Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-08-15

!, tilted of the facts, and the WHOLE matter
having been left with him, he conferred
with MIR. Egg, and said that
the thing was entirely satisfactory;
ayers THAI the check was good. and sub
stantisl compliance with its decree; ad-
mits that he made an arrangement with
Cole and G!eayes TO furnish the bonds.
and AYERS that he understood the ar
rangement had been made, and says that
he contemplated turning the road over to
the stockholde 8 of the Nashville and
Chattanooga Railroad Company, as soon
as his rights to the Rad should be estab-
lished, and that he intended to offer It to
them at $500, 000-what the State pro-
posed to take. The answer, as under
stand it, fails to admit or deny that
wright d 20. are stockholders in the
winchester and Alabama Railroad Com
paLy, but denies that Wright g. Co. &C.
quired any rights under the assignment;
AYERS and shows that Frizzell is q stock-
holder in the Winchester and Alabama
Railroad Company; admits the fOrma-
ton OF the company of w. N. Wright &
Co., but AYERS that the objects of the
company is not fully set out, but evaded,
and defendant is informed that Wright
has publicly announced that the purpose
of the Association was to make money,
and charges that Wright s. Co., or some
of them, made an effort to sell the road
10 the Nashville aud Chattanooga Rail-
road Company at profit of 5000, 900,
after the assignment and that defendant
had heard that Wright s. Co. had Of
fered it TO the Memphis and Charleston
road at $500, 900, but whether or not the
offer was accepted, he had no means of
knowing, but has constantly understood
and believed that if petitioners can get
the property they are to have bonus of
$500, 600 for being the medium of con-
veyance. And the answer AYERS, from
information and belief, that James G.
Woods, Thomas Sharp, Thomas F. Nor
ley, II. e. Moore, w. II. Moores, and
others, of the company of w. N
Wright 81 Co., are Directors, and were at
the time hereinafter referred to, of the
Winchester and Alabama Railroad Com
pany; that as such Directors, and while
| IN she discharge of their duties as such,
as trustees under deeres of this court
assigned the right of the President and
Directors to purchase for the company,
up IN the ground that sale could not be
made for $500, 900, the minimum fixed
by the decree, and then, themselves be-
come members of the company of w.
N. Wright & Co; and states that defend
ant believes that Wright & Co.
have negotiated a sale for $500, 900
upon condition they win this law suit,
and that the conduct of w. N. Wright &
Go. Is fraudulent, and that the resolution
making the assignment was intended to
deceive and is fraudulent. That many of
the stockholders who voted for the reso-
luton assigning the right to purchase, did
so under the b.lief that the assignment
and new organization were essential to a
sale, when he has no doubt sale could
have been made at any time satisfactory
to the State, and a majority of stock
holders, if the effort had been made.
There are other averments in the answer
which sre not material and need not be
here noticed.
On the 26th of July, 1871, and pend.
ing the argument, Frizzell, through his
counsel, produced a lot of bonds in
court aud offered to tender them in the
cause, and the court ordered the Master
to count them and make report, and on
the coming in of the report, which |
showed that the Master had received of |
Frizzen seventy-fiVe thousand dollars in
State bonds, that forty-eight of them had
coupons attached of and after July l,
1870, and twenty-seven had coupons at
tached of and after July l, 1869, and that |
the Master considered the bonds legally |
issued, the report was ordered to be flied,
reserving the determination of the legal |
effect for future consideration.
On the 26lh of July, 1871, w. N.
Wright and others made written propo-
sition to purchase the Winchester and |
Alabama Railroad to the Railroad Com
missioners, the proposition stating that |
they were stockholders in the road, and |
had complied with the terms of the de- |
cree of sale. The Secretary of the |
Board of Commissioners replied that he |
was instructed by the board, then in ses-
sion, to say in ans yer to the cJmmunica- |
ton that it contained matters then before |
the court, and that they declined to take /
action thereon, but acknowledged that the |
same had been made to the board, and a |
tender of the bonds referred to to them.
Under the decree of April 6, the Com
missioners are required to report their |
action under it to future term of the |
court.
There is a provision in the decree of |
April 4, that nothing therein shall affect |
the claim of the State against
the United States, for iron and
other property of the road taken and |
appropriated by the United States to its
use and upon which the State had a lien
for its debt at the time of its conversion,
and which debt had been assigned by the |
company to the State. And that nothing
in the decree is intended to interfere with |
any right of action which the company or
State may have against any receiver or
other officer of the company.
1t is further provided by the decree of
April 4, that the cost incident to making
the Winchester and Alabama Railroad |
Company party to the bill, shall be paid
out Of the fund arising from the sale of
the road.
The decree of April 6, provides that
the commits ;ioners in any sale of the road
shall receive in payment for the same any
of the coupons bonds of the State of Ten
nessee, which may have coupons of Janu-
airy, 1871, and other coupons unmatured
attached to the same. And that the Ar
kansas land be left to the Railroad Com,
pany for the purpose of paying the cost,
Attornies fees, and other debts of the
mentioned in defendants an
sWer
The questions at issue, involve large
amounts AID have been argued with fine
ability on both sides, and feel much in
debted to the counsel for the aid that the
arguments have furnished in coming to
the conclusion that have arrived at.
l. Was all The evidence offered as testi-
mony compe:eCt2 ] am of opinion that
it was, except the affidavit of Sharpe and
it can be looked to for no purpose in this
cause. And except the proposition of
Wright s. Co., made on the Goth of July,
1871. 1t comes too late to be used as
evidence. See Rule Is of Chancery
Practice.
And such of the averments ia the
answer as are not responsive to the bill
are not competent evidence, except in bar,
as they may be used as admissions.
The commissioners were acting under Il
the orders of the court, and are required