W. J. WRIGGLES WORTHEditor and Proprietor.

VOL. VI.

Business Cards.Dt. dT w. averill,

OCCULIST. Will be at Dodgevllle April 20th.andoDce every three month* thereafter. nMtf

D. W. AVERILL, D. D. S.

SPECIALattention given to all hranche* of theprofession. Teeth inerted on Continuous Gum,

Alarantum. A*betu.a well a* allother bases. Willvisit Dodgeville April 20th, and once erery threemonths thereafter. n2St *

REESE & HULKS,A TTORNEYS AND COUNCILLORS, Dodgevllle,

jfV Win. Will practice in all the Courts of thisState.

BUBRALL & CUTLER,

Physicians & SurgeonsOFFICE IN BURRALL’S OLD STORE,

Dodjjfovllo, s s * * Wls.

A. E. SMITH. M. D.,

PHYSICIAN AND SURGEON, Dodgevllle. lowsCouDty, Wiconin. Office in Smith A Hob-

•rts’ Drag Store T<>l *25 tf

COBB & LIKENSATTORNEYS AT LAW.

MINERAL POINT, WIS.,

General Cobb will attend each regular term of

Ceart at Dedgevll'e.,

„ „

Ogle* i L*naha*'t new block. High S/reef. lA-tf

HENDY, THOMAS & CO.,

GENERAL DEALERS IN STAPLE AND FAN-cy dry goodi, groceries, crockery, hardware,

reedy-made clothing, jankee notions, etc, etc. Attheir stere in Dodger Hie. they are at all times pre-pared te attend to the wishes of customer*. 4-ly

SOLDIERS’ CLAIM AGENCY.•ODGSVILI.E, -

... WIS.Collects back pay for discharged Soldier*. BountyMoan and back pay for heirs of deceased Soldiei e.

Psnsioa certificates procured,Bounty claim* eettl idprices establised by Law.9

mlrStf SAMUEL W. REESE, Att’y

MABO;NICrDODGEVILLE LODGE, No. 119 F. A A. M. hold

their Regular Communications on the Ist andSd Fridays of each month.

RICHARD PRIDEAUX, W. M.Otriu.s Strong, Sec’v.

Richards Bro., & Charles,

BUILDERS & PAINTERS,Mineral Point & Dodgevlile.

ARB NOW PREPAREDTO TAKF, CONTRACTSfor building, painting, Ac., Ac. Work in the

above line, including all kinds ot painting, glaring,graining ho ne buildings, Ac., will he attended to

promptly, all work being executed in the very bestmanuer, and fully warranted. n23tf

THAYER BROTHERS,OKNIttAL ENGHA VING ES TA EL ISH 3f ENT,

B. IV. Corner, Broadway tt Main 19s„P O Drawer, 44, Aurora, 111.

deals aud presses. Steel Stamps, Door Plates andNumbers. Gold and Silver B.idjes. Ribbon Cancelling• tamps, Initial and Monogram Presses. InsurancePlate* Embossed ltrass Ornaments. BurningBrands,• reel Dies, Stencil Toils and Stock, Baggage Checks.Hand Stamps. Ac.. Ac. G.ddjnnd Silver Plating inevery variety. Gold Pens repaired aud reportedOrders welicifed from a distance. n.lyl

Edward Cronin, A. M., M. D.( Graduate of the University of Pennsylva-

nia in Class of 1842, and of JeffersonMedical College in Class of 1544.

Student of the late Prof.John K. Mitchell, of

Philadelphia.)

\FTKR 25 years of practice he feels competent toattend toall cases that may come under his care

is Mineral Point and vicinity He would Inform thepublic that he has permanently located in that city.Office at bit residence behind the United States Hotel,ust above Cut. Jones’ residence. v6:ltf

GET THE GENUINE ARTICLE.

All should Insure—duty suggest* It, cheapness•ommeuds It, wt ile the advantages arising thsrs-frens r# every day manifest.

PHCENIXINSURANCE COMPANY,

HARTFORD, < *U.

A mercantile system of resident agents in all theprinciple as low n* genuine insurance•an be -Forded at—a prompt response in par fundsto all honest losses, aud faithful devotion to alegltlmate business. n 9 vol 8 tf

HAMI’EL W. RKESE, Resident Agent.

Milwaukee & Prairie du ChienKAIL ROAD TIM® TABLK.

THii time Üble takii effect on Sunday, Dec. 29th1167, at 11 o’clock a. m.

TRAINS GOING ®AST.Prningir panes Avoca 9- 05 *• m -Paeeenger paasea Helena 10.10 a.mPaMenger pawei Arena t. 10.30a. m .Paeeenger paeece Avoca 10:4o p. rn.Paeeeuger paaaea Helena 11*45 p. m,Paeeenger paeeee Arena 12:05 a. m.

TRAINS GOING WEST.Paeeenger paeeee Ar-na 6:32 p.m.Paeeenger paeeee Helena 6:55 p. m.Paeeenger paeeee Avoca S:OS p.mPaeeenger paeeee Arena. 3.06 a. m.Paeeenger paeeee Helena 3.28 a. mPaeeenger paaeceAroca 4:20 m*

Mineral Point Rail Road.Thie time table take, cfleet on Monday, November

Mtk, 1866,TRAI\B GOING SOUTH.

Leave Miaeral Point at 2:30 p. m.TRAfNS GOIXQ NORTH.

Leave Warren at .6:30 p. mArrive at Mineral Point at 8:30 p. m

Gxosat W. Cnee, Receiver.

NOTICE

To teachers & district clerksNotire i* hereby RiTrn, Hint the Comity Superin-

tendent of School* for lowa Comity, will hold publicExamination* for licensing teachers, at the followingplace* and times:

At Arena, on Fridayand Saturday, April 10th andHth, l*6ts.

At podgerillc, on Monday and Tuesday, April 13thad liib.

At Mineral Point, on Wednesday and Thursday,April Isth and 16th.

At the School House at Cross Plains, near CobbPoat Office, in District No. 0, Highland, ou Friday*pd Saturday, April 17th and IStii.

At jysoaa, ou Monday and Tuesday. April 20th aadHit.

Tearlier* of experience, who consider themselvesqualified, are requested to apply for a first or secondgrade certificate. Tlie Examinations will commenceat 10 o'clock a. m.on thefirst day in each place. Eachapplicant mast be provided with pen, ink, and fools-cap paper ; each a separate inkstand,

Samuel pauks, Cos. pup't.Avoea, Feb. 20.1568. n2ftw7

Closing Out!JEWELBY BELOW COST

AT

SAMUEL HENDERSON’S.

Ha having determined to elre out business, offersbia entire stock of JewbUy

10 Per Gent. Below Cost!He haa justreceived a large supply of Jewelry aette.

ao those wishing to bay will do well to call imroedl-at*lv and get the flret choice. Come one; conso all.

Hodgevilla, Oct. 26.1M7.—ntf

THE CHRONICLE.DOD GEVILLE,

FRIDAY, APRIL 17, 1868.The Railrord Mortgage Suit.

The Board of Supervisors of the County oflowa, plaintiff,

AGAINSTThe Mineral Point Rail Road Company,

W. E. Smith, Treasurer of the State ofWisconsin, et. al. defendants.

The Court finds the following facts inthis case:

On the 17th of April, 1862, theLegislaturc passed an act incorporating the Min-eral Point Railroad Company, declaringsaid act to be a public law.

Under this charter, on the 22d of Octo-ber, 1852, the company was organized, thedirectors choosing M. M. Strong for presi-dent, Francis Vivian, treasurer, and Tho’sS. Allen Secretary.

The last meeting ever held by this com-pany was on the sth of October, 1861,when Luther Beecher was elected presi-dent. Francis Vivian had been electedtreasurer in 1858, and it does not appearthat he had resigned his office.

It does not appear that the company re-alized any large amount of stock subscrip-tions, but undertook to raise funds to con-struct a railroad from Mineral Point toWarren in Illinois, a distance a fractionless than 32 miles, by issuing its ownbonds, and by certain arrangements withthe county and towns through which therailroad might run. The transaction withlowa county is the basis of the presentaction. An act of the legislature waspassed, approved March 23, .’853, (see ch.117 of the private laws of that year,) en-titled “an act to authorize the counties andtowns through which the Mineral Pointrailroad passes, to aid in its construction.”The first and second sections of that actreads as follows:

Suction i. It shall be lawful for anycounty through any portion of which anypart of the Mineral Point railroad shallrun, or any town or incorporated city orvillage in such county, to issue and deliverto said company its bonds, payable to suchperson or persons, trustees or corporation,or to said company, at such time, for suchsum or sums, at such rate of interest,trans-ferable by general or special endorsement,or by delivery, and in such manner asmay be agreed upon by and between thedirectors of said railroad company, and theproper officers of such county, town, in-corporate city or village,as hereinafter pro-vided ; and to receive in exchange for suchbonds, the stock or bonds ofsaid railroadcompany, in such manr-r as shall be agreedupon by and between the directors of saidradroad company, and the proper officersofsuch county, town, incorporated city, orvillage, as hereinafter provided ; but nosuch bonds shall be issued or delivered tosaid company, by any such county, town,incorporated city or village, unless a ma-jority of the legal voters of such county,town, incorporated city or village, vot-ing on the question, shall first hare votedin favor such issue in the manner herein-after prescribed.

Section 2. It shall bo lawful for theMine.al Point railroad corupany to issueits btinds payable to the treasurer of thestate, and his successors in office,or to bear-er, in sums of one thousand dollars each,which shall not exceed in the aggregateten thousand dollars per mileof the wholeof the surveyed line of the said railroad,and bearing an interest not exceeding therate of ten per cent, per annum, payableat such place and at such time, not ex-ceeding twenty years from their date, assaid company shall elect, with a provisionmaking them transferable by general orspecial endorsement, or by delivery,and allsuch bonds which shall be delivered toany such county, town, incorporated city orvillage, in exchange as aforesaid, shall con-tain a stipulation guaranteeing the pay-ment of the principal and interest, whichshall become due and payable on the bondsofsaid county, town, incorporated city orvillage, received in exchange therefor bysaid company; and to secure the navmentof such bonds and interest, it shall also belawful for the said company to execute anddeliver to the treasurer of the state andhis successes in office, in trust for theuse and benefit of the holders of any andall of said bonds, a deed of conveyance, tobe called a second mortgage ofall the pres-ent and future to be acquired property ofsaid company, in the whole of said rail-road, (including the right ofway, and landoccupied by said road, together with thesuperstruction and track thereon, and allrails and other materials used thereon,bridges, viaducts, culverts, fences, equip-ments, depots, grounds and buildingsthereon, engines, tenders, cars, tools, ma-terials, machinery, fixtures, and all otherpersonal property;) which said secondmortgage shall be taken, deemed and heldto be subject and subsidiary to anotherde.d of conveyance to be called a firstmortgage of all the aforesaid property;which said first mortgage whether it shallhave been executed prior or subsequent tosaid second mortgage, in point of timeshall constitute the first lien upon saidrailroad, and all of the aforesaid property;but said first mortgage shall not be issuedto secure the payment of bonds to a great-er amount than ten thousand dollars permile, of the whole length of said road,nor bearing a rate of interest greater thanat the rate of ten per centum per annum ;

and whenever such 2d mortgage shall bedelivered to the treasurer of the state, andrecorded in the office of the secretary ofstate, it shall constitute a perfect and inde-feasible lien upon said railroad, and uponall the property described in it, subjectonly to the prior lien created by said firstmortgage; (provided that the provisionsof this act shall not apply to Lafayettecounty, or any town or incorporated vil-lage Therein; and provided also, that theprovisions of this act shall not apply tothe county of Green, or to any town there-in.)

On the 19th of May 1853 the railroadcompany proposed to execute and deliver150 of its bonds of SI,OOO each, to thecounty of lowa, on condition that thecounty of lowa should execute and deliverto the railroad company the same numberf the bonds of the county of lowa eachof like amount. The electors of lowa Cos.voted on the proposition in the mannerprovided in the act of March 23d, 1853,and adopted it. Etch class of bonds were

DEVOTED TO THE INTERESTS OE THE PEOPLE,

DODGEVILLE, "WIS., FRIDAY, APRIL 17, 1868.York on the 18th of July, 1868, with in-terest at 8 per cent, payable semi-annuallyon the first days of July and January ofeach year. These bonds purported ontheir face to secure to the holder the bene-fit of a sinking fund arising from an in-come guarantee to the company by otherinterested railroad corporations, and eachof them set forth that it was one of thebonds secured by the mortgage to the•state treasurer, and this officer attachedhis certificate to this effect upon the bond.

On the 23d July 1856, the railroad com-pany executed 140 other bonds of SSOOeach, to Charles Kuehn, treasurer Ac., andhis successors in office, and not differingfrom the foregoing except in the guaranteeof a sinking fund. They became due atthe same time with the same semi-annualinterest,and purported to be bonds securedby the mortgage to Jansen, and the statetreasurer so certified on each of them.These bonds, called the “Kuehn bonds”were put in circulation by the company,and the present holders are unknown.

On the Ist day of January in the year1856, the Mineral Point railroad companyexecuted to D. K. Martin-and L.. D. Co-man another mortgage on its entire roadand all its property capable of being con-veyed by such an instrument; the instru-ment reciting that the company was en-gaged in constructing its road, and hadresolved to raise money for that purposeby issuing and delivering 640 bond.'* ofSSOO each, giving the language of ihesame, each bond reciting it was issued inconformity with a resolution of the direc-tors of the company, on the sth of Septem-ber, 1855, authorizing bonds to be issuedto an amount not exceeding $320,000;that the holder was entitled to the benefitof the “guarantee income.” The trustees,Cornyn & Martin certified on each bondthat it was secured by this mortgage tothem, and that the bonds secured by itwere not to exceed $320,000.

In describing the railroad, among otherthings the mortgage states the length ofthe road to be 32$ miles in length. Inother respects, the Martin & Corayn mort-gage does not differ from the others beforeset forth. All the bonds intended by themoitgage were issued and put in circula-tion by the company. There is alsoanother mortgage given for further assur-

ance to Cornyn & Martin, to cover propertyacquired by the company, subsequent tothe first mortgage to them,—the lattercov-enanting to execute such lurther assur-ance.

On the 9th of April, 1859, Martin &

Cornyn filed their bill in the district courtof the United States sitting at Milwaukee,for the foreclosure of their mortgages,mak-ing the Mineral Point railroad company,Samuel D. Hastings, then treasurer of thestate of Wisconsin and trustee on behalfof the bond holders under the mortgageexecuted to Edward Jansen, John M. Keepand ‘Thomas McFarland and George L.Schuyler, who was a citizen of New \ ork,parties to (he bill, defendants.

The bill recites the special act of March23d, 1853,and sets forth the Jansen mort-gage, and declares the said mortgage wasexecuted in acccordance with that act. Itsets forth the substance of the bonds givenby the company to lowa county, and theguarantee contained in such bonds in fa-vor of the county. It also sets forth theissue of the “Kouhn bonds." It showsand alleges the inferiority of the Jansenbond and mortgage to a mortgage thereaf-ter to be issued by’ the railroad companyfor a sum not to exceed SIO,OOO per mileof the whole length of the road. It alsosets forth the Schuyler mortgage and bondissued under it. It admits the delivery ofthe mortgage to Schuyler, but denies thatany bonds were ever negotiated under it.It alleges that Keep fraudulently got pos-session of $15,000 of these bonds, butprays that they may be delivered up to becancelled; that at the time of executingthe Jansen mortgage, it was understoodby all the parties that the company shouldhave full power to create a debt whichshould be a superior lien to the bonds se-cured thereby. The railroad being 35miles in length, and the debt having pref-erence, amounting to $320,000, and thatthe trust deed to Jansen and the debtthereby secured is subject to the mort-gage executed to the other plaintiffs Comvn& Martin, and the debt thereby intendedto be secured and that the Comyn & Mar-tin mortgage ought to have preference andpriority over the Jansen mortgage, and allliens on the Mineral Point railroad.

The Hill of Comyn & Martin asked forsuch relief as should be agreeable to equityanil good conscience.

The subpoena or process requiring ap-pearance, called in the code a summons,was served on Samuel D. Hastings, treasurer of the state of Wisconsin, by deliver-ing to him personally a copy of the subpoenaon the 11th of April, 1859 as appears bythe marshal’s return. It was also servedon John M. Keep. It was not served onGeo. L. Schuyler, nor did he appear in thesuit, nor was there any proceedings bypublication, or otherwise to bring him in-to court. On the 18th of April, 1859, theMineral Point railroad company caused itsappearance to be entered, but the companymade no answer. It is not necessary tospeak of the defendant McFarland, nor ofthe service upon or appealance or non-ap-pearance of any of the defendants exceptSamuel D. Hastings, the state treasurer,the Mineral Point railroad company, andGeorge L. Schuyler, the latter at the timeand since the commencement of the Mar-tin & Comyn suit residing in the state ofNew York,and never having resided in thestate of Wisconsin. Mr. Hastings, soonafter the service by letter notified theBoard of Supervisors of the county oflowa ofthe action and that the board mightuse his name in defending tie suit if theythought proper. On the 13th of February1861 at a regular term of the district courtof the United States, his honor, Judge A.G. Miller presiding, “it wes by the saidcourt ordered and decreed that said bill ofcomplaint be and the same was therebytaken as confessed as to the defendants,the Mineral Point railroad company, Snm’lD. Hastings treasurer of the state of W is-consin, and John M. Keep for their hav-ing failed to plead, answer or demur to thesame, and then and chore in said court thecause commenced by exhibiting of thecomplaint, and was heard on said bill ofcomplaint taken as confessed, and the rec-ord and papers ofsaid cause were by orderof said court referred to a master to com-pute, ascertain and report the amount duethe said complainants,” The matter was

to become due and payable at the Manhat-tan bank in the city of New York on theIst of July, 18C8, to bear interest at 8 percent, payable “semi-annually, on the firstdays ef July and January of each year, tobe transferable by endorsement or deliv-ery. The railroad company bonds were tobe made payable to the treasurer of thestate of Wisconsin and his successors inoffice ; thecounty bonds to be made paya-ble to the treasurer of the Mineral Pointrailroad company and his successors inoffice. Each railroad bond was to containa stipulation guaranteeing the payment ofany principal and interest which shouldbecome dueand payable on any of the lowacounty bonds which the county by wayof exchange had delivered to the company.The company bonds were to be part of anissue of bonds whoso amount in the aggre-gate including the bonds issued to lowacounty should not exceed SIO,OOO per mileon the whole length of the railroad, andwere to be secured by what is called In thespecial act before quoted, “the secondmortgage.”

Both the company and county exe-cuted and delivered to each other inexchange, bonds of the above description,respectively. The company bonds boredate on the 26th of July, 1853, those ofthe county on the first day of that month.To secure the payment of the 150rail roadbonds received by the county on the 27thof July, 1853, the Mineral Point railroadcompany executed a mortgage to Edward11. Jansen, treasurer of the state ofWisconsin, and his successors in office, recitingthe powers granted to the company by thespecial act above referred to ; that in pur-suance thereof the exchange to the amountof one hundred and fifty bonds of onethousand dollars each had already beeneffected, and to secure the payment of thecompany bonds delivered to lowa county,the company executed and delivered itsmortgage to' Edward H. Jansen, treasurerof the slate of Wisconsin, upon its entirerailroad and appurtenances and fixturesbelonging thereto, in trust for the benefitof the holders of said company bonds orany of them. The mortgage recited alsothat the bonds so secured were part of anissue of bonds of a “similar description”thereafter to he executed, the whole ofwhich should not exceed in the aggregatethe sum of ten thousand dollars per mileon each mile of the railroad. It also setforth that it was to he taken and deemedto be a second mortgage subsequent andsubsidiary to a mortgage thereafter to beexecuted by the company to any person itmight select as trustee, and which mort-gage so executed though subsequent indate should bo the prior lien and incum-brance, and payable in preference to themortgage to the state treasurer. This pre-ferred mortgage, like the non-preferred,wasto be for an amount not to exceed SIO,OOOper mile. It does not, however, set forththe length of the railroad. The mortgageto the state treasurer was duly recorded inthe proper office.

None of the 150 bonds issued by therailroad company an ! payable to the statetreasurer and his successors in office, tho’delivered by the railroad company to theproper officers of the county of lowa, wereever paid or taken up by said company,nor has the company ever paid any interestthereon. All of said bonds are now inthe possession of the county except 149 ofthem, which are lost without any trace leftto show whether they now exist or notThat they are not in the hands of anybona fide holder is a fair conclusion fromtheir supposed worthlessness.

Neither has the county ever paid any-thing on its bonds issued and made paya-ble to th“ treasurer of the railroad com-pany. These bonds are widely scattered,and Clark Dodge & Company in the dis-trict court of the United States obtainedjudgment against the county on some overdue coupons attached to said bonds, orsome of them. This judgment, on appeal,was affirmed by the supreme court of theUnited States.

Again on the 2d of January, 1854, theMineral Point railroad company executeda second mortgage in point of time toGeorge .L. Schuyler and his successors, intrust, reciting that the company in pursu-ance of the act of its incorporation, andother laws affecting it, was ei.gaged in con-structing a railroad from Mineral Point tothe village of Warren in Illinois, and inorder to raise money by sale of its bonds,had on that day executed to George L.Schuyler or holder, five hundred bonds ofSI,OOO each, payable in the year 1874, onthe Ist day of January, bearing interestpayable semi-annually, at the rate of 7per cent, per annum. The mortgage em-braced the entire railroad, and all its realproperty and fixtures, and whatever mightbe transferred by such an instrument, theconveyed property to be held in trust bySchuyler for the benefit of the bond hold-ers secured by the mortgage.

This mortgage nowhere refers to thespecial act authorizing a superior lien tobe created to that of the mortgage executedto the state treasurer. There was no certifieate on the bonds by the trustees as re-cited in the mortgage to the effect thatthe company had executed to him, Schuy-ler, a mortgage to secure the payment ofthese bonds.

The company by resolution, authorizedone of its officers to subs.itutc the Schuy-ler bonds for the county bonds, and sur-render the latter to the county. The coun-ty delivering up the company bonds securedby the Jansen mortgage. In case thecounty had parted with these bonds, theresolution limited the amount of bonds tobe issued under the Schuyler mortgage, to$310,000. 11 appears from the proceedingsand language used by the company in ref-erence to the Schuyler bonds and mort-gage, that they should be the first lien onthe railroad. About 50,000 of these bondsgot into circulation, and were used by thetrustee and his firm as security for loans,and in raising money. Schuyler failed in1854, and having not only lost his wealthbut his character for integrity and hones-ty, the company and its agents determinedto take up these bonds, and substitutetherefor bonds under the Comyn & Martinmortgage, which will be set forth directly.The company succeeded in taking themup and calling them in,and thus the Schuy-ler mortgage became virtually extinct.

On the 17th of April, 1856, the com-pany executed 200 other bonds in sums ofSSOO each, bearing date, 1856,payable to Charles Kuehn treasurer of thestate and his success irs in office, payableat the Manhatten Bank in the city of New

accordingly referred by the court to Ed-ward Kurtz, a master in chancery, andon the 18th of February, 1861, the mastermade his computation, and filed his reportand on tne same day the final decree ofsale and foreclosure was made and enrolledin the United States district court. Thedecree sets forth the title of the cause, andrecites that the bill of complaint was takenas confessed against the defendants, theMineral Point railroad company, SamuelD. Hastings, treasurer of the state of Wis-consin, and John M. Keep; that the re-port of the master wherein “the sum of$451,200 appears to be due to the com-plainant for principal and interest, be “andis hereby confirmed.” It orders all themortgaged premises described in the billof complaint to be sold atpublic auction,and the money arising from such sale, orso much as might be necessary to be paidover to the complainants to saatisfv theirtheir debt and costs, unless the MineralPoint railroad company should pay suchdebt and costs before such sale. The decree requires the sale to be made atpublic auction at the post office in the cityof Milwaukee, gives direction to the mar-shal as to the proper notices and day ofsale, and directs him to make a deed tothe purchaser on the confirmation of hisreport of the sale, and to bring the pro-ceeds thereof into court, to adide its fur-ther order; that if the mortgaged premiseswere purchased by any one in trust, forthe no>ders of the Comyn & Martin bondsthat such trustee purchaser might pay hisbid in said bonds, less the costs of the de-cree.

The clause divesting the mortgagor, theMineral Point railroad company, and touch-ing other parties to the suit, reads as fol-low’s : “And it is further ordered adjudgedand decreed that the defendants, the Mineral Point railroad company, Samuel D.Hastings Treasurer of the State of Wiscon-sin, and John M. Keep, and all personsclaiming or to claim from or under themor either of them, since the commencementof this cause, be forever barred and fore-closed of and from all equity or equities ofredemption or claim of in and to said pre-mises so mortgaged property franchises,&c., &c.” No appeal was ever taken fromthe decree by any party.

In the subpoena served on S. D. Hast-ings there is no reference to his fiduciarycharacter “as trustee for the use and bene-fit of the holders of the bonds of the Min-eral Point railroad company, and securedby the mortgage to Edward H. Jan sen,”but the defendant S. D. Hastings, is de-scribed in the subpoena as “S. D. Hastingstreasurer of the State of Wijconsin.” Hisfiduciary character is fully set fourth inthe bill of complaint.

The mortgaged premises, that is theMineral Point railroad, and all appurtenan-ces and fixtures thereto belonging, as de-scribed in the bill of complaint of Comyn& Martin, were sold by the Marshal in pur-auance of said decree on the 6th November1861, and James C Carter became the pur-chaser for thesum of $75,000. The Mar-shal duly executed his deed, conveyingthe railroad and appurtenances to Carterthe purchaser, and the deed is duly ac-knowledged, and recorded in the office ofthe Secretary of State, and in the office ofRegister of Deeds for the county of lowa.

James C.Carter the purchaser at the mar-shal’s sale,and grantee in the Marshal’s deedby deed of conveyance, duly acknowledgedand recorded as required by law, transfer-ed, sold, and conveyed to Asahe! Finch,Samuel P. Holmes, Luther Beecher, HenryKoop, and Geo. W. Cobb and their heirsand assigns an undivided 5-1,000 partof the railroad and appurtenances ofwhich he said Carter became seized andpossessed by virtue of the marshal’s saleand conveyance to him the said Carter.This conveyance by Carter to Finch,Holmes, Beecher and others, was to enablethem in conjunction with said Carter, toform anew association or company undera general law, which is found in the ses-sion laws of 1856, page 213, also in thepresent revised statutes chap. 79, section33. On the 12th of November, 1861, thesaid Caiter. Finch, Holmes, Beecher, Koopand Cobb did enter into written articles ofassociation in conformity with said lawand organized anew corporation called theMineral Point railroad. The articles of association are recorded as required by stat-ute, in the office of the Secretary of State.The record bears date the 18th of Novem-ber, 1861.

On the same day Carter conveyed to thenew organization, “The Mineral Point rail-road,” all his right, title and interest inand to said road, its appurtenances andfixtures, which final conveyance is dulyrecorded. The new corporation went into jimmediate and exclusive possession of the !entire road and all its rolling stock andfixtures and appurtenances of every de-scription, and has been in the- exclusiveuse and possession of the sr.mc ever since.The road was put in.runniug order in 1857and neither the sale of the county, norSchuyler, nor the Martin & Comyn bondsproduced more than a fraction of whatsome person or persons must have advancedto purchase materials, pay for the labor,equip the road with rolling stock and putit in rnnning order. It was sold for $75,-000, and there is no evidence to show thatthe railroad, as a labor performing ma-chine, was worth more than that. Itsmaterials were worth more,but the compa-ny could not disintegrate it and sell itsdebris without legislative consent.

On the 3d day of September, 1866, theboard of supervisors of lowa county com-menced this action against the MineralPoint railroad company, Wm. E. Smith,treasurer of the state of Wisconsin, GeorgeL. Schuyler, David R. Martin, Lucien D.Coman, James C. Carter, Ashael Finch,Samuel P. Holmes, Henry Koop, GeorgeW. Cobb, Luther Beecher and the MineralPoint railroad. This action was commencedin the lowa county circuit court, the pur-pose of which is to subject the railroad andits appurtenances to a foreclosure sale un-der the Jansen mortgage, the county beingthe owner of the 150 bonds issued by therailroad company and shown on the factof the mortgage itself to have been deliv-ered by the company to the county in ex-change for a like number and amount ofbonds issued by the county and deliveredto the company. On the trial of this actionin the circuit court the facts hitherto andhereafter set forth appeared in proof.

The complaint of the county of lowasetsout the mortgage to Edward Jansen andall its conditions and bonds issued underit by the company aDd delivered to the

county, the execution of the like numberand amount ofcounty bonds, and their de-livery by way of exchange to the company,the execution and delivery by the companyof what are called the Kuehn bonds to theamount of $170,000, which the complaintalledges are in no way secured by vhe Jan-sen mortgage, and that they were issuedand put in circulation in fraud ef thecoun-ty of lowa. It sets forth the Schuylermortgage and the issue of bonds under itto the number of 1,000 of SSOO each, apart of which is alleged to have been sold,hypothecated and used by tho trustee,Schuyler. It affirms that this Schuylermortgage was entitled to be regarded andwas in law what is called the “first mort-gage” in the special act of 1853 abovequoted, that the county of lowa (being theowner of the 150 bonds of the company se-cured by the Jansen mortgage) is entitledto preference over the holders of all bondssecured by any mortgage subsequent indate to the Jansen mortgage, except thebond holders under the Schuyler mortgagewhich the county of lowa in its complaintadmits and affiirms to be “the first mort-gage” authorized by the act of March1853, and which {the Jansen mortgage,likewise authorized by that act, declaredin express language might thereafter baissued by the company, and that but onemortgage subsequent in date to the Jan-sen mortgage having preference over *itcould be issued under and according tosaid special act, that all other subsequentmortgages must be referred to and receivetheir efficacy from the general power ofthe company to mortgage its property toraise money for theconstruction of its roadgranted to the company in its amendedcharter approved March 7, 1853. And thecomplaint further alleges that the Comyn& Martin mortgage being subsequent indate to the Jansen mortgage, under whichthe plaintiff claims is subordinate thereto,and that the lien, if any, created in favorof bond holders claiming under the Martin& Comyn mortgage is subject to the lienof the county, the holder of the 150 bondssecured by the Jansen mortgage.

The complaint further alleges that theSchuyler mortgage has been fully paid offand cancelled by the company, and there-by the Jansen mortgage became the firstand paramount lien, and prays for a sale ofthe mortgaged premises and general relief.

The defendants, (except the MineralPoint railroad company) were duly servedwith a copy of the summons, and exceptGeorge R. Schuyler, who being a non-resi-dent, was served by publication. The de-fendants, except the Mineral Point railroadcompany and George R. Schuyler, who didnot answer, put in a joint answer. Theypleaded the judgment of the district courtof the United States in bar to the presentaction, which judgment I have found as afact in 'this case. Also the sale by themarshal and bis deed to Carter, and Car-ter’s deed of an undivided 6-1000 ofthe railroad to Ashael Finch and others,the formation of anew organization, andthe deed from Carter to “the Mineral Pointrailroad,” that said new organization hadbeen in possession of the road and occupy-ing and usng it ever since. They make aclaim for improvements made on the roadafter the new orgrnization took possessionof it. They deny the existence of the Min-eral Point railroad company ; that it ceasedto exist in Nov. 1861, except for the purpose of suing and being sued, and that inNov. 1864 its corporate existence ceasedfor all purposes. They insist that Schuy-ler never accepted the trust under themortgage given to him by the company ;

that the company never authorized its is-sue, and that the company never disposedof any bonds under that mortgage; thatthe mortgage never was valid ; that themortgage to Comyn & Martin was in fact

and law the first mortgage authorized bythe special act approved March 23, 1853.

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