The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1881-01-14


No well-read lawyer at this day would
venture to assert that the jurisdiction OF a
court Of equity In anv ease is mere matter
Of grace depending upon the favor of The
court. or that the court may arbitrarily inn
pose terms upon parties according to us
caprice and pleasure as The price of It's IN
reference. When we say that the remedy
IL discretionary" we mean simply that IL
depends on equitable considerations eXclu-
siyely. In this respect II II distiDgnisba.
BILE from the remedy 10 enforce legal
right; as, for example, suit TO subject land
ID the lien OF judgment, or TO receive dam
ages at law for the breach OF a contract.
! In these latter instances the right Is abso-
lutte, and the plaintiff, whether in one trlbu.
nal or The other, IL be has kept himself
within the strict rules o. the law, is entitled
TO enforce his demand withour qualification
or condition; hut when he invokes The ex-
traordinary Jurisdiction OF court OF equity
/ In his behalf. based purely upon equitable
grounds. his application is not a matter OF
strict right. er debito juStitid, but rests with
the sound discretion OF the Court whether
! it shall be GRANTED, looking to all the cir
cumstances OF the particular case.
The Court will inquire not only whether
the conduct OF the plaintll has been fair
and conscientious in every respect, but
whether the proposed relief will operate
hardly and Oppressively upon other parties.
Ii will look to all the facts and circum-
stances and all the collateral incidents wi h
a view to determine its action and II fully
satisfied the exercise OF the jurisdiction IN the
particular case will he uri ust or Oppressive.
il Will refuse to interfere altogether. or it
will impose Just and reasonable terms upon
the applicant as 4 condition Of relief. In all
such cases the Court possesses the power OF
ada,ting It's DEGREES TO the circumstances ot
the case-Of adjusting crOss.equiiies, OF inn
uosiug terms, G1d of doing complete JUS
lice in its mButCst details TO all concerned.
These principles apply with peculiar
force 10 the appointment OF receivers.
Ii i an exercise OF the extraordinary power
Of the COuIt. based upon equitable con-
sideraiODs. H. j. often harsh and Oppres-
sjye i'm it, effects, wrestling the property
from the owner without a hearing ana be-
fore a decree, and inflcting irreparable mis-
chief. As was sad by Lord El10n with re-
ference 10 bill for specific performance,
the jurisdiction is not compulsory with the
Court. but the subject OF discretion. The
question i not what the Court must do. hut
what il NAV do, under the circumstances.
II # may refuse the application altogether.
/ II may, as a necessary consequence, impose
terms a. Il condition Of granting II, ana
It may modify those terms from time
TO time, as occasion NAV require.
In owen as. Harman, 1 II. J.. Re-, 99I,
! Lord Grams worth said The receiver, ii APP
pOinted in this case, must be appointed ~
| the prlpciDleS on which the court or eli. -
Gerry acts, by preserving the property pend
inr the litigation which is TO decide the
riohs OF the liiigant parties. In such
cases the court must OF necessity exercise
a discretion as TO whether 1t viii or will
not take possession Of the property by lis
officers. No positive unvarving rule can be
lnd down rs 10 whether the court will or will
not interfere by this kind OF interim pro-
(, ctiOn OF the property. 1t l., however,
useless TO multiply authorities upon this
subj CT. They may be found in the
elementary works and in the adjudged
cases. See High on Receivers, kels
on Receivers, and the cases cited. The
appointment OF receiver is analogous III
its nature TO preliminary injunction.
Iis primary object is simply to take cnarge
OF the property pendcnte lite. so that 1t may
! he forthcoming to answer the hnai decree
Of Ihe court. Ii settles nothing; it deter
mines no right it Is merely one OF the
modes in which the preventive lu-tice OF IA
conrt II chancery is administered. II ope-
rates a an equitable sequestrallon OF The
renrs and profits TO be Ultimately disposed
OF according TO the rights and prl0riiles OF
those entitled, whether regular parties In
The cause or only parties In Interest coming
before the court in reasonable time TO as
sert their claims. Beverly rs. Brook; 4
Grat., 1871.
What, then, are the rights OF the parties
in interest now before the CourtY ! do not
deem it necessary to 20 into a discussion of
the principles OF law relating To mortgages
OF railroad properly. The membranes
involved here are not mortgages; they are
ordinary deeds Of trust. In some OF them
mere power OF sale is conferred upon the
trustees. Under these deeds the only
remedy OF The trust-creditOr- Is, Of course,
in 4 sale OF the property in accordance with
the terms and provisions OF the deeds
themselves. In the other deeds II l.
provided. that upon default made in the
payment OF principle Orinterest and demand
made by The creditors, the trustees sb'll
take possession Of and operate the road.
and after pay ing the necessary expenses so
incurred. they are TO apply the ballnce to
the creditors secured, or the trustees may,
il required, make sale OF the property.
Under neither OF the deeds have be credI-
tors any lien on the earnings OF the road
until entry and possession taken. For ac-
cOrdin9 10 the authorities although the
mortgage by is terms may cover the earn.
ings, the mOrtgagec has no lien upon
them so long as the road remains
in possession OF the company, nor does
"A lien attach even I'm suit for a foreclosure
aud sale until receiver is appointed. The
bll filed IN this case in behalf OF all the
creditors, and assented to by them, ayers
that the trustees cannot take possession un-
der any Of the deeds IN consequence OF tue
conflicting claims and liens upon the prop
erty. and the Court is asked TO take posses
SION for the creditors, through tbe insiru-
mentality Of a receiver, and 10 seques:rale G
the tolls and revenues for their benefii to
the exclusion OK all other creditors.
This claim OF rnc appelee> i not matter
OF right on their part. IL does not result
from nor is il a part Of their contract. TO
use the language OF the Supreme Court Of
New York upon this identical question.
" This relief it will be readily seen from
the conditions necessary 10 It's ento,men
does not grow directly out OF the relations
Of the parties or the stipulatiOns Contained
IN the mortgage. but out OF equitable con.
siderations alone. 1t IS not, therefore. "A
matter OF strict right, but it /, addressed to
the sound discretion Of the COurt."-Syra-
cuse City Bank Us. TaIlman, 81 Birker,
20S. aud cases there cited.
Upon this point the language OF the SUI
preme Court OF the United States is very
emphatic: "The morgagee mas his strict
rights, which he may enforce in the ordi-
nary way. II he asks no favors he need
grant none. But " he calls upon court OF
cbaucery TO put forth its extraordinary