Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1873-12-26
Chancellor ROyce's Opinion.
VERMONT < CANADA RAILROAD Co.


tral Vermont Railroad Company, heard at
Chambers. at st Alban~. thi- twelfth day
Of December 1913.
The petition allege- that the petitioner j.
nov and for the last five months has been
receiyerand manager OF the Vermont Cen
trail and Vermont and Canada Railroads,
acting as ,uch under the orders OF the court
"a the above entitled cause, and makes all
the proceedings in said cause part OF the pc
tiiiOn. That during SAID time, 1t has been
operating said roads and the Ogdensburg
aud Lake Champlaln Railroad and other
railroads. the Use Of which was acquired
under q contract with the Rutland Railroad
Company sanctioned and approved by tins
court. as such receiver and manager. That
an the usual course of railroad business,
large balances due the petitioner from the
earnings of the roads under its manage
ment, accumulate Ia the hands Olthe Boston
aud Lowell Railroad Company, the Fitch
burg Railroad Company, the Cheshire
Railroad Company, the Boston and Maine
Railroad Company-all corporations exist
Ing under the laws Of Massachusetts, and
having their places Of business in Boston
aud the Northern Railroad Company Of
New Hampshire and George Stark OF Dos
ton. That in the usual course OF business
such balances should be adjusted and paid
irrring of this petition and the service of the
writ hereinafter mentioned, there were large
balances due from the said corpora tons and
the said Stark, To the petitioner, as such re-
ceiyer ana manager, arising from the earn
ings Of the roads and property under ITS
management.
1haton the 25th day Of November, 1913,
the Vermont and Canada Railroad Company
sued out it. writ of summons and attach
ment against John Gregory Smith, Worth
ingtOn c. Smi'h, both of ST. Adams. Yer
mont, and Joseph Clark of Milton, Yer
mont, as they are jointly the trustees under
certain indenture of mortgage made by
the Vermont Central Railroad Company,
dated October Goth, 1851 and assignecs from
said company Of its lease Of the railroad Of
the Vermont and Canada Railroad Com
pany, made returnable before the Superior
Court, to be holden at Boston. Mass, on the
first Tuesday Of January, 1871, demanding
IN damages $50, 200, and by said writ sum
lnoned as trustees of the defendants therein.
the above named corporations and the said
tieOrge Stark. And in said petition charg-
ing that said suit was instituted for the pur-
pose of locking up said funds in the hands
of the trustees, who are in doubt whether
they can safely pay said balances to the pc
titioner. And that the action of the Yer
mont and Canada Railroad Company in
Summoning said corporations and said Stark
as trustees, causes the petitioner great en-
harrassment in the execution of its duties as
such receiver and manager. And praying
that the Vermont and Canada Railroad
Company might be enjOined from further
prosecution of said suit as against the cor
poratiOns and individuals summoned as trus-
tees land that it might be ordered and d.
rected TO discharge said trustees. and re-
lease its attachment of all funds in the hands
of said trustees, which accrued from the
earnings and income of the roads and PRO-
perty under the management of the petit
TONER, and for such other relief as to equity
might appertam.
Ii appeared upon the hearing that the pc
titioner was appointed receiver and mana
ger of the roads described in the petition on
the 9lst day of June. 1873 that on the lSt
day of July, 1873, 1t took possession Of said
roads and had been running and operating
the same under said appointment, a. re
ceiyer and manager, ever since that the
petitioner notified the SAID corporations and
the said Stark, summoned as trustees in the
aforesaid suit, Of its appointment and that
all the funds in the hands of the supposed
trustees had accumulated since the receipt
by them Of said notice. and were due and
payable 10 the petitioner As such receiver
and manager.
1t further appeared that the Vermont and
Canada Railroad Company was chartered
by the Legislature of this State that its
railroad is within the State; that three of
the seven directors of said company and its
clerk were residents of this State, and that
the charter of said company requires that
the Office OF clerk Of the corporation shall
te.kept in this State And it appeared that
there was due to the petitioner from the sup
posed trustees, at the time they were sum |
inOned as such trustees the sum of SIS. 2S5, |
all of which sum, except about 800, 900, |
was due from the petitioner to connecting |
roads. That in consequence of being sum |
moned As aforesaid, said trustees refused to |
pay over the balances due to the petitioner, |
and hence the petitioner was unable to meet |
its obligations to connecting roads and |
other obligations which it was under as |
such receiver and manager. and had been |
put to great trouble and expense in pro-
curing means with which to meet the neces
sary expenses of operating said roads; and |
that the only means it had for paying said |
operating expenses were from the income Of |
said roads, a large portion OF which income |
was collected from said corporations and |
said Stark, summoned as trustees That |
under the system of doing business upon the |
roads under the management of the petI- |
toner, and other roads with whom the Pc
tltioner has business connections the cOrpO-
ration delivering the freight collects the
entire charges for its transportation and |
divides the same between the roads over
which it has been transported and that it
Is necessary 10 profitable use of the roads
under the management Of the petitioner
that this system should be continued.
These were the material facts upon which
the DatIflnupr pre1ira rod IT. ri.rbt ., 81,
relief prayed for. The pettionee claimed
that the petitioner was not entitled to relief.
for the following reasons -
First The petitionee denies that the De-
titioner is duly organized corporation pur-
suant to its charter, or that, if duly organ
lied, 1t Is competent TO be receiver in said
cause
There was no evidence offered hearing
upon the subject matter of this objection.
except the record above referred to, and
when party produces the proper record
evidence of his appointment, that evidence
is conclusive of his right until it is i'm
peached. And it has been held that il was
mmaterial that the order appointing re-
eeiver n erroneous or improper, or ought
not to have been Vaudeville it isa sub
sisting order it is not competent for any one
To interfere with the possession of the re- ]
ceiyer, and if a party feels aggrieyed by the
order of court making the appointment, he
must institute proper proceedings to test its
validity. :
Russell vs. East Anglican Railway Company. "a
Mac. and q. III Ames We. Birkenhead Docks sth ,
Besv. 3l3. .
econd-That the petitioner had no legal
right under its appointment to take posses a
sion Of the petitioners property.
This objection involves a mixed question /
of law and fact, and upon the question of {
Tact 1t rs enough 10 say that it appeared by I
the order appointing the petitioner receiver !
and manager, that II was directed to take /
possession OF this property. The question /
oil law involved has already been sufficiently {
answered !
Third-That these proceedings are in !
formal and invalid d
The scope and object Of this petition is to d
invoke the aid of the court to protect its |
own ofncer IN the possession Of property !
winch 1t has been ordered TO take, in n I
pending cause, and it is competent to grant I
sucn AID upon motion or petition. The pro-
ceedings ordinarily must be sneedv and
summary to be beneficial, and if the partv
was required to file an original Bill and
await the termination of a suit sneb delav
.o.i9 ueieat The very purpose in view. /.
anu mignt ADD that since the decree IF !
1868 wherein 1T was ordered that this cans
should he continued on the docket WITH E
leave to all the parties to the cause Ia annIy ,
to the court for further orders in the ne. q
mises, i has been the uniform practice ior a
all having any legal relation to or ;ntereS, {
IN the subject matter Of the cause. 10 annly 9
to the court in the same manner Thar ~ q
petitioner has now applied I
fourth-That if the iunos in the handsor =
the parties summoned as trustees belong 10 q
the petitioner, it has the right, under the 6
laws OF Massachusetts, to enter and claim .
she same, or to institute other proceedings D