Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1907-12-16


tachmcnt. nor was any actual change
made in their location or custody at the
time of the saale on the execution. The
rails were from y TO 50 feet in length and
weighed GO pounds TO the yard. and the
officer appears to have treated them as !
property which by reason Of its bulk
could not be Immediately removed R 5.
Chap s.. Sec. ~. and sought to preserve
the attachment by filing a copy of his
return in the town clerks office.
But in consequence OF financial cmbas-
rassment bill in equity was filed in this
court March -, 1906. praying for fore
closure of the mortgage above described
and the appointment of a receiver. The
Federal Trust Company, the mortgage
therein named. was duly admitted as
part" plaintiff to this bill and the defend
ants having been appointed receivers of
the corpora lion made written demands
upon its officers for possession Of its
property. ard with the express consent OF
these officers took possession Of all ITS
property. including the rails in question
by virtue of decree of the court au-
thoriZing and directing them 50 to do. the
receivers proceeded to complete the road
to Crescent Beach ana for that purpose
used portion Of the rails in question.
which We're placed beside the road for
that pun pose. The defendants accordingly
contended that this action Of trovcr is
not rlaiDtanablc, first because any lien
created hy the plaintiffs alleged attach
ment of the rails in question was not
preserved by the appointment of a keeper
to maintain possession of the property
second, because the property was COW
cred by the terms of the mortgage and
sally passed into the custody of the re-
tyivers and no action could be maintained
'.ra"st them without permission Of the
lpon the threshold, of the inquiry the
l,diatif challenges the validity OF the re-
vcivers appointment. on the ground that
the court had no jurisdiction of the pro-
ceedinss by virtue of which theey we're
appointed. This objection, however. is
clearly untenablc. 1t appears to have
been suggested by the recent decision of
this court in Moody vs.. Port Clyde De
velopment Co. 1o2 Maine. go. 1t was
there held that Chapter s.. OF the Public
Laws of 1905 under which the rec civcr in
that case was appointed. was in effect an
insolvent law. and that inasmuch as the
Cnllcu ctdicS kfuplcN -NCt OF >'S WIS
in existence at that time Chapter S. OF
the Laws of 1908 never went into opera
ton and the State court he'd no aut hority
To appoint a receiver But III the case ut
bar the court was clearly authorized to-
take jurisdiction of the bill for the fore
closure of this mortgage hv virtue of
Chapter =. Sec. 80. of the Revised Stat
uteS, and in accordance with Articles =
and OF tie mortgage. 1t had authority
to appoint receiver without tho all of
the provisions of Chapter 81 Of the Laws
of 1905. Furthermore. it appears from
Section of the United States Bank
ruptcY Law of 1898, as amended III 1905,
hat railroad corporations are MOI inClud-
cd in the terms of that act since it is OK
pressly made applicable only to corpora
tons engaged principally in ''planufac-
turing, trading. printing. publishing. min
ing and the mercantile pursuits" IT was
accordingly held in Calling vs. Seymour
Lumber Company. 1l3 Fed. Rep. 49, with
respect TO the bill brought tc forcclose a
mortgage and APPOINT a receiver. that al
though the state law srSp6 njed as
applied to cases Of insolvency. il was Il
good bill: for the foreclosure of a mort
gage and the appointment of receiver
and that the receiver was entitled to hold
the property as against the trustee in
bankruptcy, the latter being entitled only
to the excess of value OF the property
above the mortgage debt.
1t is next Contendcd in behalf Of the
plaintiff that notwithstanding tie pro
visions of +. S. CHI. IS. Sec Il. that any
street railway corporation may issue
bonds in accordance with the provisions
of general law for any lawful purpose
and secure the same by mortgage Of itS
road. franchise ard property" the mort
gage in question to the Fedora! Trust
Comrany cannot legally include after az
quircd property like the rails in question.
for the reason alleged that ut that time
the corporation had no tangible property
in exist ancc and nothing to mortgage OK
cept it's franchise. The general PROPOSE
ton is not questioned that a mortgage at
tachcs to any property which is an "ac-
cession to the thing granted, which is ON
braccd within the powers Of the company
as they existed when the mortgage WAS
executed hut it is argued that the sub
sccuently acquired property in this case
was not en- accession to anything that
existed when the mortgage was made.
execution of the mortgage The corpora
ton hal acquired title to tWo> acres of
Land for station nui poses, and it is not
ControVcI ted that it was legally orSdn-
lied corporation with franchise for Il
street railway and that q copy Of the
survey and location he'd been flied with
Inc commissioners. II is not necessary
that the corporation should lie actually
possessed Of janSihl" property approXi-
mating III value tie amount of the bonds
which tho mortgage is given to secure III
order that al, express provision therefor
in The mort gage may be legally opera
tive to iEClrdc subsequently acquired
property. Such requirement would de
feat tho principal purpose for which such
mortgages are authoriZnh They arc OK
ccuted for the purpose Of procuring the
necessary funds for the construction and
equipment of the railroad. and it would
he n s"lf-dcstructive provision that would
require railroad fully constructed and
equipped as the only legal basis If such
n mort gage. THIS practical feature of
| the question IS more fully recognized in
r <. Oh. -. Sec. -. which by Section Is
o: Chapter =; is expressly made applicable