by John Marshall Harlan

“ They now insist, as they have insisted all along, that they owe no duty to the complainant, and that no one had any right to share in the proceeds of the trust fund arising under the agreement except certificate holders, or in the distribution of the property which they acquired by purchase. It does not follow, because the complainant had no interest in the trust fund, and was not entitled to share in its distribution after he had parted with his certificate, that the trustees owed him no duty respecting the unsurrendered two-thirds of his bonds. ”

“ The case is one peculiarly for the application of the rule that equity, in the exercise of its inherent power to do justice between parties, will, when justice demands it, refuse relief, even if the time elapsed without suit is less than that prescribed by the statute of limitations. ”

“ The defense, stated generally, was that the trustees held relations of trust to those who subscribed the agreement of 1858 only in respect to the debts for which the subscribers signed; that the plaintiff refused to avail himself of the opportunity to become a party to that agreement in respect to the bonds held by him, except the three construction bonds for which he signed; that by the sale under the above decree of foreclosure all the debts of the Ohio & Mississippi Railroad Company that were subordinate in right to the holders of second mortgage bonds were cut off ”

“ They did so because a sale, and a purchase by them under such a sale, would afford a convenient method of closing out their trust, and enable them to convey a satisfactory title to the new corporation. Of course, they occupy no better position towards the complainant than they would if they had purchased pursuant to the conditions of the trust. ”

“ That the owners of income bonds should have loaned to the company the money required to make the cash part of the above payments; such loan, with interest, to be repaid at the earliest practicable time consistent with the proper maintenance of the road. (3) That the city of Cincinnati should grant such modifications and releases of its demands, contracts, and claims against the company as its directors and the trustees named in the agreement should deem satisfactory. ”