The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1876-06-03


OF THE STATE IN THE sUIT-RULING OF
THE COURT. COMPELs THE WITHDRAWAL
OF THE DEaIURRER-FILING OF THE AN
swER AND ADJoURNAIENT-TH GREAT
FIGHT TO BE MADE TO-DAY.
Promptly at 10 O'Clock yesterday morning
Judges Bond and Hughes occupied the
bench OF the United States Circuit Court.
The courtroom was crowded with lawyers
representing the bars of Richmond, Peters
burg, Lynchburg, and Norfolk. Nearly all
Of them were interested, directly or, indi-
rectly, in the proceedings, and therefore
gave most earnest attention to the move
ments made by the counsel Immediately en-
ployed.
Some delay was asked by Mr.. J. Alfred
Jones, OF counsel for the company, until his
associates could finish the preparation Of q
demurrer they proposed to offer and an an
swer that they would file ii the demurrer
were overruled. s .s...
Mr.. Mcfarland said that according to
their understanding Of the rules Of practice
it was not permissible to demur to bill and
then to answerit. '
After some minutes Mr.. Jones, fearing
that the court was getting impatient, pro-
posed to state the substance Of the demur-
rcr, and was doing so when Colonel Gordon
brought in. the paper i'll question.
THE DEMURRER.
Mr.. Jones read the demurrer, as follows:
The demurrer OF the Atlantic, Mississippi
and Ohio Railroad Company to the bill OF
complaint of Francis Skiddy, William But
Ter Duncan, and Samuel L. W. Barlow,
trustees, complainants. This defendant by
protestation, not confessing or acknowledge
ing all or any Of the matters and things in the
said bill OF complaint to be true in such
manner and form rs the same are therein and
thereby set forth and alleged, doth demur
thereto, and for causes OF demurrer showeth:
1.) That the said complainants have not
by their said bill made such a case as en-
titles them in 4 court Of equity to any relief
from or against this defen tlant touching the
matters contained in the said bill or any OF
such matters.
(2.) That although it appears on the face
OF the said bill OF complaint that the
executed by the Norfolk and Peters
burg, the southsde, and the Vir-
ginia and Tennessee Railroad Companies,
prior to the decd under which the complain
ants claim as we'll as the State OF Virginia,
are necessarily and indispensable parties to
the decision OF the questions by said bill
raised and directly and materially interested
therein, that such mortgages and the said
State Of Virginia are not made parties to
said bill, and no sufficient excuse is given
for such omission as to make them parties as
aforesaid.
That it appears upon the face OF the deed
Of September 0, 1871, filed with and made
part OF the complainants' bill, and under
the terms and authority whereof the COM
plainants assume to act, that the said COM
plainants have no right or authority to en-
ter upon and take possession OF or to sell
any part of the property or franchises OF the
defendant until at least one fifth OF the bona
Ifde holders Of the coupons, representing at
least one fifth OF the bonds secured by SAID
deed, have demanded OF the trustees the
exercise OF the powers conferred upon them
by the decd aforesaid, and also until ninety
days after said demand. Yet the said COM
plainants' bill nowhere ayers that the requi-
site number of coupon-holders have made
such demand, and nowhere alleges that
ninety days have in fact elapsed since any
demand as aforesaid. : IL.
Wherefore and for divers other good
causes Of demurrer appearing in said bill
of COMPLAINT, this defendant doth demur to
the said bill and toall the matters and things
therein contained, and humbly prays the
Judgment of this honorable court whether
it shall be compelled to make any further or
other answer to the said bill, and prays to
be hence dismissed with its reasonable costs
In this behalf expended. ..,
Certified to by w. j. Robertson, Charles
S. Stringfellow, and James Alfred Jones, OF
counsel, and sworn to by William Malone.
FAIR NOTICE.
Mr.. Mcfarland thought it but fair to give
notice to the gentlemen en- the other side
that. in the event the court ovsrruled the
demurrer, he should insist that there should
be no answer allowed as right; ii at all, it
should be only permitted by grace OF the
court.
Judge Bond said it was matter entirely
in the discretion OF the court.
NOT A CASE FOR THE COURT.
Mr.. james Alfred Jones, OF counsel for
the railroad company, spoke in explanation
OF the demurrer, and argued that the bill OF
complainants was imperfect and insufficient.
Admitting for the purposes OF argument
that the company is insolvent, Mr.. Jones
maintained that the complainants had an
other and better remedy provided in the
covenant deed, which empowered the trus-
tees, when default was made, &c., to enter
unon possession Of the property. He
thought the prior mortgages and the State
of Virginia should have been made parties
to the suit, and that the Court ought not Sc
riousy to propose to go on in their absence.
Further he declared no Jurisdiction or equity
had been shown.
Mr.. Jones strongly insisted that clause
in the deed OF mortgage (Which clause Major
Stringfcllow read) required before proceed
inps for foreclosure were taken that there
should be request for such action. from
holders of one fifth OF the interest coupons
in default. No such request had been made
of the trustees, or, If made, was shown in the
bill. Now, if the required one fifth come in
and concur in asking the trustees for these
proceedings it will be too late.
Mr.. Jones reviewed the main points OF
the bin in clear and vigorous manner. He
passed upon the alleged default of interest
and Insolvency Of the company, and misap-
plication Of funds, separately and distinctly,
and argued that the bill was fatally defec-
tive as to each, and that their demurrer was
good, and should be sustained by the Court.
THE LEGAL TILT.
Mr.. Mcfarland arose to address the Court.
Before going into the argument he desired
that the Court would fix the order OF pro-
cedure for counsel, as there were great
number on each side.
Judge Bond said the Court would hear
two on each side-that was, il so many de-
sired to speak. They did not desire to force
the gentlemen to speak.
Mr.. Mcfarland claimed in the outset that
the corporation is insolvent. In his opln-