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XII

ARGUMENT

DELIVERED AT MONTPELIER, VERMONT, OCTOBER, 1879,

BEFORE THE

SUPREME COURT OF THE STATE

EQUITABLE ESTOPPEL

IF YOUR HONORS PLEASE,-I appear in this case for the Vermont and Canada Railroad Company. Their legal position is, in my judgment, the same with that of the first mortgage bondholders, for whom I appeared when this subject was formerly before you. The interests and relations of both are harmonious, and the only difference between them is that in the succession of the securities the Vermont and Canada is prior and the first mortgage is subsequent.

The case is infinitely perplexed and voluminous in its details; but it is not, in my apprehension, upon a study of those details that it is to be determined. If I have not misunderstood it, and I have tried not to misunderstand it, its ultimate disposition will depend upon the decision of two or three plain questions that seem to me to underlie the whole business. It is only upon those points that I shall have occasion to detain the Court. And I shall ask your honors' attention to the consideration of what it is precisely that the Court is now called on to do, in whose behalf they are invited to do it, and upon what precise legal ground, if any, can the relief that is sought for be found to rest.

neous,

(The forensic arguments of Mr. Phelps were always extempora

Delivered for their immediate effect upon the jury or the court, they usually left no record save in the memory of interested auditors. On one occasion, however, a stenographic report was made, which was afterwards written out and printed, and is here reproduced in a condensed form. The case was one known as the Vermont Central litigation, which came before the Supreme Court of Vermont on what was then supposed to be a final hearing, at its General Term in October, 1879.)

To understand exactly what is now claimed, an outline of the history of the transaction out of which it arises, brief enough to present it all in one view, is necessary.

Originally the old Vermont Central Railroad Company owned and occupied its road, which it had built. The Vermont and Canada owned its road, which it had built. It had leased that road to the Central Company by a lease, which is printed in this record, and which has engaged the attention of the Court till its provisions have become very familiar, the result of which was to give the Central the perpetual right to occupy the Canada so long, and so long only, as they paid the rent; and under that contract, and as lessees, the Central went into possession. Then upon default in the payment of the interest upon the Central's first mortgage, by which that mortgage became absolute at law, the Central Company in 1854 surrendered the possession of their road to the trustees of the first mortgage, who came into possession of the Central and Canada roads under a deed of surrender and under the provisions of the mortgage deed itself. Then sprang up a litigation between the Canada and the Central, which was a genuine litigation, founded on the claim of the Canada that there was an arrear of rent due them which was in dispute, and for which they claimed the remedy given in their lease. The result of the serious litigation on that subject was the decree of this

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