court, through the agency OF It's
receivers, the Washington and Alexandria
Railroad Company obtained decree against
the Washington. Alexandria and Georgetown
Railroad Company, affirming that it held the
paramount title to the said property, and re-
curing the Washington, Alexandria and
Georgetown Railroad Company, to surrender
the possession thereof TO the said company
| In this decree it was required that before the
Alexandria, Washington and Georgetown Rail
road Company should restore the road, bond
should be given at the instance OF the plain
| tiffs, who desired to appeal from this decision.
| The execution Of this order was suspended
until 18th of November. On the Both OF Sep
TENDER, lust thirty days after the adjournment
of the August term, 1868, the plaintiffs IN the
| latter suit, Notwithstanding the order was Eus
pended until the 18th of November 1868, tor
the purposes of an appeal, caused an execution
hab. Eas. DOS. to issue, because it was required
that before so much of this order as required
q restoration of the road should take effect,
the said Washington and Alexandria Railroad
Company should give bond, Nc, concluding
that upon the execution CT that bond, the
right to the restoration was complete, because
the suspending bond required OF the deten-
dants was not given up 10 the period OF the
| w
its execution, and this, notwithstanding the
effect Of the whole decree, was suspended until
the 18th of November. The statute does not
prescribe the period in which these suspendlng
bonds are to be given; When the Court appre-
hends that delay Is alone desired, and that an
appeal is not seriously contemplated, and that
parties desire a proOngatOn OF the interests
which they may have in their possession, 1t Is
the duty Of the Court 10 prescribe short
period but where the case presents grave ques-
/ tons, the Court in It's discretion, with view
of all the circumstances, such as the character
of the suit the length OF the record, the resi-
dence of the parties, e., &c, should enlarge
the period. This Court has rule OF practice
merely prescribing that the bond must be given
within thirty days, yet this lule was not known
to the parties, they were not IN possession OF
the road, and they naturally supposed that they
| had the full period of the time prescribed by
the Court 10 which to give the bond, and fail
| ing to give the bond within thirty days the
Court would have upon application, know
| Ing as it does all the circumstances enlarged
the period.
By reference to the decree Of August %,
| 1868, it will be seen that it is carefully guard
| ed, and the writ Of execution following 1t re-
qures OF The officer that he cause the plaintiffs to
have the possession OF 4 certain railroad IN the
county Of Alexandria, n0,O and heretofore oc-
cupied by the Washington, Alexandra and
| Georgetown Railroad Company, ITS offceyS
| agents. lessees, &C., which the plaintiff recov-
| cred of them. At the date OF this execution
the road was not in their possession, either
actually or constructively; it was not in the
possession of the Court, for its receiver mad
been arrested and it was at that time IN the
possession of the receivers of the L. SCOUT
whether rightfuiy or not it IS frultless to IN
quire; but being in their possession, that Court
should have been applied to by the Washing
| ton and Alexandra Railroad in view OF their
paramount title; and whilst this Court is of
| the opinion that it having concurrent jurisd;c
ton with the y. S. Court, and proceedings
| being first had before it, and It's jurisdiction
having first attached, it could not be legally
arrested by subsequent proceedings in another
Court, yet the o. S. Court being of differ
| ent opinion, and having taken jurisdiction OF
| the case, and having complete and undisturbed
possession of the property, this Court cannot,
under the circumstances disturb that posses
! sion by it's process.
| The execution issued by the Washington
and Alexandria Company was therefore pow
erless for the purpose for which it issued. The
Alexandra, Washington and Georgetown Rail
road Company were not in the possession of
lLC IOdus dlIu luC OCClCC do we'll do IiC VIII
itself was only designed by its very terms to
affect them. In this view Of the case it is I'm
necessary for the Court to express any opinion
as to the effect of the execution, or whether
it properly issued, as against the possession
of the Receiver of this Court.
This execution is now fuactus oGicu. Its is
sue and its service as returned by the sheriff, |
vested no right in the plaintiff as against the
q. s. Receivers, who, at the time, and ever
since, have been 10 possession; none as against
w. H. Marbury, the Receiver Of the Court,
as he was not in possession. The Court is Of
the opinion that no further order is necessary
the execution being dead, and Of no force, and
is and was. SO far as it purports to have vested
the Washington and Alexandria Railroad
Company with the possession Of the road, a
mere nullity.
Congress.