with a clear and unquestionable title to their road, with a clear and unquestionable title to the Central road as mortgage security for the payment of their rent; what on earth had they to gain by making themselves partners and putting in their estate, their unencumbered and separate estate, into the enterprise of running this railroad line, out of which they could not get anything but their rent, which they were sure to get anyway, in which they might be swamped and ruined if the enterprise proved unfortunate? It is not conceivable that the management of the Canada at that time would have made such a contract as that; it does not consist with the surrounding circumstances, or the situation of the parties, or the object in view.

Why, then, it may be asked, did they become a party to it, as their claim for rent was established by their lease and the first decree? It is because it contains a provision for the extension of the Vermont and Canada Railroad to Highgate line and an issue of stock as an equivalent for it, and also a provision for the payment of ninety-seven thousand dollars of unpaid back rent to the Canada. First they say, "Pay us ninety-seven thousand dollars and that shall be in full of back rent." Second, "Go on and build this branch to Highgate and we will put out our additional stock into your hands for that sum, an act of the Legislature being obtained to legalize it." Third, "Pay us our incidental expenses," that is, the expenses of keeping up the company, I suppose, as they accrue. That is all they agreed to. The rest of it consists of provisions relating to other parties.

Yet, it is said to us, you have become the operators of the Central Railroad. You have stepped out of

your charter-powers, because the Canada has no more right to run the Central Railroad under their charter than to run this court, until it came to pass that they were put into possession of it in default of the payment of rent; and even that right was so far doubtful that the Court were not able to agree in establishing it. It is on this contract and this lease that it is now said you stepped out of your charter-rights and took the field as manager of the Vermont Central Railroad as well as your own road, through agents whom you employ and who were your instruments, making yourself liable for all the debts that were incurred in that capacity; and yet, by the terms of your contract, you were not to have any of the proceeds that were earned except the rent, which you were entitled to anyway. The question on which this case, in my humble judgment, is going to turn, is whether that proposition can be supported; because it will be seen, upon a very brief review of the rest of the case, that if the Vermont and Canada did not become such parties then, they never did.

I cannot add anything to this statement. I should weaken the force of it, as it seems to me, if I undertook to strengthen it by argument. There is a contract; what is the legal effect of it? Is it a contract to step down and out of their corporate condition and to go to running the Central Railroad in violation of their charter (in violation of common-sense so far as they were concerned), or is it not? If it is, then they are liable for the debts of the management. They are liable for the debts of their agent, whether it takes the whole property or not. If it is not, there is an end to the idea that you can charge them with this debt as their debt.

So far from these parties being the occupants in behalf of the Vermont and Canada, they were in as opponents of the Vermont and Canada, which was defeated by them in a struggle for the possession. That is the way they came in. It is a most extraordinary foundation for an agency. The Canada went into court and, among other things, claimed possession of the Central Railroad for arrears; and the Court held that they were not entitled to it. The defendants prevailed, and they held possession of the road in spite of the Vermont and Canada. Therefore, they came in as adversaries of the Vermont and Canada. And they came in as men who, in despite of the Vermont and Canada, had a right to stay as long as they paid rent, and the sole power of interference which the Vermont and Canada had was in order to get their rent.

Now, if the Court please, if I have succeeded in disembarrassing this case of the idea that these written contracts (if you call them contracts) furnish any proof of the allegation that the Canada are the real managers of the Central and liable for the debts of their agents, I respectfully suggest that I have brought it to an end. Because the other alternative, the question whether, if it is not their debt, they have charged their property for its payment, becomes one of very easy solution.

Now, but a few words on that point, for I think it lies within a very narrow compass. What is a "lien"? Or, as my friends from Boston (who are better authority) call it, a "lion"? And there is great propriety in that pronunciation in this case, as it is now going about 'seeking whom it may devour." What is a lien? A lien is a claim upon real estate that you dare not

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attempt to assert in any other words. That is what it is. When you have got a claim upon a man's real estate that you dare not assert in any other language, lest the words you use refute your claim, it is a lien. And when you have expunged from this case, as I said before, about four or five words of its distinctive nomenclature, you have brought this controversy to an end, or rather it becomes like those theological controversies that never come to an end because the terms that the opponents use have no definite meaning; so they palaver against each other to the end of time without producing any effect. And if we could only expunge from this case the terms "lien " and " estoppel," my friends would be dumb for want of language to express their ideas. There is no synonyme. There is no circumlocution. If you do not let them use those terms, you shut them up.

Now, if the term "lien" means anything in respect to real estate, it is a term of comparatively modern origin, and all ideas, in my judgment, are to be received with great suspicion that are incapable of being expressed in the English language. When you have to go to the French-not the old Norman French, which used to be the language of the law, but modern French -to get a word to express an idea, it is quite likely that the idea is just as illegitimate as the word that is used to express it. A "lien" upon real estate, if you are using the term in its strict legal sense, is a title. It may be a conditional title. It may be a defeasible title. It is a title which, if it is not perfect, is capable of ripening into perfection upon the happening of certain contingencies. All this is, of course, elementary. Now, these gentlemen come and say that we are

charged with a mortgage for the debt of this management. Well, that is possible in law; but what is the evidence of it? Where do you find it? Is it in writing? No. Is it by deed or instrument? No. Where is it? Why, it is in the air, as the politicians say victory is just before election. It is in the air, and it comes as one of those miasmatic vapors which arise out of swampy lands and envelop everything. It is not based upon any contract, but they say it is deduced from the circumstances. Well, you can make a contract out of circumstances, perhaps. If you have not got any writing, if this corporation never set its seal to anything, show us what they have done that resulted in a contract in the eye of the law. "Oh, we can't do that; but on the general circumstances of the case a lien arises, and it arises (as I said before) by estoppel." Now, what is an estoppel?-(if the Court will pardon me for standing here as if I was delivering a lecture to a very young class of law-students, who never had heard of these terms before)-what is an estoppel? Well, it may be "of record," or it may be "en pais," where there is no record. An estoppel en pais arises where one has asserted a fact to another with the knowledge that the other is going to act upon that assertion, and then, after he has acted upon it and parted with his property, the first party comes into court and undertakes to deny, as against the other, the truth of that statement. That is what it is, and that is all it is. It may be that the representation takes place by acts; it may be in direct terms; or it may be by conduct equivalent to such terms, which the other party has a right to understand and does understand as such a representation. It is nothing else than that.