The Rutland daily globe. [volume] (Rutland, Vt.) 1873-1877, 1875-11-18
The Rutland Railroad Hearing.

road, commenced at the Weldon house, st.
Adams, Tuesday morning. BY invitation
of Judge Royce, Judge Barrett sits with
him. There was strong array of counsel
on both sides, and many able lawyers were
also present as spectators.
Tha counsel for the Rutland road were
Hon. b. F. Thomas of Boston, Hon. John
Prout of Rutland and Hon. Daniel Roberts
of Burlington for the Central, Hon. Luke
P. Poland Of st. Johnsbury, Hon. B. F.
Fifeld of Montpelier and Hon. Levi I'm
| derwood of Burlington for the Vermont
and Canada, Hon. G. w. Willard of Mont
peller.
The case was opened by Mr.. Roberts,
who read petition on behalf of the Rut-
land, filed in the original suit under which
the receivership exists Oct. 21st, last (and
not previously brought up) in which the
facts were rected, and which prayed not
only for an order of court requiring the
Central to cease their daily collections at
Bellows Falls from the lower roads and
allow the Rutland road TO collect monthly
as heretofore, but to pay over the arrears
that have accumulated since they broke the
contract, and also to let the Rutland re-
enter and possess it's road.
Judge Poland objected to the multiple
city OF the proceedings. So long as the
bill in chancery is pending, they have no
right to come here with petition asking
for the same relief. He thereupon read a
motion to dismiss the petition, and to order
the Rutland to choose which they will pro.
coed under.
Mr.. Underwood said the Vermont Cen.
| pa haI ulp IN Iaxr tal
rer, on the same ground.
Judge Poland spoke IN support of his
motion, saying that it is a general rule of
law that there shall not be vexatious pro-
ceed!ngS
Mr.. Roberts in reply said that where the
reason does not apply the rule does not.
The bill goes for much broader and more
general relief than the petition, which lat
ter asks for only two specific things. The
violation of the order on the lower roads
for the payment of rent was not done with
the sanction of the court, therefore it was
against the previous order of the court.
The petition does not ask for a RECESSION of
the lease, as the bill does, but merely to be
let into possession unless they shall pay
the rent. The petition was filed under or
der of court and with due notice to the
other party. All these cases were post
|
that they were to be heard to-day.
Mr. Fifield said that on the 22d day of
July, Mr.. Edmunds moved for leave to file
a bill or petition, and the court granted
leave to "bring bill or petition" On
the 3lst of July, they filed an original bill,
ia pursuance of the order. The answers
were filed soon after, and then the Rutland,
seeing that they were lame, filed their peti.
ton, but did not withdraw their bill. Both
are substantially for the same thing, and
are in the same cause of action. They are
parallel and cumulative. He went on to
discuss the provisions of each, endeavorIng
to show their similarity The question is,
can there be two proceedings for the same
cause of action at the same time.
Judge Thomas said that the idea that
bill in equity can be dismissed is without
foundation. 1t is too late to move to dis.
miss after the demurrer has been filed.
Mr.. Underwood said the two proceed
ings are not in the same cause; he didn't
agree with Judge Thomas that party can
bring more than one bill or petition asking
for alternative relief, but can ask it in the
same bill. The court of chancery can't
drag in all creation. Now each party de-
PENDANT in this case can come here and ap-
pear for itself one can demur and another
move to dismiss.
He and Mr.. Fifeld both denied that the
last petition was filed by their consent.
The court said they had right to file it.
MIR. Roberts said he gave notice to Mr..
Fifeld.
Mr.. Fifeld said it was true he had such
notice, but refused to do anything about it.
The court said he should stand BY the
order made at the time.
A recess was then taken until Q D. m.
In the afternoon Judge Barrett stated
that he was here at the request OF Judge
Royce, and by his request he would give
utterance to the decision of the court on
the question pending before the noon re-
cess. He considered the objects aimed at
by the bill and the petition TO be precisely
the same. They regarded the question
now within the judicial discretion of the
court. They had known of no instance of
such a two-fold procedure. The rule al
lowing party to proceed in equity for al.
tentative relief confines him to q single
proceeding and does not permit of parallel
suits. They would not undertake to de-
termine which proceeding is best for the
party, but would decide that he should
elect which he will proceed under for the
present, and whichever he chooses will
have the effect to set aside the other.
Mr.. Roberts thought that the other side
should inform them if they are ready to
proceed under either, as it might affect
their choice.
Mr.. Underwood said he for one was not
prepared to advise them what they ought
to do.
The counsel for the Rutland then retired
to consult, and after some time came in
and Mr.. Roberts announced that they had
decided to proceed upon the petition.
Mr.. Fifield raised the question If this did
not have the effect to dismiss the bill.
Judge Thomas said he did not 80 under
stand ii.
The court said such had been their init
nation, and they would dismiss the bill
without prejudice, the question of costs be-
ing reserved for future consideration
Mr.. Roberts then offered the affidavit of
John b. Page.
Judge Poland asked when it was filed,
to which Mr.. Roberts replied that it was
filed under the original bill
Judge Poland then objected to 1t on two
grounds, first that 1t was filed before the
petition was brought, and second because
1t was ca parte, and no such testimony can
be received, either by law, practice or pre-
cedent. This latter point he most insisted
upon.
Judges Prout and Thomas and Mr.. Rob
erts replied, claiming the petition to be
only for temporary relief, and also that the
Central Vermont had violated the order of
court confirming the Rutland lease, and
should be enjpined from so doing.
Judge Poland said that the order only
showed the consent of the parties, and
when the dispute arose they stood upon the
same ground as other parties.
Mr.. Fifeld rose to sustain the answer,
claiming that the Rutland road owes the
trust 81 100000 on account of frauds and
misrepresentation attending the lease, and
that the parties demanding equity must
first do equity, and that the testimony upon
this important issue must he taken before