Samuel Freeman Miller

“ An unjust advantage has been obtained by one party over another by a perversion and abuse of the orders of the court, and the party injured comes now to the same court to have this abuse corrected, and to carry into effect the real intention and decree of the court, and that while the property which is the subject of contest is still within the control of the court and subject to its order. ”

“ Paul Railway Company was formed by the purchasers at a sale under a decree of the United States court, does not make the company a ward of that court. The company has no special privileges there, and owes that court no peculiar allegiance. John Doe, of Wisconsin, might have committed the same wrongs against the complainant that are alleged against this defendant. Would it in that case be contended that he could be punished, or that those wrongs could be redressed except by an original suit? ”

“ The general unity and entirety of the road is admitted; and the fact that a railway company's rolling stock is common to its whole line, and does not belong to a particular part thereof, is a matter of common observation and knowledge, of which the court will take notice, as the common rule in all cases of a continuous and unit way. ”

“ By settled equity practice, a defendant in an original suit cannot prosecute a supplemental bill. Such a bill can be brought only by the complainant, or by those who stand in his place. Moreover, by equity practice, a supplemental bill cannot be entertained in any case where the decree in the original action has been completely executed, which this decree has been; for the foreclosure suit is ended: Bronson, Soutter and Knapp have performed fully their writ. There can be no supplemental action to a thing which has been completely finished. ”

“ The complainants in the original foreclosure suit made defendants of all the judgment creditors of the company who had liens subsequent to themselves, and made the Milwaukie and Minnesota Company defendant, who held under the subsequent mortgage to Barnes, with a view to cut off their equity of redemption; but they did not make defendants of Bronson and Soutter, who held a subsequent mortgage on the Eastern Division, and a subsequent lien on the rolling stock, which complainants would also desire to extinguish, if they had believed it covered the same rolling stock which theirs did. ”

“ Viewed as we thus view the matter, the expression of the decree of sale, which in the statement of the case (p. 618) is signalized by index hands, and which has been the subject of different constructions, 'the remaining rolling stock is subject to prior liens,'-becomes both clear and reasonable. The history of the case, then, stands thus: The court below made its decree of foreclosure and sale in the Land Grant case, and directed a sale of all the rolling stock on the road, as described in that mortgage. ”

“ His advertisement of sale so expressly stated it. The sale was so made, and reported to the District Court, setting forth that the portion of rolling stock specially named was sold free from all incumbrance, and all the remainder subject to the lien of prior mortgages. The sale was afterwards, on hearing, confirmed as made. The deed of the marshal to the purchaser, and from the purchaser to the St. Paul Railway Company, was of the property as sold. Can any history be more plain, more probable or apparently just? We think not; and we add that none can be more conclusive. ”

“ The complainant is a corporation organized under the laws of Wisconsin and situated in that State. The St. Paul Railway Company, one of the defendants, is in like manner a corporation of that State, and Pratt and White, and other defendants, are also citizens of Wis consin. It is obvious that from want of proper citizenship in the parties, the suit cannot be maintained in the Federal court as an original suit. The appellant accordingly relies on the subject-matter of his bill-its character as a supplemental bill-to bring the case within the jurisdiction. Is the bill then a supplemental bill. ”

“ In short, such a use of equity mechanism as it is here attempted to make, we venture to assert would never have been thought of by counsel possessed of less resources and devotion to his clients than the able one-subtle, bold, and strong alike-opposed to us. ”

“ Now it is argued that the object of this order was to ascertain and settle the priorities between these different mortgages. No such inference can be made from its language, for it says nothing about priorities in date, or superiority of lien. ”

“ We will ratify the marshal's interpretation, and so affix the meaning which others have taken as the most natural, and which we ourselves now think would have been the best, had we expressed it.' What is there unjudicial, or in any way irregular, in a mental process such as this? ”

“ And your orator, as the owner of the equity of redemption of the said Eastern Division, and rolling stock and franchises pertaining thereto, was made a party defendant to the bill of complaint in the suit commenced to foreclose the said Eastern Division, mortgage ”

“ That notwithstanding this, the Milwaukie and St. Paul Company were building and would soon complete a railway from Milwaukie, by way of Watertown, to Portage City (see again the diagram at page 610) , independent of and to be used in competition with the said Eastern Division, now owned by the Minnesota Company, complainants in the bill ”