36 Vt. 721 | Vt. | 1864
The orators having a fund in their hands as trustees bring this bill for a decree of distribution directing them to whom and in what proportions to pay the same. The fund consists of damages recovered by them on an injunction bond in a suit in chancery against them and the Troy & Boston R. R. Co., by Sturges and Douglass and others. The history of the controversy appears in the report of that case in 31 Vt. 1 ; 33 Vt.; and in the decision of this court in the same case at the February Term, 1863, reported ante p. 439. In that case damages were recovered by the trustees and also by the Troy & Boston R. R. Co. The damages being several in their character were assessed to them severally. The aggregate amount of the damages sustained by the defendants in that cause by reason of the preliminary injunction amounted to more than the $30,000. the penalty of the bond. The court having decided that the orators in that bill were not liable for damages beyond the amount of the injunction bond, it became necessary to apportion the $30,000. between the Troy & Boston R. R. Co., and the trustees, and in doing so the court incidentally decided that the bondholders who participated in the prosecution of the injunction suit in behalf of the orators therein, were not entitled to share in the distribution of the damages recovered on the injunction bond; and on that basis apportioned the damages between the Troy & Boston R. R. Co., and the trustees. It will be seen on reference to that case that the damages recovered by the Troy & Boston R. R, Co., was for being deprived by the temporary injunction, of the use of the Western Vt. Railroad under a lease to them from the trustees, to set aside which lease that suit was prosecuted by some of the
The bondholders disagreeing as to the propriety of attempting to set aside that lease, a paper was signed by some of them authorizing a committee of the bondholders to institute proceedings to vacate the lease, and tlie suit was prosecuted accordingly. If these appellants authorized or participated in the prosecution of that suit, they are no more entitled to share in this fund than those bondholders who were parties complainants on the record.
1. David Carpenter, Luther Graves, and Sophia B. Norton administratrix of Julius Norton, own bonds in severalty, but the facts on which their rights severally depend are substantially the same. It appears a power of attorney was executed by those who represented these bonds to James L. Stark and H. G. Root, about the 3d day of January, 1857, authorizing Stark and Root to act in their behalf in all things in relation to the leasing- or future operating of the railroad. In pursuance of that power of attorney, Stark and Root went to New York and opposed the leasing of the railroad by the trustees, and subsequently Stark,
2. In relation to Moses F. Rogers, Stephen R. Rogers, W. W. Cheney, Asa F. Curtis, Joseph R. Wing, E. G. Dillingham and S. R. Wing, it is not denied but that Moses F. Rogers had authority to act in their behalf, and that in whatever he did in the matter he did so act. The masters find that “ from the testimony and evidence herewith returned, and his, (Moses F. Rogers’) letters to Jonathan Sturges, copies of which are returned herewith, we find that he (Moses F. Rogers,) assented to and co-operated in the commencement and prosecution of the injunction suit.” This finding is warranted by the evidence whether we look at the written correspondence alone as the appellants’ counsel claim, or whether we take it in connection with the other evidence.
3. The claim of the Saratoga Bank rests on bonds to the amount of $4,500. which belonged to one Platt, who at the com
4. Jacob W. Moore the masters find, executed and delivered or sent to the committee of the bondholders a power of attorney, perfect in all respects to authorize them to act for him in the commencement and prosecution of the injunction suit, except the names of the committee were not inserted, a space for the names being left blank, and on this authority the committee acted. The masters find that Moore thereby authorized tlie commencement of that suit. .. It is a reasonable presumption that this instrument was forwarded to the committee by Moore for the purpose of clothing them with power to act for him, and the committee were justified in so regarding it, whether the names were left blank by mistake or by reason of the names of the committee being unknown to him ; &nd he is not now at liberty to repudiate it. Moore must be classed among those who participated in the prosecution of that suit.
5. Joseph H. Parsons obtained his bonds of the Savings Bank of Middletown, Connecticut, in 1860. The final decision in the injunction suit affirming the lease, discharging the receiver and restoring the railroad to the lessees, was made in'December, 1858, so that the rights of the parties to the fund in question were fixed before Parsons became the owner of the bonds. The bank while it owned these bonds co-operated in the prosecution of that suit, and consequently had no claim to this fund when it transferred the bonds to Parsons. Assuming that this transfer of the bonds would operate in equity to transfer any interest the assignor had in this fund in respect to these bonds, yet it is clear that the assignment of the bonds would carry with it no greater equity than the assignor had, notwithstanding the assignee had no notice that the assignor had participated in the prosecution of the suit. Whether Parsons would be personally liable to contribute to the expenses of the suit is quite another question. As
6. The appeal of Myron Clark may be disposed of substantially, on the same ground as that of Parsons. Clark was an accommodation endorser to Lapham for the Western Vt. R. R. Company on a draft. Lapham held as collateral security the bonds in question which the R. R. Company had turned out to him, the bonds never having been before • negotiated. Clark brought a bill in chancery for relief against his endorsement; the court held him liable, but decided that on payment of the draft he should be subrogated to the rights of Lapham as to these bonds. Clark paid the draft and took the bonds. This order of subrogation was after all these damages had accrued which forms this fund.' Lapham while he held the bonds participated in prosecuting the injunction suit, and therefore he had no right to the fund. Clark under the order of subrogation takes no greater rights than Lapham had. A question is made as to the power of Lapham to represent those bonds in the prosecution of that suit. This is more properly a question between him and Clark, — it can not be used to give Clark under the order of subrogation any greater right to this fund than Lapham had, to the prejudice of the innocent bondholders who had no agency in procuring the injunction or prosecuting the suit.
7. Alonzo Child has no right to a distributive share of the fund by virtue of the bonds held by him. It appears that he was absent at St. Louis engaged in business and constituted his nephew O. W. Child his attorney to attend to these bonds and other business. O. W. Child as such attorney, signed the paper appointing Stark, Sturges and Douglass a committee of the bondholders under which authority that suit was commenced and prosecuted. No question can be made as to the authority of 0,
We find no error in the decree of the court of chancery and it is therefore affirmed and the cause remanded.