Yorkville enquirer. [volume] (Yorkville, S.C.) 1855-2006, 1878-08-22

presented to deponent from said A. H. Davega,
inasmuch as Mr.. Hamilton was not the attorney
of record in said execution. That deponent then
and there asserted his willingness to levy and
sell, should the attorney of record, or of the
plaintiffs, so order him. That Mr.. Hamilton
Stated that such orders would be given in wrl-
ting, but deponent has never received them.
r. H. GLENN, S. Y. G..
Sworn to before me, Notary Public for South
Carolina, at Yorkvile, this the 4th day of August
1878, 6. w. S. HART
1t thus appears that the plaintiff S execu-
ton had not been returned unsatisfied, but it
has been STAYED by his own instructions up to
the very date of the hearing of this case.
The plaintiff must stand or fall by his Judg,
ment. He cannot certainly rest his demand
for the appointment of receiver on the reso.
luton of the board of directors, of the Sth OF
June, 1876.
He is one of three co-judgment creditors
claiming under al ordinary judgment, which
runs against the property of the corporation,
and is lien upon it's realty and personality.
He has not obtained decree fora specific per-
formance of the contract, which he alleges
was entered into by the corporation III the
said resolution pledging the net earnings or
the road after the 1st day of October, 1876, to
the payment of the principal and interest OF
the note Of the company, given to the pam
tiff and his co-creditors, and on which they
have obtained judgment. He is estopped from
claiming such decree for it is shown that
from the date of the passage of the said reso-
luton, to the 10Th day of June, 1873, period
of more than two years, he was president OF
the corporation defendant, and exercised the
chief control over it's fiscal administration,
and applied no part of the earnings to the
liquidation of the said note; nor did he make
any demand that they should be so applied.
ANY right, therefore, that the plaintiff may
have had to demand the appointment OF re-
ceiver to execute the stipulations OF that res
olution, has been forfeited by his own lacheS.
1t is an elementary principal that court OF
equity will not interfere by injunction, or the
appointment of receiver on the part OF
complainant who has sanctioned or acquiesced
in the acts complained of. Ramsey VS.. the
Erie Railway Co., 39 Howard's Prac. Rep,
1913. Angel and Ames on Corporations, 312.
High on Injunctions, 7. Burr VS.. Wilson,
9th Maine, POI. Waterman's ed. on 1njunc-
tions, u. But the board of directors OF this
corporation had no legal power to pledge the
net earnings to the payment OF the loan re-
ferred to, beyond the End day of February,
1877; for the earnings were specifically seques-
trated after the last-named date, to the salts
faction of the mortgage held by Hopkins,
Dwight & Co., which mortgage was executed
by the Kings Mountain Railroad Company,
1SOO, W StCulc IllC VI oii0 poiiN''
and was assumed by the Chester and Len0lr
n 6. Railroad Company, upon the consolida-
tion of the two companies, III 1874.
The following is al extract from the mort
gage, which is still unSatiSfied, and forms
part of the record in this case:
"And from the date of the bonds, viz: the 18th
of March, 1866, no dividends on stock, nor any
claim upon the road shall be paid, except salaries
of officers and employees and the necessary ex-
penses of construction but all the net earnings
of the road shall be invested by the president and
board of directors in such manner as will form
sinking fund for final payment of the issue OF
the bondS.'
On the End of February, 1874, George w.
Melton. who then held the said mortgage, ell
tered into the following agreement with the
Chester and Lenoir Narrow Gauge Railroad
Company, which was set forth III the terms
and conditions upon which it purchased the
Kings Mountain Railroad:
"And the said G. w. Melton further agrees to
carry the present mortgage of the Kings Noun
tain Railroad Company, and the bonds thereby
secured, for the term of three years: Provided,
the semi annual interest be promptly paid on the
said bonds, it natures, at the rate OF IL per
cent. per annum and it is agreed that the pro-
visions of this agreement shall in no manner In
terfere with the right of the said &. w. Melton to
foreclose the said mortgage upon the failure of the
said the Chester and Lenoir Narrow Gauge Rall-
road Company to pay the semi annual interest
upon the bonds secured by the said mortgage, as
it natures at the said rate of twelve per cent.
per annum, and to pay the said bonds in full at
the expiration of the said term Of three years,
during which the said G. w. Melton agrees TO
carry the said debt: Provided, the semi-annual in
terest be promptly paid thereon.
1t will be perceived that the specific lien of
this mortgage on the net earnings OF this
road was only suspended for three years from
the second day of February, 1874, and there
t,,. ota n fornp
virtue on and after the Ind day of February,
1877. 1t passed, by assignment, to Hopkins,
Dwight & Co., who, it is stated by the plaintiff,
have filed their complaint for the foreclosure
of the same. The existence of that mortgage
would alone suffice as an mSuperable bar to
the remedy which the plaintiff seeks in this
proceeding. Wiswall vs. Sampson, IA How
ard 32. 1t is not necessary for me to notice
in detail other matters of law and fact, which
appear in the peadings and evidence, and
naturally impair the force OF the PLAINTIFFS de-
mand for equitable relief. | am entirely salts
fed, by the evidence in the case, that the cor
poratiOn defendant is abundantly solvent, and
the plaintiff must therefore be remitted to his
remedy at law l can perceive nothing in the
case to warrant the appointment of receiver.
Doubtless, the plaintiffs action in the premises
has been impeled by what he deemed a we'll
grounded apprehension Of loss, against which
he desired to invoke the interposition of IA
court of equity. 1t is my duty to judge the
cause as it appears in the record, without re-
gard to the parties, however estimable they
may be, and that duty must be performed as
it appears in the light OF the law and the evil
dence.
1t is, therefore, ordered, adjudged and de-
creed, that the rule issued herein he and the
same is hereby discharged; that the order OF
injunction be set aside, and the complaint be
dismissed with costs.
T.J. MAcKEY, Circuit Judge.
August IA, 1878.
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case Price 25 cents.