Montgomery County sentinel. [volume] (Rockville, Md.) 1855-1974, 1896-10-09
The Canal Case.

Governor Lowndes, as administrator of
Lloyd Lowndes, deceased, surviving part
ner of L. & r. T. Lowndes, and others have
filed petition with the Court of Appeals
asking for a reargument In the case popu.
larly known as the canal case, which was
decided by divided court at the April
term. The petitioners allege that they re.
covered judgments in the Circuit Court Tor
Allegany County in 1868 which aggregate
over $4,000; that these judgments have
been revived from time to time by writs of
scire facias and that they are now valid and
subsisting judgments, and that they have
been liens since 1868 on all the real proper y
of the canal company in Allegany county;
that Notwithstanding this fact the petition
ers were not made parties to the litigation
had in Washington county. They then re-
cite the history of the litigation: That
Judge Alvey, by decree passed in Decem-
Der, 1890, directed a sale of the canal, but
stayed the operation OF the decree for four
years from May /, 1891, placing the canal
in the hands of John X. Cowen and others,
trustees for the bondholders under the act
of 1874, during that period, which decree
was affirmed by the Court of Appeals, but
the Court of Appeals declined at that time
to pass upon the question of the priority OF
liens on the ground that as a sale would not
take place for four years, it was needless to
decide the question then, but the court adj
ded that the question would be decided be-
fore the sale; that Judge Stake, by an or
der passed in July, 1894, extended this pc.
riod to ten years, or for six years from
May /, 1895; that an appeal was taken by
the State from this order and was argued
before the Court of Appeals at its October
term, 1895; that thereafter, in March, 1896,
the Court of Appeals passed an order pac-
ing the case on the April docket of that
court in order shat the respective liens on
the canal may be considered and passed
upon before this court determines the pend
ing application for the extension OF the stay
allowed by Judge Stakes order" The Pc
titioners then allege that unless the Court
of Appeals intended to order sole OF the
canal there was no more reason for deciding
the question of the priority OF liens when
passing upon Judge Stakes order extending
the possession Of the trustees and postpon
ing the sale for six years than there was
when passing on Judge Alvey's decree,
which postponed the sale for four years on
ly; that under these circumstances the pc.
titioners and counsel for the State OF Mary
land, as petitioners were informed, were led
to believe when the court stated that they
intended to decide the question OF the prior
ty of liens that they had already determin.
ed to order the execution Of Judge Alvey's
decree Tor sale; that when the case was
argued at the April term only the question
OF the priority OF liens was argued, and that
consequently Judge Russum, who had recent
ly come on the bench, has never heard oral
argument ON the question OF sale.
The petition then alleges that Mr.. Cowen
and his cotrustees have failed TO comply
with Judge Avey's decree in not keeping
an Office in Hagerstown, where their books
and transactions could be inspected by all
parties interested, and in not making reports
showing in detail their receipts and dis
bursements; that said trustees are, in truth,
not acting Tor the benefit OF their bond
holders, but tor the benefit of the Baltimore
and Ohio Railroad Company, which has no
legal interest in the canal, but is seeking TO
prevent its being used as rival either as
waterway or rs railway, and that the
money to repair the canal was furnished by
certain stockholders of that railroad com.
pany who had no legal interest in the canal
that thus the high powers of this court OF
equity are being used by parties who have
no legal interest in the litigation to defeat
the lust claims of the petitioners and OF the
State of Maryland; that the offer of the
Chesapea and Ohio Canal Transportation
Company to lease the canal and pay $780,.
600 year rent for six years is deceptive and
illusory; that said company exists only on
ever been subscribed for or paid for, and
that the offer is not bona iide and is not in
tended to be kept except by system OF
book keeping; that even if bona fide, the
rent, amounting in the six years TO 100000,
would have to be applied as follows; about
$15,0 900 to reimburse the trustees for the
money paid to the receivers, $50 1000 year,
or $4,000 during the the years, to pay IN
terest on the bonds of 1873, and the balance,
TO wit, 1886, 900, would be appropriated to-
ward paying the $430000 expended by the
trustees or the said stockholders in the Bal |
timore and Ohio Railroad Company in re.
pairing the canal, and that thus not one
dollar could or would be paid TO the bond
holders under the act of 1874, and yet it is
for theiI alleged benefit that these trustees
are now in possession Of the canal and ask
for a further possession of six years.
The petition then prays for a re argument
of the case, to the end first, that Judge A.
vey's decree for a sale Of the canal may be
executed, and, second, in case the court
should refuse to order q sale at this time,
that the case may be rcmanded to the Cir
cult Court for W Washington county and testi-
mony be taken on the matters alleged in the