Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-03-17

Memphis, ClarI1svilIe and Louis
VILE Railroad.


sci for the Memphis, Olarksyille and Louis
vile Railroad Company, and gave the pro-
ceedings incident thereto.
The argument was continued yesterday
by Col. John F. House, of GAINESVILLE.
He made the following points:
ttWe think that this plea in abatement
| locks the wheels until this matter is di
posed of, and that if this litigation is pro-
ceeded with, as the bill now stands,
| it settles nothing, and the State will
| find herself at the end of this litigation,
precisely where sHe was when it commence
ed. This plea raises the question that
there are certain necessary parties that
thew have not made to this bill. In the
! first instance, we set up in our plea that
there are certain parties who hold the sec
ond mortgage bonds of this company, is
sued By the company under the act of
1860. The Legislature passed a bill au-
| thorizing the Memphis, GAINESVILLE and
Louisville Il. r Co. to give mortgage
upon their road and up IN its income, for
certain bonds which they were by that act
authorized to issue. There is clas3 of
creditors who will insist that their lien is
prior to every other lien, except the origi-
nal lien of the State, and that they are
prior to the lien that the State has for the
aid it has extended to these roads
since the war. We say that the second
mortgage bondholders have right to
have these questions settled, and that your
Honor cannot proceed to do what this pro-
ceeding was instituted to do, to settle all the
conflicting rights and equities ofthe parties;
and will show before have done, that there
were certain difficulties in the way that
prevented q sale before; and I will also
show. as | think, that this bill has not
brought before this court the parties tha'
are necessary TO a settlement of these
questions. We state in reply, furthermore,
that there is another class of creditors
whose very existence is ignored in this
| bill; to-wit, the due-Sill creditors, who
| claim that they hold the due-bills Of the
| States receivers, for cross-ties and wood
and other materials furnished to the re-
ceivers to run the road, and that they
| claim that the State owes them that debt"
Col. House also stated that the names of
| the parties had not been presented, and
| that the Code required that in cases where
the names of the parties could not be as
certained by diligent inquiry, then such
| fact should appear, either by the bill being
| sworn to or by special affidavit. He also
stated that the due-bill creditors had not
been made parties to the suit, the very
class of men referred to in the report of
| the Commissioners on the part of the
State, to carry out the suggestions of
which report the law authorizing the pres
| ent htiga ion was enacted. By proceeding
in this way, If counsel for the State
failed to put in bill as directed by the act
of the Legislature, the State, to use
homely phrase, would be compelled to
| come out at the same hole where she went
in. The very frat difficulty presented in
| the report of the Commissioners was that
| they could not ignore the claims of these
| due-bill men.
The Colonel further stated that the act
directing the fling of the present bill was
the law TO be observed as the guide Of
counsel for the State, and not what Story
sa about who should be made parties.
The act ofthe Legislature was the ''Story"
in this case and also the Equity pleadings.
| 1t was to be settled whether these second
| mortgage bondholders, who had claims Of
the amount of about $3.50, 900. had lien
prior to the State for the aid issued since
the execution of their mortgage. The
counsel for the State had not even made
the trustees to these second mortgage
bonds parties 20 this suit. They knew
that the place of business of the Memphis.
GAINESVILLE and Louisville Railroad Com
paDy was in the town Of Clarksville. What
prevented them from going to the Regis
ter s books in Montgomery county, and at
least getting the names of the trustees?
There is no one here to represent second
mortgage bondholder, or first mortgage
bondholder, or a due bill holder Even
now, if purchaser should buy
the road he would get into a
litigation with these mortgage bondhold-
ers and these due-bill men, and how can
any purchaser purchase the road under
these circumstances? Are you clearing
away these obstacles to the sale of the road
which the act of Legislature contemplates?
Have these gentlemen framed and brought
into court bill under which your Honor
can settle these questions? Ii they have
not, then they have essentially failed to
carry out the object Of the Legislature in
their appointment and in the passage of
this act Then, ingist, if the Honorable
Court please, that this litigation must stop
here If these gentlemen wish leave to
file an amended bill, your Honor would
grant them leave to do so, and to bring
into this court these parties, or at least
representative for each class So far as l
am concerned, 1 feel that if l shall be in
strumental in defeating the sale of these
roads under this bill, that although am
not the counsel for the State, go aaOmine
l shall nevertheless have done the State
some service.
In conclusion, Col. House said: "These
roads are to be rushed through in hot
haste, no delay is to be granted, not an
hour is to be given; they have failed to
pay their interest," sell them out; they are
dead; administer upon their effects; they
have no right here or anywhere else; put
tbsm through. This is the spirit of this
thing. If we are to die, We want to have
as decent q burial as possible, Let all the
creditors be in at the death, and let the
procession be as large as possible. Let
.nem all come in; if we are to die, let US
nave all our old friends at the funeral, and
lie. all these questions be settled"
Mr.. Ewing, of counsel for the State then
s7id That IS the most eloquent speech l
sTer heard on a plea in abatement. 1t
sounded more like funeral itself than any
preaching we can make on our side. We
are not good ct preaching at funeral. 1t
may be that We will come to funeral
after awhile, but if we do, think We will
change sides and get Col. House to preach
the funeral sermon.
The matter now before the court is q
simple naked question of law, which, in
our opinion, does not present any very
great difficulty, but I do not intend to be
carried away into general discussion of |
the object Of the Legislature. They have
filed plea in abatement, alleging want of |
parties, and they ground themselves more |
upon the provisions of the act of Assembly |
of 1870, in regard to the powers and duties |
of counsel in this case, and the nature of |
tie bill, than they do upon the general |
principles upon which bills may be filed in |
courts of equity.
Mr.. Ewing then went on to explain at |
length the circumstances under which the |
State had granted aid to railroads. In the |
course of the argument he commended that |
the whole object of the Legislature should |
not fail, because q failure might be made /
in regard to details. There was no desire |
on the part of the Legislature to sacrifice |
any of the railroads in the s ate; the States |
interest must in some degree be protected. |
He also said that it was not necessary to
state in the bill the names of the parties;
and in regard to the question of affidavit,
that could be made now, if it were found
necessary. The State of Tennessee, by
the fact that she had no personal exist
ence, vas not required to make affidavit:
q nj tho Cfata of Tenpeccaa nv har d;C,;t- |