Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1876-01-07

port Of sns railroad hssiag ss = Adams
- .Anssxs1S OF Jubn rsesf-
Judrs fuout 4 opsni6g his eyEunent ON
bSSsi3 Of ~ feelsnd nsilfoe1 Co1psny.
siluded = ths psnbsr q inpessare ones
49, 70 Il pr1sonted. and uesssced the
~ thsS thsv would BE- lgDosidseso with
~ and With . full examination OF legal
principles. lie then enumerated the iscts
in the case that were conceded upon tne pa
psrs. insisting that upon those facts Alone
thew were entitled to protection aud imme-
date rsliei. He referred to the PROVISIONS
of The contract emitting the Rutland to re-
ON ma pos,essiou of its road il the provisions
of the lease were not strictly fulfilled; TO
the ordsrs that had bean drawn upon the
Cheshire and Connecticut River roads as Sc
curity for the payment for rent to the re-
vocation Of those orders BY the Central IN
June last, and the consequent dessfuctlon
of ali security and the noppeynent OF rent
until over $500 900 is now due TO sne no
tees Of revocation and the demands Tor pos
session which have been given and made 3Y
the Rutland, and to the utter refusal oil tue
Central TO surrender the road or make 'ut-
ther payment
sented by the answer in regard to alleged
fraud IN making the lease should not be al
lowed TO enter into the decision OF the pres
emit case. a. the rules of law DO not allow IL
when the q question Is one simply OF security
pending the litigation. lie cited numerous
authorities upon the right to an immediate
remedy in Q petition in Q receivership cause,
and asserted that upon the cases the proof
of legal title required the action requested
of the court. That injunctions were often
employed in order to put the party holaihg
the loeal right into immediate POSSESSION.
was shown by reference to authorities. lie
produced and read decision OF chancellor
Poland. in 1855, made IN the old Vermont
and Canada case. upon motion ior pos
session of the Vermont and CANADA ana
Vermont Central roads, when he decided
that the Vermont and Canada had tho right
to the roads under the contracts. and that
the parties then in possession should DC en-
Joined from preventing 1t from taxing su'n
possession.
The right Of the Rutland to continuance
of its security upon the orders drawn upon
the lower roads was next considered and
urged in view Of the necessity OF preserving
the property 80 that the final relief will be
worth something to the party II successful
in the cause. Ii the loss to the trust Is the
sum stated in the answers. then the interest
of the trust requires that the properly De
returned and the loss stopped There Is an
express co uitsble lien established upon the
fund in the hands OF the lower roads, anu
| which the Rutland is entitled to have pre-.
served, even though it may ultimately tai
in the litigation. The orders have the ell
feet of raising q trust upon the moneys men
toned therein. Therefore the title oil the
| Rutland is perfect and complete and the
| Central had no more right to take the
moneys from the lower roads than to take II
out Of the treasury Of the Rutland But
they say they have been deirauded. Ihat
gives them no right to take the fund Inese
averments do not contradict the material
allegations Of the bill. or reach them IN any
way. Ii the statements OF defendants are
true. the defendants should have acted
promptly in resembling the contract au'
| thorires are full that the defendants are la
bic for the rent so long as they retain pos
| session Of the property. Misrepresentation
| or fraud is no foundation for tile. IL
| gives them no right To say that they WIN
not hold the road a. tenants. Title origin,
ates 10 contract Fraud may be the ground
of a set-off or for the recovery Of damages
| il cannot operate to establish a title, but the
party claiming it must first rescind. or offer
10 do 50 Gov. Smith says that be discover
ed the alleged fraud in 1871 or 1872, and be
has retained possession OF the property ever
since, taking no measures for redress and
paving the rent He cannot now repudlate
the contract upon suck ground. uoy.
| Smith never brought the discovery oil fraud
to the attention ot the court. although he Is
an officer of the court but always acquiesced
| in it until he filed his answer to the Rutland
/ bill. When he stopped the payments oil the
orders he did not give that reason. When
be surrendered the New York roads he gave
no such reason His real reason for giving
them up WAS the project to build the new
road west of the Lake. And he got up an
arrangement for consolidation with the
Rutland. which recognized the validity OF
the lease. If the party negotiates alter DIS
c0yery Of fraud il is q waiver. Delay or
silence is counter fraud.
That the contract is onerous i not to the
point The owners Of the property have a
right to it.
The Rutland stockholders by their vote
authorized the lease upon the terms set
forth in the contract submitted to them
They are not bound by the fraud of dir
ector or an officer. They authorized only
what is shown by their vote. The cases
say the corporation is not affected by the
fraud Of its agent An action for deceit
may be maintained against the directors
personally, but not against the company
| And the Rutland railroad company have Of
fered to receive back the property, and do
not claim the benefit Of the trade. How
can they be bound by the fraud Of their
agents?
The agreement to consolidate does not
help the defendants IL was merely pre-
| liminary agreement. and expressly subject
ell to the Rutland ookholders' vote They
have expressly disapproyed Of 1t. and seek
to recover their property.
| They say the Rutland Is bound to pay Il
large sun on account OF completing the Ad-
olson Ii is not true. The contract was
with the Addison and not with the Rutland.
Gov Smith undertook to complete il by u
certain time. and if it was not Gone it was
his FAULT
The Central did not come in merely a.
SUCCESSORS in the trust, but also under q
contract with the outgoing revenues to pay
their debts and assume their contracts.
The Rutland lease was then resthrmed- No
representation was made to the Central
Vermont that the trust had been cheated by
the Rutland. Tho receivers disposed of the
property upon the same terms upon which
they took it. They have not suffered. Let
them enforce their contract with the Cen
trial
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