Evening star. [volume] (Washington, D.C.) 1854-1972, 1890-09-03

only occupy tne posation OF Ordinary non-llen
creditors Of the company"
An INJURIOUS DELAY.
Taking up the next point made the judge
states: "As to the position taken that there
should be NO decree for sale until all the de-
belong 70 the canal company shall be ascer-
tanned and defined and the rights thereto set
tied, think, under the facts OF this case,
there 10 NO sufficient reason for its adoption.
most certainly be productive Of injurious con-
sequences"
Continuing, he holds that st will be, of
course. the duty Of the trustees, before sale, to
ascertain with ~ much certainty rs possible
the extent and character Of the property 70 be
sold, and give fair description thereof. and all
the right and title Of the parties to these pro-
ceedings in such property will pass by the sale.
And II IL should be ascertained that there are
parcels Of land that can be severed from the
advantage than IL sold with the canal, and that
she sale Of the main work will not be depre-
ciated thereby, upon report and application OF
the trustees 2 supplemental decree may be
may depend, however, upon considerations not
not necessary TO be discussed.
1t has been suggested that these separate
parcels of land, especially those in the District
Of Columbia, il sold of at once, would pro-
duce price nearly, il not quite, suficient to
restore the canal to working order. But IL it
be true that the canal, II restored TO working
order, could not obtain trade and be operated
SO as to produce net revenue that would be ap-
plicable to the payment Of the bonds that is
sued under the act Of 1874, it would be an I'M
justifable use, and, indeed, misapplication Of
the assets OF the company, SO to expend them
to the prejudice Of the state, to say nothing of
the other creditors interested. Such assets,
whatever they may be worth can be better ap-
piled to the payment Of the debts of the COM
pany than to the very doubtful experiment of
restoring the canal.
The third point raised, a. to the right and
decree sale Of the canal and ali the property
and franchises Of the company for the pay
ment of its mortgage debts now binding on the
corpus Of the work, Judge Alvey holds that
there can be no question OF the right or power
OF this court, on the present proceedings, to
decree . sale of the canal and all the property
and franchises Of the company, discharged OF
all liens and encumbrancss thereon.
THE JURIsDICTIoS OF THE COURT.
As to the fourth and last point made, which
Is in regard 10 the right and power Of this
court to decree the sale Of the canal as an en-
tirety, as we'll - that part lying within
the District Of Columbia and the part To-
Gated within the limits of this state.
Judge Alvey rules that lit would certainly
the sale OF the work to the boundary OF the
state. Such sale would most likely produce
confusion in dealing with the rights Of cred
itors to the proceeds Of sale, and seriously
affect the mlsble value Of the work. But as all
parties holding title are before this court and
will be bound by aud subject to its decree, am
OF opinion. that the decree can be made to en-
brace and authorize the sale OF the canal and
all the property and franchises Of the canal
company from one terminus to the other"
The court cites authorities to sustain this
position. He states that it would seem to be
settled, both in England and in this country
that where court Of equity acquires authority
and jurisdiction to act upon the person it may
indirectly act upon real estate situate in
another state or jurisdiction by means and
through the fundamentally Of this authority
over the person. and that it may compel such
person to give effect to its decree respecting
such property, whether it goes to the entire
or burthens. Sto. Conf. of Laws, sec. 544.
This general principle has. in the more recent
cases, been somewhat expanded and given
special application in @ class OF cases to
which this belongs In cases calling for the
works OF interstate commerce, running
through two or more states, the application
of the principle Ia not only matter OF con-
venience, but of practical necessity. This is
we'll stated and illustrated in the case Of Null
Ter agt. Dows, "a U. s., IA. In that case de-
cree was entered by the circuit court Of the
United States, sitting in the district of Iowa,
foreclosinR mortgage executed by q railroad
company of Its entire road and franchises, and
ordering sale thereof-a part OF the road SO
ordered to be sold being located in the state Of
Missouri. The court passing the decree had
jurisdiction Of the mortgagor and the trustees
in the mortgage as parties to the suit, and on
appeal 1t was held by the Supreme Court of
the United States, affirming the decree below,
that there was no error because part of the
property ordered to be sold was situate in the
state Of Missouri; that good title could be
made by sale under such decree by requiring
the trustees in the mortgage to convey. The
supreme Court in it, opinion, Mr.. Justice
title value when Its ownership is severed from
the o ownership OF another part. And the fran
chise OF the company IL not capable OF divi-
sion. In view of this, before we can set
aside the decree which was made, it ought
to be made clearly to appear beyond the power
of the court Without reference to the English
chancery decisions, where this objection to the
degree would be quite untenable, We think the
power Of courts OF chancery in this country Is
sufficient to authorize such q decree as was
nized doctrine that a court Of equity. sitting in
a state and having jurisdictian Of the person,
may decree q conveyance by him of land in
another state, and may enforce the decree by
process against the defendant. True, it can
not send its process into that other state nor
can IL deliver possession OF land in anot Their
jurisdiction, but II can command and enforce q
transfer Of the title. And there seems to DO no
reason why it cannot, in proper case, effect
the transfer by the agency Of the trustees when
they are complainants" To the same effect is
the decision in the case OF Wilmer W. Att and
Rich. r. Co., Z Wood, AT.
1t appears, however, that before the institu-
ton Of the proceedings in this court, similar
proceedings to the present had been instituted
by the complainants in the Supreme Court of
the District of Columbia sitting in equity, but
to which the state of Maryland is not a party,
and that before receivers had been appointed
here receivers had been appointed by the court
in the District to take charge Of all that por-
ton Of the canal and the c0mpanys property
within the District OF Columbia, and those re-
trustees appointed by this court to make sale
the possession OF the receivers in the District
Of Columbia. The possession of those receiv-
ers Is the possession OF the court that ap-
pointed them, and therefore, before any sale
can be attempted to be made Of the canal
under decree Of this court there must be a
concurring or ancillary decree obtained from
the court in the District Of Columbia. Wiswall
VI. Sampson, IA How, 50, 65, and cases there
cited, and opinion Of Mr.. Justice Bradley in
Wilmer VS.. Att and Rich. r. Co., 2 Woods,
423, Al. Such decree, / assume, can be oh
tanned on the proceedings now pending in
that court 80.
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without extra cost ct 6l9 and 1851 Pennsylvania
avenue.