Paine v. Lake Erie & Louisville Railroad

Jurisdiction.—Title to Meal Estate.—Where the main object of a complaint in the court of common pleas is to have satisfaction entered of a mortgage of real estate, there is no error in overruling a motion made by the defendant before answer to transfer the cause to the circuit court on the ground that the title to real estate is in issue. Railroad.— Consolidated Companies.—A railroad company formed by the consolidation of two companies succeeds to all the rights of each of the corporations of which it is composed, and may compromise and settle a claim against one of them, and sustain an action to enforce the settlement. Same.—Directors.—Fraud.—Persons who are directors of a railroad company cannot acquire such an interest in the profits of a contract for the construction of the road as to give them a standing in a court of equity to interpose an objection to the consummation of a compromise between the railroad company and its contractor. Same.—Stockholders.—An arrangement made by persons who are directors of a railroad company with a contractor, by which such persons are to share in the profits of the contract for the construction of the road, can only he confirmed by the stockholders, and not by the directors of whom the guilty persons form a part. Pleading.—Answer.—Costs.—In a suit to enforce the entering of satisfaction of a mortgage, a party defendant against whom no relief is sought, but who is made a defendant merely to answer as to his pretended interest in the subject-matter of the suit, must file an affirmative answer if relief is sought by him. The general denial by such a party puts the plaintiff to such proof as will place such defendant in the wrong. He may save himself from costs by disclaiming any interest. Depositions.—Suppression of.—It is a sufficient reason for suppressing portions of a deposition, that such portions only tend to prove matters set up in a special answer and cross complaint to which a demurrer has properly been sustained. Evidence.—Statute Book of Another State.—A hook purporting to be Swan • and Critehfield’s edition of the statutes of Ohio was offered and, over objection, admitted in evidence. By the title-pago it appeared that it was “published by the State of Ohio, and distributed to its officers, under the act of the General Assembly.” Held, that there was no error. Same.—Statute.—Corporation.—Pleading.—Where a statute of another state constitutes a part of the organization of a corporation suing in this State, it is not necessary to its introduction in evidence by the plaintiff that it should have been pleaded. Vebdict.—Interrogatories.—-The court, of its own motion, required the jury, unconditionally, to answer certain interrogatories, which they answered without returning a general verdict. Beld, that the answers could stand as a special vex-dict.

APPEAL from the Fayette Common Pleas. The appellee on the 10th day of May, 1867, filed her complaint in the Wayne Common Pleas, against the appellants, and George P. Eddy, Thomas Wadsworth, George T. M. Davis* George A. Robbins, John C. Fisher, executor of James Oswald, Alfred B. Williams, and the Lake Erie & Pacific Railroad Company. The complaint averred, that the appellee was a corporation, organized under the laws of the States of Ohio and Indiana, with authority to construct and operate a railroad from Fremont, in Sandusky county, Ohio, to Rushville, in Rush county, Indiana. That the same was in process of construction, and that a portion of the line was located through the counties of Randolph, Wayne, Fayette and Rush, in the State of Indiana. That the appellee was created by the consolidation of two existing corporations, to wit, The Fremont, Lima & Union Railroad Company, an Ohio corporation, authorized to construct and operate a railroad from Fremont to Union, a point on the line between said states, and The Lake Erie & Pacific Railroad Company, an Indiana corporation, authorized to construct and operate a railroad from Union to Rushville. That the consolidation Avas perfected, and a board of trustees elected for the neAv company in March, 1865. That the appellee by virtue of the consolidation acquired the franchises, rights, and property of the constituent companies, and became liable for their indebtedness. That prior to the consolidation, The Lake Erie & Pacific Railroad Company had executed a mortgage in the form of a deed of trust to said George T. M. Davis and George A. Robbins, of the line of its contemplated road, with its rights, franchises, etc., a copy of which is exhibited, conditioned for the payment of eight hundred and ninety bonds, for one thousand dollars each, and delivered said bonds and mortgage to said trustees, to be held by them for the company, and not to be negotiated or disposed of, except by her direction. That The Lake Erie & Pacific Eailroad Company, prior to the consolidation, entered into a ■written contract with James Oswald, now deceased, for the construction of her road. That, as part of the consideration of the contract, said company stipulated that, upon certain conditions, said bonds should be delivered to said Oswald. That Oswald, prior to the consolidation, commenced the construction of said road, under the contract, and progressed therewith to a considerable extent, then ceased to work, leaving the road unfinished, and the rights of the parties unsettled, until adjusted in the manner hereinafter stated. That said contract was procured to be made by the fraud and collusion of the appellants and said Eddy and Oswald. That the appellants and said Eddy were directors of the company when the contract, was made, and it was entered into through their agency. That there was a secret and fraudulent agreement between said Oswald and said directors, that they should participate in the profits of the contract. That the work done under the contract was done through the agency of sub-contractors, and was paid for with the means of the company. That after the abandonment of said work, and prior to said consolidation, a secret meeting of the board of directors of The Lake Erie & Pacific Eailroad Company was called and convened at Suspension Bridge, in the State of New York, without adequate notice to the directors not acting in collusion with said Oswald, the place of meeting having been fixed at a place remote from the office of the company, for fraudulent purposes. That said meeting was held on the 14th day of November, 1864, and the only directors of the company present were the appellants and said Eddy; and that said-Oswald was present. That said Oswald submitted to the board of directors, thus organized, a written proposition to cancel his said contract, in consideration of the delivery to him of seventy of said mortgage bonds, said bonds to be afterwards exchanged for a like amount of the mortgage bonds of the consolidated company, negotiations for such consolidation being then pending, and the surrender and cancellation of the remainder of the said eight hundred and ninety bonds; and that upon the delivery to said Oswald of the bonds of the consolidated company, secured by a mortgage of the consolidated road, the seventy bonds of The Lake Erie & Pacific Railroad Company were to be surrendered, and the mortgage to secure them executed by said company was to be canceled and satisfied. That the proposition by said Oswald was accepted by said directors, the object being to secure to said Oswald and said directors seventy of said bonds of the consolidated company, and, in the meantime, to secure said seventy bonds of The Lake Erie & Pacific Railroad. Company to be retaiued by said trustees, so that it would be impossible for the consolidated company to mortgage its road free from incumbrances without providing for them. That the action of said board of directors, as to said compromise, was entered of record upon the records of said company, and the other directors of the company, becoming advised of it, controverted its validity, and the matter remained unsettled at the time of said Oswald’s death, which occurred on the-day of--, 18—, at Stanford, Canada West, where he was domiciled, where his will was proved, and letters testamentary thereof were granted to the defendant John C. Fisher. That said John C. Fisher, as executor of said Oswald, for a valuable consideration, paid to him by the defendant Alfred B. Williams, by a written instrument sold and assigned to him said contract and all the rights of said estate therein, with power to said assignee to compromise and settle all unsettled matters growing out of said contract, and to satisfy and cancel the same. That the assignment was elated the 11th day of July, 1866; but the terms thereof had been under negotiation, and it was understood between said parties that the consolidation had been perfected, and that the appellee was liable to pay any claim against said Lake Erie & Pacific Railroad Company, in favor of said estate, growing out of said contract. That, pending the negotiations between said Williams and said Eisher, said Williams was negotiating with the appellee the terms of settlement with her, in the event he became assignee of the rights of said Oswald’s estate. That, on the 14th day of June, 1866, said Williams and the appellee agreed in writing that in the event of the former becoming assignee of said Fisher, as aforesaid, he would settle with the appellee all claims in favor of said Oswald, or his estate, growing out of said contract, against the appellee or The Lake Erie & Pacific Railroad Company, and discharge the appellee therefrom, and cancel said contract. In com sideration of which the appellee agreed to deliver to said Williams twenty-three thousand dollars, at their par value, of first mortgage bonds of the appellee, drawing seven per cent, interest, payable semi-annually, secured by a first mortgage upon the portion of the appellee’s route between Union and Cambridge City, in the State of Indiana, to be delivered as soon as practicable after the preparation of the mortgage and bonds and the cancellation of the first mentioned mortgage. That the appellee also agreed, when said Williams should furnish written evidence of the consummation of said arrangement between said Fisher and himself, to pay him the sum of one thousand seven hundred and fifty dollars, to be applied as in said agreement’is specified, and also to pay a judgment of about thirteen hundred dollars, indebtedness of the Lake Erie & Pacific Railroad Company, on which, however, a judgment had been taken against said Oswald.. That said Williams, having procured' from said Fisher, executor of said Oswald, the assignment and authority aforesaid, on the 11th day of February, 1867, endorsed upon a duplicate original of the contract between said Oswald and the Lake Erie & Pacific Railroad Company, a written cancellation thereof, and released said company .from, all liability thereon, and directed the trustees, said Davis and Robbins, to surrender to the plaintiff" said mortgage and the bonds secure.d by it. That the plaintiff’ having entered into the agreement with Williams, and being advised that he had become the assignee of the interest of said Oswald, as afoi’esaid, she, with a view to carrying into effect the contract with said Williams, and with á view to completing the line of said consolidated road, executed two mortgages, the two covering the whole of the road covered by the original mortgage, but being upon different parts thereof, and caused the same to be recorded, and executed her mortgage bonds, amounting, at the par value thereof, to the sum of one million dollars, and delivered the mortgages and the principal part of said bonds to the defendant Davis, the mortgagee and trustee named in said mortages, the bonds to be by him disposed of upon the order and for the use of the plaintiff as soon as the original mortgage and the bonds secured thereby should be canceled. That, to facilitate said cancellation, the plaintiff sent an agent to Rew York, where said Davis and Robbins reside, with the original contract with said Oswald, and the endorsement of said Williams thereon, and with money to pay said trustees for their services. That said agent tendered them said money, but they, for reasons hereinafter stated, declined the same, and declined to surrender the bonds. That said agent was also authorized to deliver to said Davis, the trustee of the new mortgage on that portion of the plaintiff’s road between Union andéOambridge City, the bonds secured by said mortgage, of the par value of twenty-three thousand dollars, for the benefit of said Williams. That the plaintiff has paid said Williams the sum of one thousand seven hundred and fifty dollars, and has, satisfactorily to said Williams, satisfied said judgment of one thousand, three hundred dollars, rendered against said Oswald. That, by reason of the premises, the plaintiff is entitled to have the original bonds, amounting to the sum of eight hundi’ed and ninety thousand dollars, and the interest coupons originally attached thereto, delivered up, to be canceled, and the mortgage securing the same released and satisfied by said trustees. That the plaintiff is advised that said Davis and Robbins, said Eisher,and said Williams, are willing to have said bonds and coupons canceled, and said mortgage released and declared satisfied; but that the said Paine, Eddy, Eay, and Webb, being advised of the aforesaid facts and the rights of the plaintiff', notified said Davis and Robbins that they were interested in seventy of the said original bonds of' The Lake Erie & Pacific Railroad Company, under and through said Oswald and the pretended compromise made at Suspension Bridge aforesaid, and that if they surrendered' said bonds and satisfied said mortgage, they would hold' them liable for a breach of trust. That the defendant James Wadsworth, of the city of Hew York, also claims an interest in said seventy bonds. That said Davis and Robbins decline to surrender said bonds and satisfy said mortgage, in consequence of said-claims. That said Paine, Eddy, Eay, and Webb, have no interest in said bonds, except as before stated, and, for the reasons stated, their claims are without foundation. That if the same are not void, as between themselves and the estate of said Oswald, their claim is exclusively against said estate, and they have no claim against said bonds, or against the plaintiff". The plaintiff, in conclusion, prays that it be decreed that said bonds be surrendered for cancellation, and that said mortgage be decreed satisfied. The exhibit annexed to the complaint is a mortgage, or deed of trust, containing the usual provisions contained by such instruments, dated the 31st day of March, 1863, executed by The Lake Erie & Pacific Railroad Company to George A. Robbins and George T. M. Davis, of New York, as trustees for the bondholders. It mortgages the road, franchises, etc., of the' company, extending from Rushville to Union, etc., to secure the payment of eight hundred and ninety bonds, of one thousand dollars each, payable in New York,on the 1st day of June, 1890, with interest from and after the first day of June, 1863, at the rate of seven per ■cent, per annum, payable semi-annually, on the 1st day of ■dune and December of each year. The instrument was duly executed by the corporation, 'the trust accepted by the trustees, and the instrument duly uecorded. On the 17th day of September, 1867, the defendants Paine, Fay, and Webb, moved that the cause be transferred ■to the Wayne Circuit Court, because the title to real estate was in issue; but the court overruled the motion, and they ■excepted. They then demurred to the complaint for the reasons, that it did not state facts sufficient to constitute a cause of ■actiou; because the plaintiff had not legal capacity to sue; ■and because the court had not jurisdiction of the subject of the action. The court overruled the demurrer, and they excepted. The defendants Nicholas E. Paine and John D. Fay answer the plaintiff’s complaint in throe paragraphs. The first paragraph of the answer is a general denial. 'The second is a cross complaint against the plaintiff" and ■their co-defendants, and also against Sylvester Medberry and La Q. Rawson, denying all the charges of fraud, bad faith, and improper conduct, charged in the complaint, and averring, that all they did as directors of said Lake Erie & Pacific Railroad Company, and as individuals, was without fraud, and in good faith, and for the best interests of said -company; that said company contracted, December 25th, .1861, with James, Oswald, deceased, for furnishing materiais and constructing said road, from Rushville, Rush county, Ind., to Union, Randolph county, Ind.; that by said contract said Oswald was to be paid by said company for said work, labor, and materials, per mile, as follows: $16,000 in the first mortgage bonds of said company, bearing seven per cent, interest,payable semi-annually, in New York; $8,000 in the capital stock of said company; and $3,500 in cash. Said contract cannot be exhibited ás a part of this answer, because the same is in the possession of the plaintiff. That at the time of the execution of said contract said company was without means, and wholly without credit, and dependent upon future acquisitions for means to prosecute said work, and said contract was made by the directors of said company in good faith, and, considering’ the means, credit, and circumstances surrounding said company, was advantageous to her. That at the time of making said contract, and for a considerable time thereafter, these defendants and said Webb and Eddy had no interest in the same, direct or indirect. That on account of the financial troubles consequent upon the late war, said Oswald proposed to abandon his said contract, and these defendants and said Webb and Eddy, desiring the construction of the road, and believing such abandonment would destroy it, accepted a proposition from said Oswald, and entered into a written agreement with him, February 21st, 1862, (copy filed herewith, marked Exhibit No. 1) by which they were to aid him in performing his contract, and shai’e equally the profits or losses aris-i ing therefrom. That said Lake E. & P. R. R. Company was designed by its projectors and stockholders to be a link in a series of roads, which, together, would constitute a direct route from Fremont, upon Lake Erie, to Louisville, Ky., and that the Fremont, Lima & Union Railroad Company, a road existing under the laws of Ohio, the proposed route of which was from said town of .Union to. said town of Fremont, was being constructed as the north-east link in said projected route from Fremont to Louisville. That said Oswald proceeded with the execution of said contract until about December 1st, 1864, and was then entitled by the contract to $132,606 cash, and $303,088' in stock. That certificates of stock were duly and legally issued to him according: to the provisions of the- by-laws- of said Company, as were also certificates for a considerable amount of stock to which said Oswald became entitled as a cash subscriber, and assignee of cash subscribers, amounting’, at its par value, to the sum of $--. That about this time the stockholders of said Lake E. & P. R. R. Oo. and of the E. L. & U. R. R. Co. Became desirous of consolidating said roads, in furtherance of said plan to secure an unbroken line from Fremont to Louisville, and it thereupon became necessary to cancel said Oswald contract, and adjust the terms of such cancellation. That said Oswald submitted, Fovember 14th, 1864, to the board of directors of the Lake E. & P. R. R. Co., at a meeting of said board at Suspension Bridge, F. Y., a written proposition, stating the terms upon which such cancellation might be made. Said proposition is filed herewith marked Ex. Fo. 2. That at the same time and place -the President of the E. L. & U. R. R. Co. was present, aetiug’ for said company, and by its authority, and,with the directors of the Lake E. & P. R. R. Co., regarding said proposed consolidation as a matter certain to he consummated, for and on behalf of his said company, acted concurrently with the directors of said Lake E. & P. R. R. Go., in negotiating for and canceling said Oswald contract; and in behalf of the same, and in behalf of his own company, and for the benefit of said anticipated consolidated company, executed, with Oswald, a written contract, dated Fov. 14th, 1864, filed herewith as Ex. Fo. 3. And then and there the hoard of directors of the Lake E. & P. R. R. Go. unanimously adopted a resolution accepting Oswald’s proposition, and canceling his contract; said action being upon the condition that said floating debt was paid and said bonds delivered as stipulated ill said contract between said Oswald and said Rawson. A copy of said resolution is filed herewith, marked Ex. Fo. 4. And said .board then and there resolved, that,in their opinion, a consolidation of said Lake E. & P. E. E. Co. with the E.L. & U. E. E. Co. was expedient, and that such consolidation be made upon the terms agreed upon then and there by written contract, by and between the respective boards of directors of said companies; and said contract was signed by said boards, subject to the approval of the stockholders of their respective companies. That then and there said hoard of directors of the Lake E. & P. E. E. Co. resolved that an order be delivered ,to said Oswald directed to the defendants Davis and Eobhins, trustees, mentioned in the mortgage annexed to the complaint, directing them, as soon as the said consolidation wras perfected, and first mortgage coupon bonds upon the consolidated road of §1,000 each were issued, to deliver to said Oswald .seventy of said bonds, which would be placed In their hands for that purpose, and thereupon to cancel all the bonds in their hands, eight hundred and ninety la number, secured by the mortgage annexed to the complaint, pass the .same over to the consolidated company, and discharge said mortgage. Said order is filed herewith,marked Ex. To. 5. That all said orders, resolutions, and proceedings, were entered at large upon the order book of the Lake E. & P. E. E. Co., and were had in good faith, without fraud, and were deemed by the directors of said company for its best interest; and were not secretly conducted, but with the full knowledge and approbation of La Q. Eawson, then president of the E. L. & II. E. E. Co., and -who Is now, and has been continuously, since the consolidation, the president of the plaintiff. That on Dec. 6th, 1864, at a meeting of the hoard of directors of the Lake E. & P. E. E. Co., duly and legally held at Cambridge City, Wayne Co., Iud,, said board, by resolution, adopted, ratified and confirmed the action of the hoard at Suspension Bridge, aforesaid, as to the consolidation and acceptance of Oswald’s proposition and the cancellation of Ms contract. A copy of said resolution, as to Oswald’s contract, is filed herewith, marked Ex. To. 6. That said proceedings, etc., so adopted and ratified, as aforesaid, constituted tire basis of the action of the stockholders in consummating said consolidation. That all said proceedings, etc., were without fraud, etc., and were considered by said board, and by all persons concerned, for the best interests of the road. That said Oswald performed all the agreements made by him in his said proposition to said board, and in his said contract with said Rawson. That all said proceeding had as aforesaid by the directors of the Lake E. & P. R. R. Co. were afterwards, by said company and the plaintiff, with a knowledge of all the facts and their rights in the premises, fully ratified and confirmed, and the consolidation was made with such knowledge. That the plaintiff, after said consolidation, with a knowledge of all the facts, and her rights in the premises, ratified and confirmed the action of said Rawson, and of said directors of the Lake E. & P. R. R. Co. That said Rawson is now, and has been continuously since the consolidation, the president and general agent of the plaintiff'. That said Oswald, by said proceedings, contracts, and cancellation of said contract, became and was entitled to seventy of the first mortgage coupon bonds of $1,000 each, secured by the mortgage annexed to the complaint, said bonds being in the hands of the defendants Geo. T. M. Davis and Geo. A. Robbins, as trustees therein mentioned. That said, bonds, under the agreement made between said Oswald and said Paine, Pay, Webb, and Eddy, dated the 21st day of Pebruary, 1862, are the property of the parties to said agreement, each owning two-fifths thereof, said bonds being the profits of said Oswald in said contract, subject to the claims of said Davis and Robbins to compensation as trustees, and. the claim of said Wadsworth. That said Williams did not make the negotiations and tíonsummate the contract and assignment with said Pisher, or the subsequent contract, assignment, and adjustment with the plaintiff', as in the complaint stated. That what he did was as agent of The Columbus & Indianapolis Central Railroad Co. and the Jeffersonville, Madison & Indianapolis Bailroad Co. That the bonds alleged to be the property of said Williams, to be secured upon the portion of the road between Cambridge City and Union, are not the property of said Williams, but are really the property of said last mentioned railroad companies. That it is the determination of said companies that the plaintiff’s road shall not be constructed between Cambridge City and Union. That said bonds, thus passing into their hands without consideration, are to be used as a part -of thg machinery to prevent the construction of said road between Cambridge City and Union, as stated. That said Williams, said railroad companies, and the plaintiff* had notice at the time of said negotiations with said Fisher, and at the time of said assignment to said Williams, of the rights of the defendants in said bonds. That the plaintiff’ has not executed any first mortgage bonds upon her road, nor does she propose to do so; but, on the contrary, has executed two mortgages upon the portion of her road within the State of Indiana, one covering the portion between Bushville and Cambridge City, the other, the portion.between Cambridge City and Union. The number and amount of bonds secured by each is unknown to the defendants, but the total amount is eleven hundred thousand dollars, payable in the year 1900. That these defendants are the owners of two-fifths of said seventy bonds, subject to the claims of said Davis and Bobbins and said Wadsworth as before stated. That the stock surrendered by said Oswald was placed in the hands of Sylvester Medberry as an escrow, to be held by him, as shown by the contract between said Oswald and said Bawson, and never was returned to said Oswald. The defendants pray that it be adjudged that they are entitled to two-fifths of said seventy bonds, and that said Davis and Bobbins surrender the same to them. That an account be taken with said Davis and Bobbins and said Wadswoi’th, if anything be due them, or either of them, and they offer to pay into court such sum as may be decreed due them. That said plaintiff' and such of the defendants as this pleading is made a cross complaint against be required to make full and true answer thereto. The defendants pray for all other and proper relief, &e. The third paragraph of the answer is also a cross complaint against the plaintiff'and the defendants hereinafter named. The defendants deny the charges of fraud and improper conduct made against them in the complaint. They aver that the contract entered into by the Lake Erie & Pacific Railroad Co. with James Oswald was made in good faith on the part of the directors of said company, and with a view to its best interests, and was, considering the circumstances surrounding the company, an. anvantageous one for her. Said contract was made on the 23d day of December, 1861, and at that time and for a long time thereafter, they had no interest in it,direct or indirect. That afterwards, on the 21st day of February, 1862, in consequence of the financial troubles of the country, Oswald was disheartened and proposed to abandon his contract; and these defendants, and others hereinafter to be mentioned, desiring the construction of the road, and knowing that such action by said Oswald would destroy the little credit the road had, accepted a proposition made them by said Oswald, that they should aid him in the performance of said contract and that the profits and losses upon said contract should be divided and borne equally by the parties to said agreement. The parties to said agreement were said Oswald, those defendants, and the defendants Eddy and Webb. A copy of said agreement is made part hereof, marked Exhibit ETo. 1. That said Oswald proceeded with his work under the contract until it was estimated under the contract as follows: cash, $132,606, and stock, $303,088. That this work and materials were done and furnished prior to the 1st day of December, 1864. About said date it was desired by the stockholders of the Lake Erie & Pacific Railroad Co. to consolidate said road with the Eremont, Lima & Union Railroad Co., with which road it was subsequently consolidated; the plaintiff being the consolidated company. That in anticipation of said consolidation, said Oswald submitted to the board of directors of the Lake Erie & Pacific Railroad Co. a proposition, agreeing that upon its acceptance his contract might be canceled. This proposition was submitted to a meeting of said board at Suspension Bridge, in the State of New York, on the 14th day of November, 1864. A copy of said proposition is filed herewith, marked Exhibit No. 2. That in addition to -the stock issued to said Oswald under said contract, he possessed a large amount of stock, to wit $-, issued to him upon cash subscription. That the said board of directors, believing it for the best interest of said corporation, adopted a resolution accepting the proposition of said Oswald, and canceled said contract. Said board also then and there adopted a resolution declaring that they deemed it expedient that there be a consolidation of said Lake Erie & Pacific Railroad Co. with said Eremont, Lima & Union Railroad Co., and that the consolidation be made upon the terms then and there agreed upon by the board of directors of each company, subject to the approval of the stockholders of said companies. The directors of said Lake Erie & Pacific Railroad Co. also then and there adopted a resolution, resolving that an order be delivered to said Oswald, directed to Messrs. Davis and Robbins, the trustees mentioned in the mortgage annexed to the complaint, directing them, as soon as said consolidation was perfected and first mortgage coupon bonds upon the consolidated road of $1,000 each were issued, to deliver to said Oswald seventy of said bonds, which would be placed in their hands for that purpose, and thereupon to cancel all the bonds (890) in their hands secured by said mortgage annexed to the complaint, pass the same over to the consolidated company, 'and discharge said mortgage. A copy of said order, marked Exhibit No. 5, is filed herewith. That all said orders, resolutions, and proceedings were entered at large upon the order book of said Lake Erie & Pacific Railroad Co., and were had in good faith, without fraud, and were deemed by said Directors for the best interests of said company; and were not secretly had, but with the full knowledge and approbation of La Q. Rawson, then president of the Fremont, Lima & Union Railroad Co., and who is now, and has been continuously since tho consolidation, the president of the plaintiff. That afterwards, on the 6th day of December, 1864, the board of directors of the Lake Erie & Pacific Railroad Co., at a meeting duly held at Cambridge City, Wayne county, Ind., by resolutions adopted and entered upon the corporation order book of said board, adopted, ratified, and confirmed the action of said board at Suspension Bridge aforesaid, to wit, 'on the 14th day of November, 1864, as to the subjects of consolidation and said Oswald contract. That said proceedings so adopted and ratified constituted the basis upon which said roads were subsequently consolidated. That said Oswald, under said proceedings and the cancellation of said contract, was entitled to seventy of the first mortgage coupon bonds for $1,000 each, secured by the mortgage annexed to the complaint, said bonds being in the hands of said Davis and Robbins, as trustees therein mentioned. That said Oswald performed all the agreements made by him in his proposition heretofore set out and accepted by the board of directors of said Lake Erie & Pacific Railroad Oo. That said bonds, under the agreement dated February 1st, 1862, are the property of the persons specified in said agreement as therein stated, subject to the claim of said Davis and Robbins for compensation as said trustees and the claim of said Wadsworth. They aver that said Williams and the plaintiff had full knowledge of the rights of the defendants in said bonds, secured by said mortgage aforesaid, at the time of negotiation for and assignment of said Oswald contract. That the plaintiff has not executed a first mortgage upon her whole road, nor does she propose so to do, hut on the contrary has executed two mortgages upon the part of the road formerly known as the Lake Erie & Pacific Railroad Co., one covering the road from Rush-ville to Cambridge City, the other from Cambridge City to Union; but the number of bonds secured by each is unknown to the defendants, but the total amount these defendants charge to be $1,100,000, payable in the year 1900. The defendants aver that they are entitled to two-fifths. of said seventy bonds, subject to the claims aforesaid, and they pray that an account thereof be taken, and such decree be made as is just and equitable; that the court decree that they are entitled to two-fifths of said seventy bonds; and that said trustees be adjudged to surrender the same to them. They further allege that the stock surrendered by said Oswald was placed in the hands of Sylvester Medberfy as an escrow, to bo held by him until said seventy first mortgage bonds of the consolidated company were delivered to said Oswald; and he is made a party hereto, and required to answer this answer and cross complaint. The plaintiff', said Wadsworth, Eddy, Webb, Davis, Robbins, Eisher as executor of Oswald, Williams, Medberry, The Lake Erie & Pacific Railroad Co., and La Q. Rawson, are made defendants to this cross complaint, and are required to answer the same. The defendants pray that the court will, upon the final hearing herein, make such order and decree as equity and the rights of the parties demand. Exhibits to the Answer. Ho. 1. Whereas James Oswald, Esq., of Canada West, did on the 23d day of December, 1861, enter into a contract with the Lake Erie & Pacific Railroad Company to construct a' single track railroad, as set forth in said contract, from Rush-ville to Union, in the State of Indiana; and whereas it was understood by the undersigned that L. Q. Eawson was, in furtherance of said project, and as President of the Eremont & Indiana Eailroad Company to give to said Lake Erie & Pacific Eailroad Company, one hundred and fifty thousand dollars of the second mortgage bonds of said Fremont & Indiana Eailroad Company, which were then valued at eighty cents on the dollar, but which said second mortgage bonds have been cut off by a secret foreclosure of the first mortgage bonds of said company; and whereas the undersigned have aided said Oswald and expect to aid him in the prosecution of said contract to completion: Now, therefore, in consideration of such aid, and furnishing, by L. Q. Eawson, on his part, an equivalent of first mortgage bonds of the Eremont & Indiana Eailroad Company under its new organization, for those before mentioned as having been cut off, it is hereby mutually covenanted and agreed by and between the undersigned, that the net profits of the contract of said Oswald with' said Lake Erie & Pacific Eailroad Company shall be shared equal by the parties hereto as well as all losses, share and share alike. Dated at Suspension Bridge, N. Y., February 21, 1862. (Signed.) John D. Fay. * James Oswald. D. Webb. Geo. P. Eddy. N. E. Paine. No. 2. Suspension Bridge, N. Y., \ Nov. 14,1864. j To the President and Directors of the Lake Prie § Pacific Railroad Company: Gentlemen, Having been informed that you are desirous of consolidating your line of road with the Eremont, Lima & Union Railroad Company, in the State of Ohio, and in order to enable you to do so, that you request of me a proposition as to the terms upon which I will cancel my contract made with you on the 23d day of December, 1861, for constructing your said line of road, I beg leave to make the followfing proposals:— 1st. I will cancel and abrogate my said contract, upon your giving me seventy of the first mortgage coupon bonds of your said company, of one thousand dollars each, which bonds are to be exchanged for a like number, kind, and amount of bonds of the consolidated company,in time and mann.er hereinafter specified. 2d. You to pay the floating debt of said company, including five promissory notes of five hundred dollars each made by the directors of said company. The pressing portion of said debt to be paid at once, and the balance too as soon as practicable thereafter; I to pay all liabilities I have incurred since the first day of October last. 3d. I will settle and pay the trustees of said bonds, G. A. Robbins and Geo. T. M. Davis; will settle and pay the Hon. James Wadsworth for his services. 4th. You to give me an order upon said trustees for the balance of said bonds, 820 in number, and, also, for the bonds, seventy in number, which I am to have under this proposition; but all of said bonds shall be and remain in the hands of said trustees until the bonds of the consolidated company are issued and ready for delivery as hereinafter stated, when said trustees shall cancel and exchange seventy of said bonds for a like number, kind, and amount of said consolidated bonds, which consolidated bonds they are to hold for the benefit of, and to deliver to, Mr. James Oswald, when called for by him; also, that they will, at such time, cancel and deliver to said consolidated company the balance of said bonds, eight hundred and twenty in number, and discharge the mortgage upon which said bonds are issued. 5th. The bonds of the consolidated company to be issued and exchanged for the present bonds within six months from the date hereof. 6th. You to issue to me the amount of stock subscribed by me, and now due me as a cash payment upon my said contract for work already done. (Signed.) James Oswald. No. 3. This agreement by and between James Oswald, of Canada West, and L. Q. Rawson, of Premont, Ohio, witnesseth: that said Oswald has agreed to endorse to L. Q. Rawson, and place in the hands of S. Medberry, of Columbus, Ohio, three hundred and sixty-nine thousand nine hundred and fifty dollars of the capital stock of the Lake Erie &’ Pacific Railroad Company, which the said Medberry is to have transferred on the books of said company to the said L. Q. Rawson, and take new stock therefor in his name, which certificate shall be endorsed in blank by said Rawson, and said certificates are to be held by said Medberry in trust until the said Rawson, or the consolidated company of the Premont, Lima & Union Railroad Company and the Lake Erie & Pacific Railroad Company shall have paid off, or secured to be paid, the floating debt of said Company. Second. And until seventy of the first mortgage bonds of the consolidated company of the Premont, Lima & Union Railroad Company and the Lake Erie & Pacific Railroad Company are delivered by said Rawson, or some agent of the consolidated company, to the trustees named in the bonds of the Lake Erie & Pacific Railroad Company, subject to the order of said Oswald; the said debt to be paid, or secured to be paid within one year, and the said bonds delivered within six months from the date hereof; but if the said debts are not so paid, or secured to be paid as aforesaid, and said bonds so delivered, then, and in that case, the said stock is to be re-delivered to said Oswald by said Medberry, or to said Oswald’s order. Third. "When said debt is paid, or secured to be paid as aforesaid, and bonds delivered as above stated, the said Medberry shall deliver the said stock to said Rawson, or his order, and the said trust hereby created shall be ended and of no further effect. In witness whereof, the parties have hereto set their hands and seals, this 14th day of November, 1864. (Signed.) James Oswald, [l. s.] La Q. Rawson, [l. s.] No. 4. On motion of John D. Fay, seconded by D. "Webb, the following resolution was unanimously adopted:' Resolved, That the proposition of James Oswald, submitted to this board, and which is hereinafter set forth, by which he rescinds and cancels his contract for the construction of the Lake Erie & Pacific Railroad, be, and the same is hereby accepted, with all its terms and conditions; and said contract is hereby declared void and of no further effect: provided, the floating debt is paid off by L. Q. Rawson, of Ohio, and the bonds delivered as per agreement between said Oswald and L. Q. Rawson, on this 14th day of November, 1864. No. 5. On motion of John L>. Eay, seconded by N. E. Paine, it was resolved that the following order be delivered to James Oswald, to wit: To Messrs. Davis $ Robbins, Trustees, $• :< * The board of directors now propose to issue bonds which shall be secured by a first mortgage on the whole road, of an amount sufficient, in addition to the aid to be obtained along the line, to complete and equip it, and retire the present outstanding bonds, which are to be taken up and canceled, in exchange for a like number of the new issue. From the progress already made, looking to the negotiation of these bonds, it is confidently believed that we shall soon be able to dispose of a sufficient amount of them to justify the resumption of work on the line. “L. Q. Lawson, “President. “Feehont, March 7th, 1866.” The defendants then proved the execution of, and offered in evidence, a contract between James Oswald and the defendants Paine, Fay, "Webb, and Geo. P. Eddy. The plaintiff' objected. The court sustained the objection, and the defendants excepted. The contract thus offered in evidence, and rejected, is hereinbefore set for as “Exhibit Ho. 1,” of the answer (an-' te, p. 299). The defendants then identified the record of the Lake E. & P. R. R. Co., and offered in evidence certain entries found therein. The plaintiff objected to the introduction of the same, and the'court sustained the objection. The defendants excepted to the ruling. The evidence thus excluded is, in substance, as follows: That at a meeting of the hoard of directors of the Lake Erie & Pacific R. R. Co., convened at Suspension Bridge, N. Y., on the 14th day of November, 1864, it was resolved to accept the proposition of James Oswald to cancel his contract with said road. Said proposition is dated November 14th, 1864, and the same has heretofore been set out. It was also resolved to consolidate said road with the E., L. & U. R. R. Co., upon the terms of a paper made this day, subject to the ratification of the stockholders. Said contract of consolidation is then set out upon the records of said company, and is the same as the contract of consolidation heretofore set out, except that it recites, that the basis of consolidation and stock representation of each of the constituent companies shall be $470,000 to the Lake E. & P. R. R. -Co., and $900,000 to the E., L. & U. R. R. Co.; and in case that the stock now issued by each of said companies is less than the amount of each as above stated, an additional amount or per cent, of stock shall he issued to the present stockholders in each of said companies, to make it equal to the amount above mentioned for each road. The present stock of said companies is to he surrendered, and consolidated stock to be given in. lieu thereof, when the consolidation is perfected. Said contract is signed by Geo. P. Eddy, D. Webb, N. E. Paine, John D. Eay, Directors of the L. D. P. B. B, Co. R. Jennings, Sec’y D. K § P. B. B. Co. La. Q. Rawson, S. Carlin, C. W. Poster, D. J. Cory, James Moore, R. W. B. McLellan, Directors of the JF. D. 8; U. B. B. Co. R. W. B. McLellan, Sec’y F. D. $ U. B. B. Co. It was also resolved to deliver to James Oswald an order addressed to Messrs. Davis and Robbins, trustees, etc. The same has been heretofore set out in full as Ex. Ro. 5. It was also resolved to convene a meeting of the stockholders of said company, to consider said contract of consolidation, at Cambridge City, Ind., on the 4th day of January, 1865; and the Secretary was directed to notify the stockholders of the same. The defendants then offered in evidence certain other entries in the record of the Lake E. & P. R. R. Co. The plaintiff objected to the introduction of the same, the court. sustained the objection, and the defendants excepted. The evidence thus offered and excluded was, in substance,. as follows: At a meeting of the board of directors of the Lake E.. & P. R. R. Co., held at Cambridge City, Ind., Dec. 6th,. 1864, the proceedings of said board had at Suspension. Bridge, R. Y., Rovember 14th, 1864, as above, were approved and confirmed, and the contract of consolidation, there entered into was ratified, confirmed, and adopted. It-was also resolved to submit said consolidation contract to* the stockholders of said company at a meeting thereof, to. be called for that purpose, to be held in Cambridge City,. Indiana, January 18th, 1865. It was also resolved that all proceedings had at Suspension Bridge, R. Y., on the 14th day of Rovember, 1864, not heretofore referred to, relating: to the Oswald contract, so called, or otherwise, be and are - fully confirmed and adopted. On motion of the plaintiff, various parts of the defend- ■ ants’ depositions were suppressed. The defendants excepted to the rulings of the court therein. The defendants then read in evidence the unsuppressed-portions of the deposition of Richolas E. Paine, as follows :— * * * “Soon after this,a company was organized for the construction of the same, known as the Lake Erie.- & Pacific Railroad Company, with seven directors, who were, as well as I now remember, L. Q. Rawson, of Ohio; George P. Eddy, John D. Eay, and myself, of the State of New York; Alexander White, R. Rush, and Dr. Sexton, Sen., of the State of Indiana; * * * and said Rawson was requested to retire from the presidency and director-ship of the L. E. & P. R. R. Co., which he thereafter did, ;and said Eddy was chosen in his place. * * * 'This meeting at Cleveland was adjourned to the Suspen•sion Bridge, where said Oswald, Eddy, Eay, Rawson, and ¡his engineer, S. Medberry, and myself, met for the purpose of considering further the question of consolidation. 'This was about the 14th of November, 1864. Mr. Rawson then claimed to represent the Eremont, Lima & Union road, ¡and Medberry was present as his adviser, Mr. Rawson ■then distinctly and intimately knew the precise condition of the Lake Erie & Pacific road, the number of ties it owned, the extent of its grading, and the amount, as near as could be stated by Mr. Webb, of the floating debt, and also the state of its bonds and stock. He knew of the amount of local subscriptions that were unpaid, and what ■was conditional, and what unconditional, there being much more of these subscriptions, as well as I now remember, ■which were considered good, than the supposed amount of the floating debts. Said Rawson also then knew clearly, distinctly, positively, and in detail, and had done so from time to time, from the beginning, the precise relations of Eddy, Eay, Webb, Oswald, and myself, in the Oswald ■contract as above stated. There was no concealment from him in any respect in reference thereto, nor from any ono else who made inquiry. The whole state of the case was familiar to him as to myself, or either of the directors. Under this state of facts we opened the negotiations for consolidation, and stated to said Rawson what proposition ■Oswald would probably make to his board of directors ‘(which was-considered a matter of mere form), as the contractor of .record. •* * * There is a writing to that effect with Rawson and a Mr. Fisher, the executor of Oswald, a copy of Which is annexed hereto, marked ‘Af * * * but I had no knowledge of this until after the contract was closed, nor had Fay or Webb, as I believe. Afterwards, and before the stockholders of either of the roads had voted upon the question of consolidation, thus incipiently begun at the Bridge, as aforesaid, it was adjudged necessary to legalize the proceedings as to said consolidation, thus commenced at said Bridge, in the State of Indiana; and the said Fay, Eddy, Webb, and myself, as directors, went to Cambridge City, and there met Rawson and others of the board of the Lake Erie & Pacific road, with several of its stockholders, among whom was Alfred B. Williams, and the proceedings at the Bridge were then and there confirmed by resolution of the board, and I then and there, in a statemeut before the board and said stockholders, and said Williams, rehearsed the transaction at the Bridge as to the §70,000 bonds, and the interest therein of Webb, Fay, Eddy, and myself, with said Oswald, and the fact that Oswald was to pay what of them might be duo to Davis, Robbins, and said Wadsworth, to the end that there should be no want of knowledge in reference thereto before a final action was had upon the question of consolidation. My object in this regard was to give full notice of my interest in said bonds, and how that interest arose, .so that all hearing might act accordingly. Such proceedings were thereafter had, as I am informed and believe to be true, that the said roads were consolidated, and assumed the name of the “Lake Erie & Louisville Railroad Company,” since which time I have had no connection with the roads whatever. * * * I do not remember, aud do not believe, that I ever exchanged even a word upon the subject of said consolidation with any party interested in the said Fremont, Lima & Union road, or with either of its directors, except as aforesaid with Rawson and Medberry. With no other party out of the officers of the road would I have entertained the subject at all.” The exhibit filed with Paine’s deposition is the agreement between James Oswald and La Q. Rawson, dated Rov. 14th, 1864, and is the same as set out in Ex. Ro. 3. The defendants then read in evidence the unsupprossed portions of the deposition of John D’. Fay, as follows: “Tn December following, a board of seven directors were appointed, three of whom were in Indiana, La Q. Rawson in Ohio, and the other three, R. E. Paine, George P. Eddy, and myself in Rew York. L. Q, Rawson was made president of the company, D. "Webb superintendant, and myself chief engineer. We directed the route to be surveyed and estimated, and maps, and plans, and profiles of the line to he made, which wore done, and the line prepared for letting the work; all which was done under my direction as chief engineer. I also' prepared the specifications in detail as to the manner in which the work was to be done. * *■ * Mr. Oswald continued the work, grading, in amount, about fifty miles of the lino, and procured a large portion of the ties for the road, when the company ran short of means, and the work was stopped. In the meantime, efforts were made to get the money necessary to complete the road. Several interviews were had in Rew York City with Messrs. Bright and Ricketts, and two or three other parties, but without any definite result. & * * Mr. Rawson understood the relations existing between Oswald, Eddy, Webb, Paine, and myself, before, and during the pendency of said negotiations; and said Col. Paine, at a meeting of the directors at Cambridge City, Inch, to confirm the acts of the board at Suspension Bridge, stated to the board, at which Mr. Mercer, Director Williams, and other stockholders were present, the particulars in regard to the 70 bonds, and our relations and connections therewith.” The defendants then read in evidence the unsuppressed portions of the deposition of George P. Eddy, as follows: * * * “I was one of the directors of the Lake Erie & Pacific R. R. Co., at the time of its organization, and remained so up to the time of its consolidation with the Fremont, L. & IT. R. R. Co. I was some three years president of the Lake Erie & Pacific R. R. Co. and conversant, as I believe, with all the prominent features of the letting of the road t© James Oswald, and of the work done under said contract, and with the history of its consolidation. * * * Mr. Oswald visited said line of road, and made a proposition to the directors at a meeting of the ■directors held, at Cambridge City, -on or about the 10th of December, 1861, at which were present, Allen Lewis, J. P. White, John D. Fay, and myself, said Lewis and White be-^ Ing directors of Indiana, .and said Fay and myself of Few Tork—no other directors of the board were present, or participated in said letting. The said contract was executed by L. Q. Rawson, president of the Lake E„ & P., and the then said president of the Fremont & Indiana road. * * * After said Rawson had remained President of said Lake E. & P. R. R. for a short time, he was induced to resign, and I was elected in his place, and remained the president of the road up to or near the time of its consolidation with the Fremont, Lima & Union R. R. * * * But said §70,000 of bonds have not been delivered, nor has said floating debt been paid, as I am informed and believe. At the time of said agreement at said Bridge, as to said consolidation as aforesaid, the said Rawson fully understood, definitely, and positively, the precise relations of Fay, Paine, Webb, and myself, with said Oswald in said contract; that wc were to have, and receive, equally, the results of said 70 bonds. As to this I am positive, and that he had known such relation from the time it begun to the time of said agreement with said Oswald; * * * and the said Paine (said Rawson, Williams, and others being present) stated fully the relations of said Fay, Webb, himself, and myself, in the Oswald contract, and the terms of said consolidation, so far as said 70 bonds were concerned, and the payment of said floating .debt, and how our interests arose in said contract, •and that our interest in said bonds was each equal with the interest of said Oswald, and that out of them said Oswald had to quiet the legal rights of the trustees, Davis and Robbins, and said Wadsworth; * * * said Williams also-paid me the amount of money I had advanced in the way of expenses, while acting as director and president of said company.” The defendants then read in evidence the portions of the deposition of Dwight Webb “not suppressed, as follows: * * * “I should here state, by way of showing the relation of L. Q. Rawson to this line Of proposed road, that he had some two years before caused to be organized a railroad company for the same object, and was for a time the president of such company. * ;'r * I -was elected director of the company December Ith, 1863, or about that time, and was such at the time of the meeting at Cleveland, and all subsequent meetings, and voted on the adoption of tlio articles of consolidation, and on tho resolutions to accept the proposition of J ames Oswald ae before stated.” The defendants having read in evidence such portions of the depositions of Paine, Fay, Eddy, and Webb, as had not been suppressed, excepting that portion of the deposition of R. E. Paine, as follows: “ Said Oswald has deceased, and after his decease, as I am,” the court directed, over the objection of the defendants, the same to be read in evidence. To this tho defendants excepted. The defendants had read in evidence all of said deposition not suppressed, except the line above quoted, without condition, or exception, then, that being omitted, the court, as above, required the same to be x’eacl in evidence. Alfred B. Williams testified for the plaintiff, as follows: “I was not present, December 6th, 1864, at a meeting of tho directors of the Lake E. & P. R. R. Co., at Cambridge City.” R. II. J ohnson testified for the plaintiff, as follows-: “I was present, December 6th, 1864, at a meeting of the directors of the Lake E. & P. R. R. Co., at Cambridge City. Paine, Eddy, and Webb were present.” The court, of its own motion, charged the jury as follows :— “Gentlemen op the Jury, In this case the Lake Erie & Louisville R. R. Co. have brought suit against Thomas Wadsworth, Nicholas E. Paine, George P. Eddy, JohnD. Fay, Dwight Webb, George T. M. Davis, George A. Robbins, John C. Fisher, Ex., etc., of James Oswald, deceased, Alfred B. Williams, and the Lake Erie & Pacific R. R. Co. Wadsworth, Eddy, Davis, Robbins, Fisher, Williams, and the Lake E. & P. R. R. Co., have been defaulted. Nicholas E. Paine, John D. Eajr, and Dwight Webb appear and defend, and it is the issues joined between the plaintiff and these three defendants you are to try and determine. Those issues are, briefly, as follows: The plaintiff alleges, that the Lake Erie & Pacific R. R. Co. organized in the State of Indiana, in October, 1860; that afterwards they executed 890 bonds of fl,000 each, and at the same time executed a mortgage, or deed of trust, to said George T. M. Davis and George A. Robbins, as trustees, to secure the payment of said bonds, and that said bonds were afterwards delivered to said trustees, to be by them sold on the orders of said company. The plaintiff further alleges that the Eromout, Lima & Union R. R. Co. became organized as a corporation of the State of Ohio in January, 1862, and that afterwards said company and the Lake Erie & Pacific R. R. Co. consolidated, and became one corporation, and one railroad company, by the name of the Lake Erie & Louisville R. R. Co., the plaintiff in this suit; that afterwards said plaintiff, prior to the commencement of this suit, demanded of said trustees a delivery and cancellation of said bonds and the satisfaction of said mortgage. The jilaintiff further alleges, that said defendants, Paine, Eay, and Webb, claimed to have an interest in said 70 of said 890 bonds, and that such claim of interest prevents the cancellation of said bonds and mortgage. To the complaint of the plaintiff, Paine, Eay, and Webb put in a general denial, denying all the allegations of the complaint. The instructions will be given with reference to seven interrogatories, which you are required to answer. The first interrogatory is as follows: 1st. Was there such ah organization as the Lake Erie & Pacific R. R. Co. in the State of Indiana ? 2d. Did said railroad company execute 890 $1,000 mortgage bonds, and execute a mortgage on the line of their road to secure the payment of the same? 3d. In whose hands were these bonds placed, and in whose hands axe they now? 4th. ITow many of these bonds have been negotiated and sold? 5th. Did the defendants Nicholas E. Paine, John D. Eay, and Dwight Webb, ever, prior to the commencement of this suit, claim an interest in said bonds? 6th. Was there such an organization in the State of Ohio as the Eremont, Lima & Union R. R. Co.? 7th. Did the Lake Erie & Pacific R. R. Co. and the Eremont, Lima & Union R. R. Co. consolidate, and form one company, called the Lake Erie & Louisville R. R. Co., prior to the commencement of this suit?’ If a copy of the articles of association of the Lake Erie & Pacific R. R. Co. are testified to be so by the Secretary of State, this affords presumptive evidence that it is an incoporated companjq and if there is no evidence showing that it was not an incorporated company, you will be warranted in answering this interrogatory in the affirmative. If you are satisfied that Paine, Eay, and Webb were directors of said company, and acted as such, they can not now deny that it had been incorporated and organized. As to the 2d, 3d, and 4th interrogatories, the-evidence is before you, and requires no explanations or charges. The 5th interrogatory reads as follows: Bid the defendants Nicholas E. Paine, John B. Eay, and Bwight Webb, ever, prior to the commencement of this suit, claim an interest in said bonds? In answering this interrogatory you are not to determine whether Paine, Eay, and Webb had an interest in the 890 bonds, or any part of them, but merely whether or not they asserted that they had an interest. The 6th interrogatory is as follows: Was there such an organization in the State of Ohio as the Fremont, Lima & Union R. R. Co.? The incorporation of the Fremont, Lima & Union R. R. Co. may be proved by a copy of its articles of association properly certified by the Secretary of State of the State of Ohio, and properly authenticated. I have admitted such copy in evidence. If there is no evidence contradicting such incorporation, you are warranted in answering said interrogatory it the affirmative. The 7th interrogatory is as follows: 'Bid the Lake Erie & Pacific R. R. Co. and the Fremont, Lima & Union R. R. Co. consolidate, and form one company, called the Lake Erie & Louisville R. R. Co., prior to the commencement of this suit? The consolidation of the Lake Erie & Pacific. R. R. Co. and the Fremont, Lima & Union R. R. Co. must bo proved to have been done according to the laws of the State of Ohio; that law and the evidence is before you.” To the giving of said instructions, and each of them, in charge to the jury, and to the propounding of said interrogatories, and each of them, to the jury, the defendants objected and excepted. The jury, without returning a general verdict, returned the following answers to the interrogatories propounded by the court, to wit: To the 1st interrogatory, “yes;” to the 2d interrogatory, “yes;” to the 3d interrogatory, “in the hands of the defendants Davis and Robbins, except one bond;” to the 4th interrogatory, “one bond;” to the 5th interrogatory, “the defendants Paine and Webb did;” to the 6th interrogatory, “yes;” to the 7th interrogatory, “yes.” To the reception of the answers to said interrogatories so returned by the jury, and to the reception of each of them, the defendants excepted. The defendants moved for a new trial, and filed written reasons therefor. The court overruled said motion, and the defendants excepted. The court then rendered the following final judgment and decree in said cause, based upon the answers returned by the jury to the interrogatories propounded by the court, to wit: “It is therefore ordered, adjudged, and decreed by the court, that 889 of the bonds and coupons of the Lake Erie & Pacific R. R. Co., and referred to in complaint, be delivered by the said defendants Davis and Robbins, the trustees of said mortgage given as security for the payment thereof, to the plaintiff, to be canceled, and that the same are hereby canceled, and declared null and void, and that $23,000, at the par value thereof, of the bonds of the plaintiff secured by said mortgage on the line of its road between Union and Cambridge City be delivered by the said trustee, George T. M. Davis, the grantee of said mortgage, to the defendant Williams as soon as said first original mortgage is canceled and satisfied. That the claim asserted by the defendants Paine, Eddy, Eay, and Webb, to an interest in any part of said bonds described and referred to in said complaint, is invalid and void. That the plaintiff, upon the surrender of all of said bonds by the defendants Davis and Robbins, pay to them the sum of $5,750. That the plaintiff recover of the defendants, except the defendant Eay, their costs in this suit laid out and expended, and that said defendant Eay recover of plaintiff his costs laid out and expended in this suit.” To the rendition of which said judgment and decree, the defendants then and there, both as to its substance and form, objected and excepted. The questions presented are saved by proper bills of exceptions.