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the law having been established as they claim it to be, such an application would be irresistible.
The debts which they want to have paid are not losses made in running the property they are trustees of. It is money that was lost in outside speculations and enterprises, leases of other railroads. The Court will see that the Vermont and Canada are contending for all they have. All they ever had was their railroad, leased as it was, and their security by way of mortgage on the Central for their rent. When, therefore, you take not only their lien upon the Central for their past rent, but their road itself, the corpus, as I believe they call it (and I suppose that means corpse), you have taken all they have. There is not enough left of the Vermont and Canada to pay for trying this case. They may dissolve as soon as they please. They have nothing to remain together for any longer.
Now, coming to the merits, on what precise legal ground can this relief that they ask for be sustained? They ask you to take the Canada Railroad and to sell or dispose of it to pay this debt.
We owned this road in 1864, when this compromise arrangement was entered into. It was our property then, absolute and unencumbered. We possessed a lien which the Supreme Court had declared to be a valid and effectual one on the Central for the payment of the rent on our road. We had it then. Now, when and how did it come to pass that this property is charged with the payment of this vast subsequent debt? Well, you look naturally at the bill, the supplemental bill, or original bill, or whatever it is, that is filed in this case, to find out what the orators claim. You may peruse that in vain.
The time was when a bill in chancery, just as much as a declaration at law, had not only to set forth the facts, but to base upon these facts some definite, distinct legal claim which could be appreciated and passed upon. This bill is framed by giving a sort of sketch of the business from beginning to end and making all these documents a part of the bill. Then they say to the Court, like a countryman bringing in his account for settlement, “If there is anything coming to us we want it.” They take care not to state in their bill the ground, or the precise transaction out of which the right is claimed to have arisen to dispose of the Canada Railroad for the payment of this debt. You get no light, therefore, from that as to the ground on which this is to be placed.
Then let us take the facts and see what we can find out. By no law known in this country can a Court of Equity, or any other Court, be called upon in any sort of proceeding to dispose of my property for the payment of a debt but upon one of these two groundseither it is my debt to pay, or else I have voluntarily subjected my property to encumbrance to pay another man's debt, whereby I have virtually placed myself in the position of a surety as between him and me.
Now, I have perused very carefully the brief of my friend to see if we should get any light from that (we did not get any from his bill) as to the precise legal status of this claim of theirs; and I have perused it in vain. You may recall my other friend's argument, and you won't find it there, because he puts this case altogether on his associate. He says, “I claim what my associate claims in his brief, and if your honors are not satisfied he will satisfy you when he comes to argue the case at the close. I have discharged my duty.” And when I say to him, “On what ground do you claim this title to our property ?” why, he says, “Such a question implies a complete misunderstanding of the case. It stands upon the ground of estoppel.” Estoppel! A universal estoppel; an estoppel forever, “after the order of Melchizedek," that had no beginning and never will have any end. That is the ground of his title.
If my learned friends were so unfortunate in their intellectual qualifications that this was the best they could do, it would not be kindly or courteous to reproach them with their infirmities. But everybody knows that no two gentlemen anywhere are more capable of a clear and exact appreciation of a legal proposition, or more capable of stating it, than they are. It is because they thought it wiser to come and empty this vast rag-bag into court, and then to say to your honors, as a crazy man who once appealed to my brother Lyman, and emptied a carpet-bag full of miscellaneous papers at his feet, said, “A lawyer that cannot make a case out of that must be a fool."
The whole case is made out of words without definition; of terms that have no application. Define this phraseology and the case disappears. Exclude it and the case can no longer be stated. “Lien!" “Estoppel!” “Equitable estoppel!" "Assent!" "Acquiescence!" These are the words this case is made up of. But when I stop my friends and say, "One word at a time - Lien! What do you mean by a lien?" "Oh, lien-why, a lien-is an estoppel." "Well, now, what exactly is an estoppel?” “Estoppel! why, everybody knows what an estoppel is; an estoppel—why, it constitutes a lien and arises out of an assent.” “Well, what is an assent?” “Oh, an assent, why it is acquiescence.” “Well, what is acquiescence?" "Why, acquiesence is the sort of an assent out of which grows an equitable estoppel.
Let me then inquire briefly-for this in my apprehension is the question on which the case will turnis this the debt or is it not the debt of the Vermont and Canada Railroad Company?
A man may become liable for a debt in three different ways.
It may be a debt which he himself directly contracts by his own dealing with the creditor. It may be a debt which he contracts through his authorized agent, and which becomes his debt whether the creditor who deals with the agent knows the principal or not. Or it may be his debt when he has held out to the world some one as being his agent, although not his agent in point of fact, so that a person has dealt with the agent on the credit of the assumed and reputed principal. Well, that the Vermont and Canada did not directly in their own corporate capacity borrow this money is conceded. Nobody claims that. If they are liable for it, then it is because these managers were their agents, authorized to make them directly liable in the first place. Now, if that was the case, if your honors please, these creditors might bring an action at law. A man who had sold a hundred cords of wood to this management might pass by them and sue the Vermont and Canada.
And, therefore, until you find a state of facts that would justify you, if trying an action at law brought by such a creditor, in rendering judgment against the Vermont and Canada, you cannot say this is their debt contracted through their agent. That is the question that is to be decided upon the construction of this compromise decree.
Another thing before we leave this question. If the Vermont and Canada are principals, or one of the principals, in such an enterprise as that, in the management of a railroad to make money, to whom do the profits, if there had been profits, belong? Is there anybody here who supposes that upon these papers the Vermont and Canada would come in for a share of that money after being paid their rent? The compromise decree, as they call it, provides in terms to whom it belongs, and that is the old Vermont Central Railroad Company, who are the owners of this property underneath all its mortgages, and to whom all the profits and benefits belong after the mortgages are discharged. Now, it is perfectly clear that the Vermont and Canada cannot be charged as principals in this debt by being the principals in the agency by which the enterprise was conducted, unless they are the proprietors of the profits, if any are made.
I shall not discuss the question whether that is a decree or not, in the judicial sense. I have discussed that question once before this Court, and it has been decided and completely set at rest.
But suppose it is a binding contract; let us consider it as a contract made by the Vermont and Canada Railroad, and all its terms and stipulations as binding upon that company, let the consequences be what they may. Is it such a contract as makes these “trustees” the agents of the Canada Railroad as the principal, to administer this property? Why, stop for one moment and regard the circumstances. Here was the Canada