VtesWn tVC Rat Pe.ee>Vcts tod dotunrie^ ,+s Library OF THE University of NortK Carolina This book was presented by Members of the family of the late COL. A. B. ANDREWS C^385.I-U)E UNIVERSITY OF N.C. AT CHAPEL HILL 00042093661 FOR USE ONLY IN THE NORTH CAROLINA COLLECTION THIS ITEM MAY NOT BE COPIED ON THE SELF-SERVICE COPIER Form No. A -368 RECORDS AND DOCUMENTS PERTAINING TO THE TITLE '*v OF TH1 Western N.C. Railroad, Eastern and Western Divisions. ,,/ f CpSfe, WS2wb RECORD OF THE SIBLEY SUIT TO FORECLOSE THE MORTGAGE OF THE WESTERN NORTH CAROLINA RAIL ROAD COMPANY, EASTERN DIVISION, (1872.) In the Circuit Court of the United States, Western District of Nonh Carolina. Be it remembered that on the 14th day of August, 1S72, Henry Clews, and Hiram Sibley, sued as prosecuted out of the Court aforesaid a writ in these words : United States of America, the Western District^ of North Carolina. J" SS. The United States of America : To the Western North Carolina Rail Road Company, (Eastern Division,) Tod. R. Caldwell, Rums Y. McAden, The First National Bank of Char- lotte. John Rutherford, Thomas Y. Greenlee, James Greenlee, Mary Car- son, A. H. Erwin & N. H. D. Wilson, Assignee, .&c, of the Assets, &c, of the President and Directors of the Bank of Cape Fear a Bankrupt, Thomas Y. Greenlee, Trustee of Martha M. Greenlee, Robert M. Walker: We command you, and every one of you that you appear before the Judges of our Circuit Court of the United States of America for the Western District of North Carolina, at the office of the Clerk of the said Court, in the city of Greensboro in said District, on the First Monday in the month of September next, to answer the Bill of Complaint of Henry Clews and Hiram Sibley, com- p'ts, against the Western North Carolina Rail Road Company, (Eastern Division,) Tod. R. Caldwell and others. Filed in the Clerk's office of said Court, in said city of Greensboro, then and there to receive and abide by such Judgment and decree, as shall then, or there- after, be made, upon pain of Judgment being pronounced against you by default. To the Marshal of the District of North Carolina to execute. Witness : The Hon. Salmon P. Chase, Chief Justice of the Supreme Court of the United States, at Greensboro, in said District, the Monday in 1S7 , and in ninety (97) seventh year of the Inde- pendence of the United States. Issued 14th day of August, 1872. Jno, W. Payne, Clerk. And on the return day of said writ before tWcferk of the afore- said Court, S. T. Carrow, Marshal of said^Vistrict, returns that he had executed the said writ on all the defendants except A. H. Er- win, John Rutherford and Hiram Kelly. And thereupon, it was ordered that alias writs issue for the aforesaid Erwin, Rutherford, and Kelly, returnable to Rule day in October, which writs were issued. 0^ r work already done on the line of the said Railroad, the sum of four- teen hundred thousand dollars, and it appeared necessary to the president and directors of the said Railroad to raise the said amount in addition to the subscription made by the State of North Carolina, That in order to procure the said sum of money which from its large amount was not expected to be procured from one person, the issued bonds, president and directors of said Railroad Company on the 8th day of January, A. D., 1870, in pursuance of, and in conformity with, the various acts of the General Assembly of the State of North Carolina, hereinbefore referred to, did res< lve to issue fourteen hundred thous tnd dollars of coupon bonds of said Company, to bear eight per cent, semi- annual interest, and to run for twenty years, to be of the denomina tions of one hundred dollars and one thousand dollars, all to be se- cured by a mortgage or deed in trust to Tod R. Caldwell and Henry Clews, as trustees, on all the road, road-bed, charter, iron, cars, en- gines, depots, right of way, franchises, rights, credits and all prop- erty, real and personal, belonging to said Railroad Company, inclu- ding all of the said Kt^jroad in running order, as well as that graded and being graded, including the entire line from Salisbury to Ashe ville, and all the property, real and personal, that the said Railroad Company then had or owned, and all that it might aequire in the future as appurtenant to said Railroad, conditioned for the payment of the said bonds at then maturity, and pledging the profits arising from the Road for the payment of the interest from time to time, as (5) it might fall due, it being intended by the said president and direc tors to secure tile payment of the said bonds without priority in the hands of whomsoever might thereafter hold them or any of them. That said resolution of said board of directors was passed at a meeting of the board and duly entered on the minutes of the board. That thereupon and on the 1st day of March, 1870, as your ora- tors are informed and believe, the said Eailroad Company made and Aggr'te bonds executed its bonds to the aggregate amount of fourteen hundred $1 ' 400 ' 000 - thousand dollars, bearing interest at eight per cent, per annum, pay able semi-annually on the first days of January and July, both prin cipal and interest payable in the City of New York, twelve hundred of which were of the denomination of one thousand dollars each, and twenty hundred of the denomination of one hundred dollars each, all bearing date March 1st, 1870, and payable January 1st, 1890 That each of said bonds purported and declared that the Western North Carolina Eailroad Company was indebted to the holder thereof in the respective amount thereof lawful money of the United States, which it promised to pay to him in the City of New York, with interest at the rate of eight per cent, per annum, which interest it also declared should be payable in the City of New York, on the first days of January and July in each year, on the surrender of certain warrants or coupons thereto attached, and printed on the same paper with the bond and being part thereof, and the said cou- pons likewise expresed the payment of the said interest half yearly ; each coupon representing six months interest during the whole term of the bond from March 1st, 1870, to January 1st, 1890. And the said company caused the said bonds to be attested by the signatm*es of the President and Secretary of the said company, and caused the coporate seal of the said company to be affixed thereto, and caused the said coupons to be assigned by the treasurer, of the said company, and that thereupon the said bonds were authentica- ted by having endorsed thereon the certificate of the trustees named in the mortgage, yiz : Tod R. Caldwell and Menry Clews. And your orators further show that at the time of the making and executing the said bonds, to wit ; on the first day of March, 1870, the said the Western North Carolina Rail Road Company made and executed under its common seal an indenture of mort- MafchfiSTO. gage bearing date as of that day between said rail road company as party of the first part and your orator, Henry Clews and the de- (6) fendant, Tod R. Caldwell as trustees parties of the second part, wherein after reciting the passage of the Act of the General As- sembly authorizing the issuing of the said bonds and the ratifica- tion thereof by the stockholders of the said company, and after re- citing the determination arrived at by the President and Directors ot the company as to the necessity of raising other funds in addi- tion to the State appropriation to complete said rail road and the resolution of the President and Directors of the Sth of January, 1870, tore-issue fourteen hundred thousand dollars of coupon bonds at eight per cent, interest payable in twenty years, to be secured by a mortgage upon all the property of the road, and the dhection given by said President and Directors to make said bonds and said mortgage, the said the Western North Carolina Rail Road Com- pany, for and in consideration of the sum of one dollar to it in hand paid by the party of the second part, and for and in consider- ation of the premises and for the securing the said bonds, (a copy of one of which was included in said mortgage,) and the interest to grow due — thereon granted, bargained, sold aliened, transferred and conveyed to your orator, Henry Clews and to Tod R. Caldwell as joint tenants and not as tenants in common, and to the successor or survivor of them and to their assigns, in trust, all the property of the said company by the following description : all and singular the rail road of the said party of the first part known and designa- ted as the Westei-n North Carolina Rail Road, extending from the terminus thereof in the city of Salisbury to the terminus thereof at Asheville in the State of North Carolina, and being about one hundred and forty miles in length, embracing all the railways, ways, rights of way, depot grounds and other land; all tracks, bridges, viaducts, culverts, fences and other structures; all depot- houses, station houses and other buildings; all machine shops and other shops whether now held or hereafter built or acquired for use in connection with the said rail road, hereinafter described, and including also all locomotives, tenders, cars and other rolling- stock or equipments andk^d machinery implements, tools, fuel and tools for construction on any of its equipments or appurtenances whether now held or hereafter acquired, all of which things are hereby declared to be appurtenances and fixtures of said rail road, together with all corporate franchises necessary and proper to en- able the parties of the second part, their assigns and successors, to (7) have, hold, use, repair and operate said railroad, together with all and singular the tenements, hereditaments and appurtenances, franch- ises and rights thereto belonging and the reversions, remainders, rents and profits thereof. And the said mortgage also contained the following further clauses: to have and to hold the said rail road, equipments and appurtenances and property unto the said parties of the second part as joint tenants and not as tenants in common, and to the successor or successors or survivor of them in trust, and to the assigns of them the said parties of the second part in trust, and to their assigns and to the survivor or successors and the as- signs of such in trust and to the only proper use and behoof of the said parties of the second part, and to the survivor, successor or successors of them in trust and their assigns in trust; nevertheless to have and to hold the same upon the conditions and lor the pur- poses hereinafter generally expressed, to wit : Article ist. Until default shall be made in the payment of the principal or interest of said bonds or some or any of them, or until default shall be made in respect of something by these presents required to be done or kept by said party of the first part, said part of the first part shall be suffered and permitted to possess, control and operate the said rail road and every part and parcel thereof, and its appurtenances, and to take anil use the tolls, rents, incomes and profits of said rail road as fully as if this deed had not been made. Article 2nd. In case default shall be made in the payment of any halfyear'-s interest on any of the aforesaid bonds at the time, and in the manner in the coupons issued therewith provided, the said coupons having been presented and payment thereof demand- ed and in case such default shall continue three months, after said coupons became due and payable and demanded, then and there- upon the principietof all the bonds secured hereby shall become immediately due and payable, anything contained in the said bonds or herein to the contrary notwithstanding. Article 3d. The party of the first part shall from time to time, as the same may become necessary, when thereto requested by the trustees, execute all such further deed or deeds of conveyance for the better securing to the trustees herein expressed the said road, and appurtenances and equipments, and all other interest or pro- perty, hereafter to be acquired or owned in anyway. (8) Article 4th. If the party of the first part shall well and truly pay the principal and interest of said bonds and the interest due thereon according to the true intent and meaning of the said bonds and this deed, and shall in all things observe and keep all the agreements and undertakings of these presents, then and in that event all the estate, right, title and interest of the parties of the second part and their survivors and successors in the trust hereby created shall cease and terminate, otherwise to remain in full force and virtue. Article 5th. It shall be the duty of said trustees or such as shall be in office, to take appropriate proceedings in any Court having jurisdiction thereof by way of foreclosure or otherwise to entorce the rights of the bond-holders. And the said indenture of mortgage contained the further clause that the word trustee therein used was to mean the trustee or trus- tees for the time being, and that any such trustee during any vacancy in the office might exercise the powers of all the trustees and that either trustee might resign his office to the other trustee, and that either or both of said trustees might be removed by the vote of the holders of a majority of the bonds actually sold, and that in case of any vacancy in the trusteeship such vacancy could be filled by the surviving trustee and the said rail road company and that any trustee so appointed should be vested with all the rights of the original trustee, and that until any vacancy should be thus filled the act of the remaining trustee should be as valid as if both had acted. The said indenture of mortgage further provided that on any sale of the property of the said company under said mortgage and the payment of the bonds and interest and costs of foreclosure, the surplus arising on any sale should be paid over to said company. Your orators further show that the said mortgage was thereupon and on the nth day of April, 1870, signed by the President and Secretary of the said railroad company, and the corporate seal of the said rail road company was affixed thereto, and the President and Secretary of the said rail road company on the same day dulv acknowledged the execution thereof before the Probate Judge of the county of Burke in the State of North Carolina, and Tod R. Caldwell and Henry Clews endorsed thereon their acceptance of the trust thei'ein contained, and the said mortgage was thereupon duly delivered to the said trustees, and the same was thereupon (9) duly recorded on the 13th day of April, 1870, in the Registrar's Office of the county of Buncombe in Book No. 33, page 225, and was also recorded subsequently thereto, and on the 1st day of June, 1872, in the county of McDowell, and subsequently thereto, and on the 3d day of June, 1S72, in the county of Iredell, and sub- sequently thereto, and on the 4th day of June, 1872, in the county of Catawba, and subsequently thereto, on the 8th day of June, 1S72, in the county of Burke, and subsequently thereto, and on the 14th day of June, 1S72, in the county of Rowan, all in the State of North Carolina, the line of said rail road passing through, and being situated in each of said counties, and said counties con- taining the whole of the property of said rail road company. And your orators further show that after the execution of the said mortgage, the said the Western North Carolina Rail Road Company issued, and delivered the said bonds numbered consecu- tively, and representing one million three hundred and fifty thous- and dollars to divers persons, who as your orators are informed, and believe, advanced to the said corporation the money thereupon according to the purposes expressed in the said mortgage, and that said bonds were accepted, and received by the several persons to whom they were so issued, and delivered in reliance upon the security in, and by the said mortgage contained, and created, and upon good considerations by them respectively paid, and advanced, and said bonds have come into the hands of numerous owners, and holders thereof, who are entitled to the benefit of said mortgage, and the security thereof, upon good and valuable consideration by them respectively paid relying on said security of said mortgage, and that among others, your orator, Hiram Sibley, has for a valu- able consideration, and relying upon the protection of said mort- Sibley's bon- gage, become the owner and holder ot divers of said bonds repres- enting one million and fifty-seven thousand dollars, and is likewise entitled to all the securities provided by said mortgage. That said bonds so received, and held by your said orator, Hiram Siblev, are of the following numbers, and denominations : one thousand and seven bonds of the denomination of one thousand dollars each with coupons attached from July 1870, numbered from 27 to 250 inclusive, 276 to 483 inclusive, 501 to 540 inclusive, 591 to 625 in- clusive, and 701 to 1200 inclusive, also twenty-five bonds of the denomination of one thousand dollars each with coupons attached from January 1871, numbered 676 to 700 inclusive, also two hun- (IO) dred and fifty bonds of one hundred dollars each, numbered from 2651 to 3200 inclusive, with coupons attached from July 1870. That your orators do not know the names of the owners and holders of aO of said bonds, but they allege that the persons owning the same are too numerous to be m.de parties to this suit without exposing the same to great delays and inconvenience from abite ment by death and otherwise. And your orators further show that they are informed and believe '•'> that the interest for two years prior to March 1st, 1872, upon baid bonds, held and owned by your orator, Hiram Sibley, was duly de- manded on the 14th day of March, 1872, from the president of the said Company on presentation of the coupons annexed to said bunds, and payment thereof was refused and that payment thereof has never been made, but the same remains wholly due and unpaid. And your orators further show that your orator, Hiram Sibley, Robert A. Lancaster, H. F. Atkinson, James O. Proudfit, J. Camp bell Maben, who were, and are, each holders and owners of said bunds to amount of at least two thousand dollars, have in writing demanded that the trustees, Tod R. Caldweil and Henry Clews, shall proceed to foreclose said mortgage and collect said bonds. That Tod R. Caldwell refused to take any steps in the matter, and is therefore made a party defendanc herein. And your orators further show that none of the coupons upon the said one million three hundred and fifty thousand dollars of bonds secured by said mortgage, and so issued as aforesaid, have been paid by the said Company. And that they are all due and out- standing in the hands of the various holders of said bonds, and that there has not been at any time since the first of said coupons became due, any moneys whatever at the City of New York, applicable to the payment thereof, and that the whole of said bonds, both princi- pfo^and interest, have hereby become due. McAden claim And your orators further show unto Yonr Honors trafc Rufus Y. McAden have, or claim to have, some interest in, or lien upon the said mortgaged premises or property, or some part thereof, which interest or lien, if any has accrued, subsequent to the lien of the mortgage hereinbefore set forth. And your orators further show that on, or about the day of B Fearjn'rtg't! )e ^ ne Bank of Cape Fear, a corporation organized under the laws of the State of North Carolina, being a creditor of the said (II ) "Western North Carolina Railroad Company, recovered a judgment in the Superior Court of said county of Buncombe, in said State against said Company, for the sum of twenty thousand eight hun- dred dollars, and under said judgment was taking the necessary legal steps to sell the property of the said Company. That such judgment was a lien subsequent to the lien of the mortgage herein- before set forth. That the said Company, on or about the day of November, 1871, agreed to compromise said indebtedness, and to cause the same to be paid off by paying fifty cents on the dollar of said judgment. That not having the money on hand, it agreed with the defendant, Rufus Y. McAden, that the said Rufus Y. McAden should advance the moneys necessary to be advanced, and that at the sale of the property of the said Road, the attorneys of the Bank of Cape Fear should buy in and protect the property of the said Road, and it was then and there further agreed between the said Railroad Company and the said Rufus Y. McAden, that the said Rufus Y. McAden should ^old the lien thus to be acquired, as security for the repay ment of his advances of $10,400, thus to be made as aforesaid. That at Statesville, in the State of North Carolina, a memorandum M ^ten agree- in writing, of said agreement, was at the time made and signed by Charles M. Stedmau, on the pirt of the Bank of Cape Fear, and by S. McDowell Tate, on the part of the Western North Carolina Rail- road Company, arid the said memorandum was then and there hand ed over and delivered to Rufus Y. McAden as a voucher to protect him in such advances. That in pursuance of said agreement, the said The Bank of Cape Fear caused divers sales of all the franchises, property and equity of redemption of the said Railroad Company, to be made at public auction by the sheriffs of the several counties on the line of said 8a te* Road, and the said franchises, property, an I equity of redemption were bidden off in pursuance of said agreement, by Charles M. Sted man, who thereupon held the same in trust. Subject, nevertheless, to the lien of the aforesaid mortgage. And the said Rufus Y. McAden thereupon advanced and paid to the Bank of Cape Fear the sum of $10,400, which he had agreed with the said Railroad Company to advance in satisfaction of its claim, and the said Charles M. Stedman transferred to him the said bids, and the said Rufus Y. (12) McAden held the lien of the said sales, so made as aforesaid, as se- curity for his said advances. That on the 22nd day of June, 1872, at the City of New York, the said the Western North Carolina Railroad Company tendered to said Rufus Y. McAden the amount of his said advance with interest thereon at the rate of seven per cent, per annum, from the time of his making the advance, being the sum of $12,500, and offered to p .y him any expenses in the matter that he had incurred, whereupon the said Railroad Company became entitled to have all sales of its property and franchises under said judgment vacated and set aside. And all tides thereunto standing in the name of the said Charles M. Siedman, Rufus Y McAden, or their assigns, either as original or mesne purchasers at said judgment sales transferred to said Company. That the said the President and Directors of the Bank of Cape Fear have been duly adjudged bankrupts in the District Court of the United States, in and for the District of Cape Fear, in the District of North Carolina. And N. H. D. Wilson, of said State has been duly appointed assignee. Your orators further show that no proceedings at law have been ha 1, nor has any suit or action been commenced by or on behalf of your orators, or any of them, or any of the holders of the bonds of the said Railroad Company, hereiubefore described, to enforce or co lect any mouey secured to be paid the said bonds, and mortgage, or interest thereon, excepting only this suit. And your orators well hoped that no disputes would have arisen, touching the said bonds or the faithful payments of the coupons for interest thereon, as it should become due, but that the defendant, the Western North Carolina Railroad Company, would have com- plied with the reasonable request of your orators, as in conscience and equity it ought to have done. But now, so it is, may it please Your Honors, that the said the foniederr tion. Western North Carolina Railroad Company combining and confede rating the said Rufus Y. McAden and divers other persons at pres- ent unknown to your orators, whose names, when discovered, your orators pray they may be at liberty to insert herein, with apt words to charge them as parties defendant hereto, and contriving how to wrong and injure your orators in the premises. They, the said the Western North Carolina Railroad Company, and Rufus Y. McAden, absolutely refuse to comply with such request, and it, the Western (i3) North Carolina Railroad Company, pretends and alleges as the sole ground of its refusal, that it has no means wherewith to pay said bonds, or the interest thereon, and he, the said Rufus Y. McAden pretends and alleges as the sole ground of his refusal, that he pur- chased at the sheriffs' sales of the property of said Company, under the judgment held by the Bank of Cape Fear, solely for his own use and benefit, and not as trustee for the said the Western North Car- olina Railroad Company ; Whereas, your orators charge the con trary of said pretence to be the truth. All which actings, doings and pretences of the said defendants are contrary to equity and good conscience, and tend to the manifest wrong, injury and oppres sion of your orators in the premises. To the end therefore that the said defendants may, if they can, show why your orators should not have the relief hereby prayed, and may upon their several and respective corporal oaths, and according to the best and utmost of their several and respective knowledge, remembrance, information and belief, full, true, direct and perfect answer make to such of the several interrogatories hereinafter num- bered and set forth as by the note hereunder written. They are res- pectively required to answer, that is to say : 1st. Whether a paper writing was made and executed between Charles M. Stedman and S. McDowell Tate, at Statesville or else interrogato- where, touching the property of the AVestern North Carolina Rail- road Company. 2nd. Whether said writing came into the hands of the defendant, Rufus Y. McAden. 3rd. What were the words of said writing, and the defendants are severally required to (have) annexed a true copy of said writing, their several answers. And that the said the Western North Carolina Railroad Company, Tod R. Caldwell, Rufus Y. McAden and the rest of the confederates, p ^yer for re- when discovered, may come to a fair andjust account with your or- ators and may pay to your orators the amount of the said bonds and interest thereon, and that your orators . may have such further or other relief, or both, in the premises, as the nature of the case shall require, and to Your Honors shall seem meet. May it please Your Honors to grant unto your orators not only the most gracious writ or writs of injunction of the United States, issuing out of, and under the seal of this Honorable Court to be directed to the said (H) Rufus Y. McAdeu, his attorneys and agents, restraining them from proceeding at law or otherwise, in interfering with any of the \ rop erty covered by the mortgage hereinbefore described, but also the most gracious writ of subpoena of the United States of America, to be directed to the Western North Carolina Railroad Company, Ru- fus Y. McAden, Tod R. Ca' dwell, and the rest of the confederates, when discovered, thereby commanding them, and every one of them, at a certain day and under a certain pain, therein to be specified, personally to appear before Your Honors in this Honorable Court, and then and there to answer all, and singular the premises, and to stand to perform and abide such order and decree therein as to Your Honors shall seem meet ; and that the said divers sales of the prop- erty of the said The Western North Carolina Railroad Company may be decreed to have been made for the benefit of the said Com pany, and that said Rufus Y. McAden may be declared to be a trustee of the said the Western North Carolina Railroad Company, and may be required to execute conveyances or releases of the prop- erty of the Company by him purchased ; and that an account m?y be taken of bonds secured by che said mortgage, and the amount due thereon for principJdLand interest, and that the names of the lawful holders thereof may be ascertained. That the trustees Tod R. Caldwell and Henry Clews may be let into the possession of the incomes, tolls and profits of the said the Western North Carolina Railroad Company, and of the franch ises, railroad and premises covered by the said mortgage with nil depots, machine shops, station houses and real estate, locomotives, cars, tools, machinery and other personal property connected with the said company, and appertaining to it or used on or about the operation of said road at the date of said mortgage or at any time since. And that the income of the said railroad may be applied to the payments of the principA&and interest of the bonds secured by the said mortgage, and that the defendants, and each of them, and all persons claiming under them either before or since the commence- ment of this suit may be barred, and foreclosed of all right, claim or lien, and equity of redemption in the said mortgaged premises, and that the said railroad, together with all its franchises, and pro- perty, real and personal in the said mortgage described, and set forth or intended so to be, may be sold under the order and judg- (is) ment of this Court, and the proceeds applied to the payment of the csts and expenses of this action, and any taxes, and assessments that may he upon the property, and then to the bonds hereinbefore described, together with the interest thereon, and in case the pro- ceeds of such sale be insufficient to pay all such bonds, and interest thereon, in full, that then they be paid ratably in whosoever hands they mav be; and in ease the proceeds of said sale shall be in excess of the costs and expenses, and the principdcg^a-nd interest of said mortgage that the surplus may be applied to the payment of any subsequent liens, and the balance over to the said railroad com- pany, and that the defendants, and each of them be adjudged to abide, and perform the orders of this Court in, and about the pre- mises, and that your orators may have such other or further relief or both in the premises as to this Court may seem meet. Chas. E. Whitehead, of Counsel. Note. — The defendant. Rufus Y. McAden, is required to an- swer all the interrogatories in this bill contained. United States of America, State of North Carolina : Whereas, On the 19th day of December, A. D., 1866, the General Assembly passed and ratified an Act the second section of - which is the following words : "Entitled an Act to enhance the value of the bonds to be issued for the completion of the Western North Carolina Railroad, and for other purposes." Section Second : Be it further enacted that the President and Directors of the Western North Carolina Railroad Company be and they ° r gage are, hereby authorized and empowered to issue bonds of the com- pany, and running for such term of years as they may deem expe- dient, and bearing interest at rate not greater than eight per cent, per annum, and to make, execute and deliver a deed or deeds of mortgage, conveying the whole or portion of the right, titles and interest of the company in any, or all the estate both real and per- sonal, belonging to- said company or in any manner pertaining to the same, to the purchase or purchasers of. said bonds of the com- pany, and conditioned for the payment of said bonds at maturity, and also to pledge the profits of said company or so much thereof as mav be necessary, for the payment of the interest on said bonds as it falls due, and said bonds shall be issued by said President and Directors whenever it shall appear to them necessary for the com- (i6) pletion of said road to raise other funds in addition to the State's subscription, and the proceeds arising from the sale of said bonds shall be applied for the purpose of finishing the road to its western terminus; And wherfas, at a called meeting of the stockholders of the Western North Carolina Railroad Company, held at Statesville, in the county of Iredell in said State of North Carolina, on the 21st day of February, A. D., 1867, the said stockholders in full meeting, and being duly called together for that purpose, ratified, and duly accepted, and adopted said act as an amendment to the charter of said company. And whereas, the President and Directors of the said Western North Carolina Railroad Company determined that it was neces- sary to raise other funds in addition to the State's appropriation, and subsci'iption of stock and other assets of the company to com- plete said railroad to its western terminus at Asheville, and at the meeting of said Board, the said President and Directors of the Western North Carolina Railroad Company duly called and held at Morganton on the 8th day of January, A. D., 1S70, did resolve, to issue fourteen hundred thousand dollars of coupon bonds of said company under the authority of the said amended charter as amend- ed by said act of 19th December, A. D., 1866, the bonds to bear eight per cent, interest payable every six months, and to run for twenty years, the bonds to be of the denomination of one thousand dollars, and one hundred dollars, all to be secured by a mortgage, or deed in trust on, all the l'oad, road bed, charter, iron, cars, en- gines, depots, rights of way, franchises, rights, credits, and all pro- perty, real and personal belonging to said railroad company, in- cluding all the railroad in running as well as that graded, and be- ing graded, including the entire line from Salisbury to. Asheville, and all the property, real and personal that the said company has, and owns, and any, and all that they may have, or acquire in fu- ture, as appurtenant to said railroad conditioned for the payment of said bonds at their maturity, and pledging the profits arising from the road for the payment of the interest from time to time as it falls due. And it is ordered by said President and Directors to make said mortgage or deed in trust to Tod R. Caldwell, of the county of Burke, in the State of North Carolina, and Henry Clews, of the city and county and State of New York, as trustees for the (*7) use and benefit of the purchasers or holders oF said mortgage bonds, and that the bonds be made payable to Kemp P. Battle, of the city of Raleigh, in the State of North Carolina, or bearer, and payable in the citv of New York; and that coupons be attached payable half yearly at the rate of eight per cent per annum; Now therefore, this Indenture made, and executed this 1st day of March, A. D., 1870, between the Western North Carolina Railroad Company, a corporation duly incorporated under, and by virtue of the laws of the State of North Carolina, and located, and doing business within said State, thereto authorized by the acts of the General Assembly of the State of North Carolina, and by the resolution of the stockholders of said incorporation, and by the re- solution, and order of the President and Directors as aforesaid of said incorporation, party of the first part, and Tod R. Caldwell, of the town of Morganton, in the county of Burke, and State of North Carolina, and Henry Clews, of the citv and county of New „ J ~ - Mortgage. York, in the State of New York, parties of the second part, wit- nessed! that the said party of the first part for the purpose of se- curing the payment of the bonds and the interest due, and to be- come due thereon, as the same shall become due and payable ; which bonds are issued by the said party of the first part by virtue of the provisions of the law herein set out, and by virtue of the resolutions of the stockholders, accepting the same, and by the order of the president and directors of the same as above set forth. Which bonds amount in the aggregate to the sum of fourteen hundred thousand dollars, bearing interest at the rate of eight per cent, per annum, payable semi annua'ly. Both principfo^-and interest being piyable in the City of New York, of which twelve hundred are of the denomination of one thousand dollars each, twenty hundred of tne denomination of one huudred dollars each, and all bearing even date with these present", and payable on tiie first day of January, A. D., Eighteen Hun Ired and Ninety, with interest due 1st day of January and 1st day of July in each and every yea*, and of the tenor words and figures fallowing, viz. : united States of America, State of North Carolina : First mortgage bonds $1,000, or $100. No - For value received, on the first day of January, Eighteen Hun- dred and Ninety, the Western North Carolina Railroad Company promises to pay to Kemp P. Battle, or bearer, in the City of New ' (i8) York, one thousand dollars, or one hundred dollars, with interest thereon, at the rate of eight per cent, per annum ; which said inter- est shall be payable semi-annually in the said City, on the 1st days of January and July in each and every year hereafter, upon the sur- render of the proper coupons thereto attached. The holder of this bond is secured by a first mortgage duly executed and delivered to Henry Clews and Tod R. Caldwell, conveying to them the Railroad, one hundred and forty miles in length, extending from the city of Salisbury to the town of Asheville, in the State of North Carolina, and all the property of the said Company at, and between, said ter mini, in trust for the full and final payment of this bond, and such others as may be issued by said Cmipmy, not to exceed one million and four hundred thousand dollars, under authority of an act of the General Assembly of the State of North Carolina, ratified the 19th day of December, A. D., 1866, and accepted by said stockholders in Mortgage. accordance with their charter, on the 21st day of February, A. D., 1867. This bond shall not be valid until if shall be authenticated by cer- tificate of the trustees or their successors, endorsed thereon. In . witness whereof, the said Company have caused this bond to be at- tested by the signatures of their president and secretary, and sealed with their corporate seal in the city of Salisbury, North Carolina, this, first day of March, Eighteen Hundred and Seventy. [seal.] J. J. Mott, President. Attest : H. C. Cowles, Secretary. The proper coupons being attached to each bond for the payment of the semi-annual interest to become due thereon, and the same duly signed by the treasurer of the said party of the first part, and each and every one of said bonds being endorsed as follows : The Western North Carolina Railroad Company : First mortgage bonds, priricipJelpayable 1st of January, 1890. No. $1,000, or $100. Interest 8 per cent, payable 1st of January and 1st of July in each year, in the City of New York, and having upon it the following trustee certificate : We hereby certify that this is one of a number of first mortgage bonds amounting in the aggregate to fourteen hundred thousand dollars secured by the deed in trust within mentioned, executed and delivered by the Western North Carolina Railroad Company to us as trustees. Trustee. Trustee. ::} r*9) In consideration of the priimises aforesaid, as well as for and in consideration of the sum of one dollar to the party of the first part in hand p:iid by the parties of the second part, • at and before signing, sealing and delivering of these presents. The receipt whereof is hereby acknowledged, and in order to secure the payment of principie-and interest of the bonds as aforesaid issued, or to be issued as herein provided and accepted, and every part of said prin- j| ortsagei cip&Land interest as the same shall become due, and payable accord ing to the tenor and effect of said bonds and coupons thereto at- tached, hath granted, bargained, sold, aliened, transferred and con- veyed, and by these presents doth grant, bargain, sell, alien, transfer and convey unto the said parties of the second part as joint tenants, and not as tenants in common, and to the successor, or successors, or survivor, of them in trust, and to the assigns of them, the said parties of the second part, and to the assigns of the successor, or successors, or survivor of them in trust, all and singular, the Rail road of the said party of the first part, known and designated as^the Western North Carolina Railroad, extending from the terminus thereof, in the city of Salisbury, to the terminus thereof, at Ashe- ville, in the State of North Carolina, and being about one hundred and forty miles in length, embracing all the railways, ways, rights of way, depot grounds and other land, all tracks, bridges, viaducts, culverts, fences and other structures, all depot houses, station houses, and other buildings, all machine shops and other shops, whether now held, or hereafter built or acquired, fur use in connexion with the said Railroad hereinafter described, and inclu- ding also all locomotives, tenders, cars and other rolling-stock, or equipments, and all machinery, implements, tools, fuel, and tools for construction, on any of its equipments, or appurtenances, whether now held, or hereafter acquired,, all of which things are hex'eby de- clared to be appurtenances and fixtures of said Railroad, together with all corporate franchises necessary and proper to enable the parties of the second part, their assigns and successors, to have, hold, use, repair and operate said Railroad, together with, all 'and singular, the tenements, hereditaments and appurtenances, franchis- es, and rights thereto belonging, and the reversions, remainders, rents and profits thereof, to have and to hold the said Railroad, equipments and appurtenances and property unto the said parties of the second part, as joint tenants, and not as tenants in common (20) And to the successor, or successors, or survivor of them, in trust and to the assigns of them, the said parties of the second part, in, trust, and to their assigns and to the survivor or successors, and the Mortgage. assigns of such in trust, and to the ouly proper use and behoof of the said parties of the second part, and to their survivor, successor or successors of them in trust, an 1 their assigns, in trust, neverthe less, to have and to hold the same upon the conditions and for the purposes hereinafter generally expressed ; to wit : ARTICLE FIRST. Until default shall be mide in the payment of the principle, or interest, of said bonds, or some or any of them, or until default shall be made in respect to something, by these presen's required to be done or kept by said party of the first part, the said party of the first part shall be suffered and permitted to possess, control and op erate the said Railroad, and every part and parcel thereof, and its appurtenances. And to take and use the tolls, rents, incomes and profits of said R dlroad as fully as if this deed had not b^en made. ARTICLE SECOND. In case default shall be male in the payment of any half year's interest on any of the aforesaid bonds, at the time and in the man- ner in the coupons issued therewith, provided the said coupons hav ing been presented and payment thereof demanded, and in Ysasesnch default shall continue three months after said coupons shall have become due and payable, and demanded then thereupon, the prin ciple of all the bonds secured hereby shall become immediately due and payable, an3'thing contained in the said bonds, or herein, to the contrary, notwithstanding. ARTICLE THIRD. The party of the first part shall from time to time, as the same may become necessary, when thereto requested by the trustees, exe- cute all such further deed, or deeds of conveyance for the better se- curing to the trustees herein expressed. The said Road and appur tenances and equipments, and all other interest, or property, here- after to be acquired or owned in any way. ARTICLE FOURTH. If the party of the first part shall well and truly pay the princi- pteumd interest of said bonds, and the interest due thereon, accord- Mcrtgage. j n g to t j ie true m t e nt and meaning of the said bonds, and this deed, (21) and shall in all things observe, and keep all the agreements, and understandings of these presents, then, and in that case, all the estate, rights, title, and interest of the parties of the second part, and their survivor, and successors in the trust hereby created, shall cease, and to terminate, otherwise, to remain in full force and virtue. ARTICLE FIFTH. It shall be the duty of said trustees, or such as shall be in office, to take appropriate proceedings in any Court having jurisdiction thereof, by way of foreclosure, or otherwise, to enforce the rights • of the bondholders. Provided, however, that such enforcement of the rights of the bondholders shall be upon the requisition in writing, of not less than five bondholders, to whom, at least, ten thousand dollars worth of said bonds belong in their own right. ARTICLE SIXTH. It is mutually agreed that, the word trustee as used herein, shall be construed to mean the trustee, or trustees for the time being, whether either, or all, be original, or new, and when any vacancy shall exist to mean the surviving, or continuing trustees, and such trustee during any such vacancy be competent to exercise all of the powers by these presents granted to, or conferred upon the parties of the second part; And it is mutually agreed that neither of said trustees shall in any manner be responsible for any default, or misconduct of the other trustee; Further, that said trustees shall be entitled to just compensation for any services rendered, to be paid by the party of the first part; That either of said trustees, or any of their successors, may resign, and discharge himself from the trusts created by these presents, by notice in writing., Xo the party of the first part, and to the surviving trustee (if there be such) for thirty days before such resignation shall take effect, or such shorter time bs they may accept as adequate notice; that either, or both, of said trustees may be removed by the vote of the holders of a majority of the bonds that may have been actually sold, such vote being had at a meeting of the bondholders, convened on a call by the holders of not less than one hundred thousand dollars in interest in said bonds, on notice of thirty days, published in two newspapers, one, published in the city of New York; and one, Mortgage, published in Raleigh, North Carolina; and the said votes being attested under the hands of the persons so voting : That in case of a vacancy in said trusteeship from any cause, a successor may (22) be appointed in manner following, to wit : such vacancy m \y be filled by the surviving trustee, together with the party of the first part; in case of a disagreement between such remaining trustee, and the party of the first part, the same may be settled by an umpire, to be chosen bv said trustee, and the party of the first part, and appointment of such umpire shall be conclusive; and in default of such agreement and appointment, the Superior Court of any of the counties through which the said railroad passes, at the instance of any party in interest or petition. Any appointment of trustee, or trustees, made in either of these modes above indicated shall be valid, and operative to all intents, and purposes, and the trustee or trustees so appointed shall there- upon become subrogated to all the rights, duties, privileges, and responsibilities of the original trustee, or trustees, as specified and conferred in, and by, these presents; During the time intervening between the death, resignation, or removal of any trustee, and the appointment of his successor, the acts of the remaining trustee shall in all respects be considered, and held as valid and binding, as if both of the trustees herein contemplated, and named, were in the full exercise of their office and discharge of their duties; And it is hereby mutually agreed and understood between the parties that if at any time proceedings in Court for foreclosure, or otherwise by said trustees, or successors, and judgment rendered therein, for any defa .It on part of the party of first part, and after full payment of such judgment by sale of railroad, and appurten- ances, and .on payment of all said bonds, interest, costs and charges, then to pay over any surplus to the party of the first part, or to the assigns of said corporation. In witness whereof, the said party of .the first part hath caused its coporate seal to be hereunto affixed, and these presents to be signed by its President, and attested by its Secretary at the pri'ii- Complaint. cipal office of gaic j party of ^ firgt p-^ and j n the tQWn Q f States- ville in the State of North Carolina, this ist day of March, One Thousand Eight Hundred and Seventy. [Corporate Seal.] J.J. Mott, President. Attest : H. C. Cowles, Secretary. Signed, sealed and delivered in the presence of (23) TRUSTEES ACCEPTANCE. We, the trustee?, named in the foregoing Deed of Trust, or Mortgage, do hereby signify our acceptance of said office of trustees, with all the powers, and duties, and for the purpose in said Deed of Trust, or Mortgage, mentioned and contained. Witness our hands and seals this ist day of March, Eighteen Hundred and Seventy. Tod R. Caldwell, [SEAL.] Henry Clews, [SEAL.] In presence of N. W. Woodfin, Henry Clews. L. A. Taylor, T. R. Caldwell. State of Maryland, City of Baltimore : Be it remembered that on the second day of April, in the year of Our Lord, One Thousand Eight Hundred and Seventy, before me comes N. W. Woodfin, the subscribing witness to the foregoing instrument, tp me, personally known, who on oath duly proves the execution thereol, by Henry Clews, for the pur- poses therein expressed. In witness whereof I have hereunto set my hand and official seal at Baltimore, the day and year aforesaid. W. W. Latimir, A Commissioner for North Carolina, residing in Baltimore City. Maryland. State of North Carolina, Burke C'ou?ity : Be it known that on this the nth day of April, A. D., 1870, personally ap- peared before me, F. D. Irvin, Probate Judge for Burke county, and State of Probate of North Carolina, J. J. Mott, President of the Western North Carolina Railroad, Mort S a S e - and Tod R. Caldwell, each for himself, who do say and acknowledge that thev did sign the foregoing instrument for the purpose therein contained, and that the signatures are in their respective genuine hand writing, and is their act and deed. In witness whereof I do hereunto set my hand and seal of office at office in Morganton on the day and year above written. [Seal.] F. D. Irvin, Probate Judge for Burke County. State of North Carolina,) Registfr Office. Buncombe County. ) This is to certify that the foregoing and within Deed of Trust or Mortgage, and certificates of Probate, was this day received at 3 o'clock P. M., and regis- tered in Book 33, Page 225, at this office in Asheville, this the 13th day of April, A. D., 1870. W. S. Roberts, Register of Buncombe County. State of North Carolina, ) D ^ OTrt „, r^™^ t»t t^ /-> r Registers Office. McDowell County. ) This is to certify the foregoing and within Deed of Trust or Mortgage, and certificates of Probate, was this day received at 2^ o'clock P. M., and register- ed in Book 7, Page 116". at office in Marion this ist day of June, 1872. A. L. Finley, Register for McDowell County. State of North Carolina, ) Register's Office, Iredell County. ) June 3rd, 1872. This is to certify that the foregoing Mortgage and the certificates of the Judge of Probate, was this day received and duly registered at 6 o'clock P. M., in Book No. 4, Page 888. W. D. Summers, R. D. for Iredell County. State of North Carolina,) Register's Offce, Catawba County. ) June 4th, 1872. This is to certify that the foregoing Mortgage and the certificates of the JudgP of Probate was duly recorded and duly registered at nine o'clock A. M., in Probate of Book 8, Page 236. J. M. Brown. Register of Deeds, Mortgage. f or Catawba County. State of North Carolina.) Register's Office Burke County. J June 8th, 1882. This is to certify that the foregoing Mortgage and certificates of Probate was this day receis'ed and duly registered at 12 o'clock M., in Book C, Page 261. W. T, Horbivson. Register of Burke County. State of North Carolina,) Register's Offce, •Rowan County. )' June 14, A. D., 1872. This is to certify that the foregoing Mortgage or Deed in Trust and certifica- tes of Probate is this day received at 4 o'clock P. M., and duly registered in Book No. 46, Page 304. Obadiah Woodson, Register ot Deeds, / for Rowan County. And at rule day in October, 1872, the following answer of the Western North Carolina Railroad Company and A. H. Erwin, John Rutherford, Hiram Kelly, James Greenlee, Mary Carson, to wit, was filed : Circuit Court of the Uuited States for the Western District of North Carolina : Henry Clews and Hiram Sibley, against The Western North Carolina Railroad Com- pany, (Eastern Division,) Tod R. Caldwell, Rufus Y. McAdeu, The First National \ Bank of Charlotte, John Rutherford, Hi ram Kelly, Thos. Y. Greenlee, James Greenlee. Mary Carson, A. H. Erwin and W H Wilson, assignees of Bank Cape Fear. Answer of w. ^° ^ ne Honorable, the Judges of the Circuit Court of the United n.c. r. r. Co States, within and for the Western District of North Carolina, sitting in equity : The answer of the Western North Carolina Railroad Company, one of the defendants to the bill of complaint of Henry Clews and Hiram Sibley, plaintiff, filed in this Court against said defendant, Tod R. Caldwell, Rufus Y. McAden, First National Bank of Char- lotte, John Rutherford, Hiram Kelly, Thos. Y. Greenlee, James Greenlee, Mary Carson, A. H. Erwin, and N. H. D. Wi'.son, assignee of the Bank of Cape Fear. Tlvis defendant reserving all rights of exception to the said bill, ( »5 ) for answer saith that it is trae that the plaintiffs, Henry Clews and Hiram Sibley, are citizens of the State of New York, and that this defendant, the Western North Carolina Railroad Company, (Eastern Division,) is a corporation created under and by virtue of the laws of the St *te of North Carolina, having its property and business in said State, and being a citizen thereof, and that the other defend- ants in this case are citizens of the State of North Carolina. This defendant admits that the Western N >rth Carolina Railroad Company was, at the time mentioned in said bill of complaint, and still is, a corporation created under and by virtue of an act of the State of North Carolina, ratified in General Assembly of said State February the 15th, 1855, entitled ''an Act to incorporate the Western North Carolina Railroad Company," and of a law of the State of North Carolina, passed and ratified by the General Assembly of said State on the 19th day of December, 1868, entitle 1, "an Act to en- bance the value of the bonis to bi issued for the completion of the Western N ath Carolina Railroad and for other purposes," and of all of which acts were accepted by the stockholders of the Company in accordance with the terms of of the charter, and of the divers acts of the same State, amendatory thereof, with the power conferred by the said acts, and the general law of the State to acquire lands for the purpose of a Railroad from the town of Salisbury to some point on the French Broad River beyond the Blue Ridge, and to construct said Railroad, and to acquire and use such locomotives, cars, and chattels, and other property as might be necessary for the use and operation of said Road, and the transaction of the business of trans- porting property and passengers, and the doing of such other busi- ness as it might properly do in connection therewith. The defendants further admit, that the said corporation had pow- er, at the times designated in said bill, under the said several acts, and the general laws of said State, to borrow such sums of money as might be necessary for constructing, equipping, completing, fin- ishing, and operating said Road, and for the purchase of loco- motives, cars, and other machinery for the proper running and operating said Road, and for that purpose it was author- ized and empowered to issue bonds of said Company for such term of years as the president and directors might deem expedient, bear- ing interest not greater than eight per cent, per annum, and to make, execute and deliver a deed or deeds of mortgage, conveying a whole or (26) a portion of the rights, titles and interest of the C< mpany, in any or all of the estate, both real and personal, belonging to said Company, or in any manner pertaining to the same, to the purchaser or purchaseis of said bonds, and conditioned for the payment of said bonds at maturity, and that snoh bonds should be issued by the president and directors of said Company, whenever it should appear to them ne- cessary, for the completion of said Road, to raise other funds besides the stock subscribed. The defendant admits the president and directors of said Compa- ny took the necessary steps to procure the lands ne -essary for the roadway of said Railroad, and have constructed and equipped a Rail road from the town of Salisbury to Old Fort, in the county of Mc Dowell, a distance of one hundred and fourteen miles, or thereabouts, and which is in full operation for the transportation of freight and passengers thereon, and the said Company have likewise done a large portion of the grading, bridging, and work upon the tunnels, be- tween Old Fort and the French Broad River, in amount near one million of dollars. That in the prosecudon of the affairs of said Company in the construction of said Railroad it became necessary for the said Company to borrow for the purpose of constructing, equipping and completing said Railroad, and for the purpose of pay ing contractors for work already done on the line of said Railroad, the sum of fourteen hundred thousand dollars. And it appeared necessary co the president and directors of the i^aid Company, that for the completion of said Road, to raise the said amount in addition to the stock subscribed. That in order to procure the said sum of money the president and directors of said Company on the 8th day of January, 1870, in pursuance of, and in conformity with, the va- rious acts of the General Assembly of the State of North Carolina, incorporating the said Company, and other acts amendatory thereto, and in virtue of the power and authority given such corporation by the general law of the State, did resolve to issue fourteen hundred thousand dolhrs of coupon bonds of said Company, to bear eight per cent, semi annual interest, and to run for twenty years, to be of the denominations of one hundred dollars and one thousand dollars. And did order that the same shall be secured by a mortgage or deed of trust, to Tod R. Caldwell and Henry Clews, as trustees, on all the road, road-bed, charters, iron, cars, engines, depots, right of way, franchises, rights, credits, and all property, real and personal, be longing to said Company, including all of said Railroad in running, (27) as well as that graded and being graded, including the entire line from Salisbury to Asheville, and all the property, real and per sonal, which the Railroad Company had, or might acquire subse- quently, as appurtenant to said Railroad, conditioned for the pay- ment of said bonds at maturity, and pledging the profits of the Road for the payment of the interest from time to time, as it might fall due» That in pursuance of the resolve of .the said Board of Directors, on the ist day of March, 1870, the said railroad company did make and execute its several bonds to the aggregate amount of fourteen hundred thousand dollars bearing interest at eight per cent, per annum, pavable semi-annually on the first days of January and July ineach'and every year, both principle and interest payable in the city of New York, twelve hundred of which were ot the deno- mination of one thousand dollars each, and twenty hundred of the denomination of one hundred dollars each, all bearing date March 1st, 1S70, and payable January ist, 1S90, with coupons attached, and payable as charged in the complainant's bill. That the bonds aforesaid were attested by the signatures of the President and Sec- retary of the said company with its corporate seal affixed to each bond, and the coupons aforesaid were assigned by the treasurer ot the said company, and that the said bonds were authenticated by the endorsement of the certificate of the trustees named in the mortgage, viz : Tod R. Caldwell and Henry Clews, excepting five hundred bonds of the denomination of one thousand dollars each, which did not h*ve the certilicate of Tod R. Caldwell, one of the trustees, and which are nOW held by the plaintiff, Hiram Sibley, and excepting also five hundred of the said bonds of the denomination of one hundred dollars- which were left, and are yet in the hands of Henry Clews, trustee as aforesaid, and which said last named five hundred bonds have not been issued or otherwise used by said company. That on the rst day of March, 1S70, the said Western North Carolina Railroad Company made, and executed a mortgage deed of that date between said company as parties of the first part, and Tod R. Caldwell and Henry Clews as trustees, parties of the second part, which is referred to in complainant's bill, and its substance and effect therein stated as this respondent believes cor- rectly, and was registered in the several counties at the times and in the manner therein charged. (2S) That for the purpose of raising money for the use, and benefit of the company in the construction of their said road, and for pay- ing contractors for work and labor done on sail road the said com- pany paid, and delivered to John Malone & Co., one hundred and eightv-three thousand dollars of the said bonds, which were re- ceived by them in part payment of a debt due thern as contractors for work and labor done on said road, the particular numbers and denominations of which bonds are not now recollected, but which he is informed, and believes to be the same bonds now held bv Rufus Y. McAden, one of these defendants. The defendant likewise was indebted to Richard Norris & Son, of Philadelphia, seventeen thousand dollars, or thereabouts for an engine, and other machinery for the use of the company of a date prior to the war, and the said company for the purposes of securing the said debt, and interest, executed to the said Norris & Son, three notes of equal amount, each payable at six, twelve and eighteen months respectively, aggregating the whole amount of the debt, and interest, and at the same time as a farther security for said debt the said company delivered over, pledged, and hypothecated twenty-four thousand dollars of the said mortgage bonds, to be held as collateral security for said debt of the company, which the defendant is informed, and believes the said Norris & Son yet hold. That the said railroad company was indebted to the Tredegar Company, of Richmond, Virginia, to the amount of about seven thousand dollars for chairs and spikes used in the construction of the said railroad, and for the purpose of securing the same the note of the railroad company was executed to the Tredegar Company for the amount due, and ten thousand dollars of the bonds aforesaid were pledged, and hypothecated therewith as security for the same. That for the purpose of raising money to discharge interest past due upon the loans made in New York the company borrowed of the North Carolina Railroad Company thirteen thousand dollars, and executed its bond for that amount, and pledged, and hypothec- ated thirty-nine of the aforesaid one thousand dollar bonds as sec- urity for the same. That for the purpose of raising money to discharge a portion of the principle and the accrued interest upon the loans due by the rail road company in New York, the company borrowed of the First National Bank, of Charlotte, about eleven thousand dollars at one time, and five thousand dollars at a subsequent period, for which (2 9 ) two loans the notes of the company were given, and thirty-six thousand dollars of the mortgage bonds afore aid were pledged, and hypothecated for t':c security of these loans. That the defendant the Western North Carolina Railroad Com- pany borrowed from the New York Warehouse and Security Company in the year 1S70, one hundred thousand dollars, and about the same time a further sum of one hundred and twenty-five thousand dollars was boiTowed by the said railroad company from the New York Guaranty and Indemity Company, which sums were for the proper uses of said company, to wit : purchase of rails for the track, and other needful expenditures, for which loans the said company executed bonds with the usual provisions of what is called a "stock note," and hypothecated six hundred thousand dollars ot the aforesaid mortgage bonds, and placed in escrow five hundred thousand dollars more of the same bonds which has not the signature of Tod R. Caldwell, trustee, as collateral securit}-. For these loans the transaction, by agreement of the lenders of the monev, being a joint one, the loans after falling due, were re- newed bv payment of a portion of the principle, and a surrender of fortv three of the completed one thousand dollar bonds, leaving in the hands of the Warehouse and Security company, and the Gauranty and Indemnity company, five hundred and fifty-seven thousand dollars of the complete bonds, five hundred thousand dollars of the bonds lacking one of the trustees' signature after the maturity of the notes, say 6th February, 1872, the total debt and lien upon the bonds was about two hundred and forty-one thous- and dollars. Messrs. Lancaster. Brown & Company, of the city of New York, agreed to, and did lend the said railroad company the exact sum then due the Warehouse and Security, and the Gaur- antv and Indemnity Company with which said past due bonds were liquidated, the said railroad company then entering into bond ■with said Lancaster, Brown and Company for the payment of the money thus advanced within thirty days, and pledging, and hypo- thecating the five hundred and fifty-seven complete bonds as well as the five hundred incomplete bonds as collateral security for the same, and at the same time and as a part of said transaction. The said Western North Carolina Railroad Company did enter into a written agreement with the said Lancaster, Brown & Com- pany in relation to the sale of said bonds in case the said company should fail to pay the amount advanced by them at the time stipu- (30) lated, which will more fully appear by reference to said . written agreement, a copy of which is hereto appended marked " A." and prayed to be taken as a part of this answer; That the foregoing statement truly represents the manner, and the persons to whom all the aforesaid bonds were issued, and the purposes for which they were issued by the said Western North Carolina Railroad Company, and the defendant is informed, and believe that all of the said parties to whom any and all of said bonds were issued still hold the same, in the same manner, and for the same purposes as hereinbefore stated, except the said John Ma- lone & Company, who have transferred theirs to R.ufus Y. Mc- Aden aioresaid, and those hypothecated with Lancaster, Brown & Company, which this defendant is informed, and believes the said Lancaster, Brown & Company have sold under the power and authority given them in their written agreement aforesaid as shown by exhibit " A," and that the defendant did not sell any of the bonds to plaintiff Sibley; That all of the said bonds now claimed in said bill as the property of Hiram Sibley are the same bonds pledged, and hypothecated to the said Lancaster, Brown & Co The defendant admits that none of the said bonds so issued by the railroad company or the interest accruing thereon so secured by the said mortgage deed have been paid, and that the principle, and interest attached of .ill the said bonds is yet due, and owing by the company. The defendant admits that the interest due prior to March 1872, upon the said bonds represented to be held and owned by the plaintiff Hiram Sibley, was duly demanded on the 14th day of March, 1S72, from the President of the said company on presenta- tion of the coupons annexed to said bonds, and payment thereof refused for the reason that the said company had no funds with which to pay the same, and that payment thereof has not been made, but that the same remains wholly due and unpaid. The defendant admits that the Bank of Cape Fear did obtain a judgment in Buncombe Superior Court in the year 1871, for about twenty one thonsand dollars, and that attorneys of the said Bank did insist upon the collection of the same, even by a sale of the franchise and other property of this defendant, and that this defendant, through its president, Sam'l McD. Tate, sought and effected a compromise of the amount of said judgment with Ckarles M. Stedman, agent and (30 attorney tor said Bank, whereby he agreed to accept ten thousand fonr hundred dollars as a full discharge of said debt, and did further agree that in case the defendant could not raise the funds necessary to pay the said sum of ten thousand four hundred dollars, and he should be forced to sell the said Koad and its franchises, that he, the said Stedman, would bid it off, and would thereafter transfer the same to Sam'l McD. Tate, in trust for the creditors of the Railroad Company, and the remainder, if any, to the stockholders upon re ceiving the said sum of ten thousand four hundred dollars due the Bank of Cape Fear under the compromise. After this agreement and before the sale, the president of the Road had an interview with the defendant, Rufus Y. McAden, and informed him of the agree ment made with the agent of the Bank, when he advised the presi- dent, as a lawyer, that he had better modify his contract with the agent of the Bank, and have property transferred to some other in- dividual than Sam'l McD. Tate, who was the president of the Com- pany, whereupon, upon further conference with the said agent of the Bank, at the suggestion of the president, did agree that the said agent should transfer his bids to several of the large and prominent creditors of the Railroad Companj 7 , instead of Sam'l McD. Tate, and the said Stedman as agent aforesaid, did then and there execute and deliver to said McAden a written agreement to that effect, and which said paper writing is now in possession of the said McAden, as this defendant is informed and believes, and the said McAden gave checks to the agent of the Bank for the amount he had agreed to take for the judgment, to-wit : ten thousand four hundred dollars, and took possession of the agreement as heretofore stated, profess- ing to act as the agent and friend of the said creditors named in the agreement, and for their use and benefit. That on the next day thereafter, to wit : the day of Novem- ber, 1871, the sheriff of Iredell county duly sold the franchise, road- bed, depots, real estate, and all appurtenances within said county, under said execution, and others, whom Charles M. Stedman, afore- said, became the purchaser at the sum of about eight hundred dol- lars, and took the receipt of the sheriff for the purchase money, and subsequently thereto the said Charles M. Stedman, by himself or his agents, purchased the other portions of the road-bed, depots and other property belonging to the Company in the counties of Rowan, Burke, McDowell and Buncombe, at sales made by the sheriffs of (32) the respective counties, under the said execution, and took their respective receipts for the purchase money, and subsequently took the several sheriffs' deeds for his said purchases, and as this defend ant is informed and believes, that, afterwards the said McAden be- came the purchaser of the claim or debt of John Malone & Co., who were supposed to be the largest creditors named in the agreement, and the said Stedman in pursuance of, and in conformity with, the agreement made before he had become the purchaser of the proper- ty, did convey all interest he had acquired by the purchases in said franchises, road-bed, depots and other property belonging to said Railroad Company to the said McAden, upon the same trusts and conditions mentioned in said original agreement, or intended to do so by said conveyance as this defendant is informed and believes. That it is true that after the defendant had ascertained that the said McAden was setting up an individual claim adversely to the interest of the said creditors, acquired by said agreement with said Stedman, and adversely to the interest of the bondholders under the mortgage, did on the 22nd day of June, 1872. in the City of New York, tender to the said Eufus Y. McAden twelve thousand five hundred dollars, being the principle, and interest at seven per cent., upon the sum advanced in payment of the Cape Fear Bank judg- ment, and likewise offered to pay him any other expenses he had incurred in the matter, which he refused to accept. The defendant denies all fraud, collusion, or confederation with the said McAden, or with any other persons, and disclaims any purposes to injure or unlawfully hinder and delay the plaintiff or any other person holding the said mortgage bonds, and avers that the same has not been paid by the defendant in consequence of the want of funds and its entire inability to raise the necessary funds to pay the interest promptly, and having answered all the facts and avfrments contained in the plaintiff's bill of complaint, which it is advised is material to answer, now submits to such orders and decrees as may be deemed just and proper in the premises by this Honorable Court. Prays to be dismissed with reasonable costs, &c, &c. B. S. G-aither, as of Ccunsel. Sam'l McD. Tate, President of the Western North Carolina Railroad Com- pany, maketh oath that he has read the foregoing answer and knows the con- tents thereof. That the facts set forth therein as of his oAvn knowledge are true, and those upon information and belief he believes to be true. Sam'l McD. Tath. Sworn and subscribed to before me October nth, 1S72. Jxo. W. Payxe, Clerk. { 33 ) EXHIBIT A. flitv, fjownty ti'/irf State of 3STew 2~®rk,~SS. Having this day confided to the charge, custody, and management of Messrs. Lancaster, Brown & Company, of New York city, the following described property belonging to the Western North Carolina Railroad Company, to-wit : first mortgage bonds of the said the Western North Carolina Railroad Com- pany, in the aggregate of the value of one million and fifty-seven thousand dollars, exclusive of" the matured coupons thereto attached, and the said Lan- caster, Brown & Co. having this day advanced to the said the Western North Carolina Railroad Company upon the same the sum of two hunched and forty thousand four hundred and seventy one dollars and sixty -eight cents. In consideration of the said advance, and the services of the said Lancaster, Brown & Co., in and about the same, the said the Western North Carolina Railroad Company does hereby agree to and with the said Lancaster, Brown & Co., to refund said advance, with interest thereon at the rate of seven per cent, per annum within thirty days from the date hereof; and that for such advance and interest, together with the charges and commissions hereinafter mentioned, as well as for all other sums due or owing or to become due ©rowing to the said Lancaster, Brown & Co., from the said the Western North Carolina Railroad Company, the said Lancaster, Brown & Co., shall have a Hen prior to all other claims upon the said property and proceeds thereof. Further that the said Lancaster, Brown & Go., shall not be liable for any loss ot injury resulting from depreciation or from any cause other thai the gross negligence of them, the said Lancaster, Brown & Co., which may happen to the bonds above referred- to whilst they remain in the custody of the said Lan- caster, Brown & Co. Further that if at the expiration of the period fixed for the payment of this advance the same remain unpaid then, and in that event the said Lancaster, Brown & Co., snail have the right to sell said bonds or so many of them as may be m.ccessary to repay said advance, and all interest, commissions, and expenses at public outcry in the city of New York, on the fourteenth day of March, 1S72, by Albert H. Nicolay, public auctioneer, at his place of public sale, in said city, between the hours of 12 M. and 2 P. M., at which public sale, the said Lancas- ter, Brown & Co., if so minded, may become public bidders, and receive the proceeds of such sale which shall be applied in the first place to the payment in full of whatever may then be due to the said Lancaster, Brown & Co. The foregoing to be held and regarded by the Western North Carolina Railroad Company as due and timely notice of time and place of sale in case of default. Until such sale shall be made, and proceeds collected, or the advance paid, interest and a pro rato commission shall be charged. In case of a deficiency in the proceeds of such sale, it is to be made good by the said the Western North Carolina Railroad Company, receiving this ad- vance upon demand, and immediately after such sale, and if there be a surplus, either in money or unsold bonds, tlii sam; is to be immediately accounted for, and paid over to the party signing the contract, to wit : to the Western North Carolina Railroad Company. Further that the commissions of the said Lancaster. Brown & Co., upon a sale of said bonds or any portion thereof, shall be two and one half per cent, upon the par value of the bonds sold. If no such sale shall be made by the said Lancaster, Brown & Co., and the advances shall be refunded, and the said pro- perty withdrawn from the custody of the said Lancaster, Brown & Co.. the compensation of the said Lancaster, Brown & Co., for all management, and charge of the said property, whilst in the custody of the said Lancaster, Brown & Co., and for services in, and about the same, shall be three-fourths of one per cent, upon the amount of such advance over, and above all disbursements (34) made by the said Lancaster, Brown & Co., on account of the said property. which in any event are to be paid. $240,471. 6S." (Signed.) The Western North Carolina Rail Road Compamy. Dated New York City, February 6th, 1S72. By Sam'l McD. Tate, President. Filed October 1872. Upon affidavits filed by Robert A. Lancaster, and petition of said Lancaster, Robert F. Atkinson. J. C. Meban^, Proudfit, and Norris & Son, the v. and each company, are made, each parties plaintiffs. The Circuit Court of the United States for tlie Western Dis- trict of North Carolina : Hiram Sibley and Henry Clews, ] * against 1 The Western North Carolina Railroad Com- [ pany, Tod R. Caldwell, Ruf us Y. McAden. \ Defendants. John Rutherford, Hiram Kelly, James and Thomas Greenlee, and Mary Carson, A. H. Erwin, and others. A v^n^Ruther- ^ ne j ^ anc * separate answer of A. H. Erwin, of the county of torde; ai. J3 ur ] iej am l John Rutherford, Hiram Kelly, James Greenlee, Thomas Y, Greenlee and Mary Carson, of the county of McDowell, in the State of North Carolina, reserving all right of exceptions to the plaintiffs' bill of complaint, sayeth, that the facts charged in the plaintiffs' bill, relative to the organization of the Western North Carolina Railroad Company, the issuing of the bonds of said Com pany, and the execution of the deeds of mortgage, or trust, by the said Company to the plaintiffs, Henry Clews and Tod R. Caldwell, to secure the said bonds. These defendants have no personal know- ledge, but are informed and believe that the alligations and aver- ments contained in plaintiffs' bill relative thereto, are in substance and effects, truly and correctly charged. That the defendant, A. H. Erwin, answers, that the said Western N. C- Railroad Company is justly indebted to him in the sum of five hundred dollars, or thereabout, due by two several judgments taken against said Company in Burke Superior Court. The defendant, John Rutherford, answers that the said Company is jnstly indebted to him in the sum of fifteen hundred dollars and interest, by judgment obtained by him against said Company in Mc- Dowell county. Some five hundred dollars of which has been paid. That the defendant, Thomas Y. Greenlee, answers that he has two judgments in McDowell Superior Court amounting to some seven- teen hundred dollars and interest, which is still due and unpaid (35) James Greenlee answers, that he has no debt or claim against said Company. Hiram Kelly answers that he had a judgment against the said Company for some two hundred and eighty dollars, but the same had been paid. Mary irson answers that the said Company is indebted to her as guardian of her ciiil Iren in the sum of one thousand dollars, due for damages sustained by the right of way of the said Company through her children's land, which is still due and unpaid. All of which said indebtedness of the said Company will more fully appear by the record of the Cjurts of Burke and McDowell counties, which these defendants will produce when required by this Court. These defendants having answered all the matters contained in plaintiffs' bill of complaint, which they are advised are material for them to answer, pray that their rights in the premises may be pro- tected in this Honorable Court, and submit to such decree as this Court may deem just and equitable, that they may be dismissed with COStS. &C. JB. S. GrAITHER, as of Counsel. Filed October 1872. In the Circuit Court of the United States in and for the Western District of North Carolina at Greensboro, October Term A. D. 1872. Henry Clews, and Hiram Sibley, Plaintiffs, ~) Order. &c, October. Petition, &c> Against I of W. H. Howerton, and Others, The Western North Carolina Rail Road, J Marcus ErWin, appearing by per- and Others, Defendants. J mission of the Court as counsel, &g. Upon hearing the petition of William H. Howerton, Thomas G. Walton, 0r der makin<* W. A. Eliason, Richard A. Caldwell J. J. Mott, A. H. Shuford, Rufus L. Pat- w» H. Hutfer* terson, William F. Craig, John I. Shaver, J. R. Elias, N. W. Woodfin, and S. tcmetal.par H. Fleming, &c, &c, and upon hearing the matters, and things therein alleged, ties " &c, argued by Marcus Erwin, Esq., of counsel, for last named petitioners, and Phillips & Merrimon, of counsel for the complainants,. It is ordered by the Court that the said William H. Howerton, and the said other petitioners, be and they are hereby made parties defendant to this suit according to the effect of the prayer, Stc, in their petition contained. And it is further ordered, that they make answer, Sic, to the bill of complaint on or be- fore Fridav the Sth day of November. Rout. P. Dick, Filed October ,1872. Judge. In the Circuit Court of the United States at Greensboro, in the Western Dis* trict of North Carolina, of October Term A. D. 1872. Henry Clews, and Hiram Sibley, ^ In Equity, Against I Order of reference for an account, Sic, Sic, The Western North Carolina j Rail Road Company and Others. J October 7th, (1S72.) On motion of counsel for the complainants, It is referred to John W. Payne, Esq., Clerk, Sic, to ascertain who are the enc ^ r ° re er * holders of the mortgage hoods mentioned in the pleadings, and to take and state an account of the pritxcipfi^interest, and amount due to each of such holders an account of such bonds, and make report of the same, on or before the 19th inst. In the Circuit Court of t ;e United States at Greensboro, in and for the Wes- tern District of North Carolina, October 12th, A. D., 1S72. Henry Clews, Hiram Sibley, Plaintiffs.) Master's report in obedience to the Against | order of reference made the 7th day The Western North Carolina Railroad \ of October, A. D., 1S7.Z. Company and others, Defendants. J In obedience to the o der of reference, Hcc. , to the undersigned, made in this cause, and dated the 7th day of October, A. D., 1S72, directing me to take, and state an account, &c, and make report. &£-., I have proceeded to discharge the duty so assigned me, and now beg leave to make this- * REPORT. if Ref- First : — That the said the Western North Carolina Railroad Company for divers good, and valuable considerations to it paid, made and issued, and deliv- ered its coupons, bonds, secured by the mortgage, mentioned in the pleadings in this cause, and of date, March A. D., 1S70, for the aggregate amount of thirteen hundied and fifty thousand dollars ($1,350,003.) less five hundred thous- and dollars ($500,000.) thereof, which were not completely executed for the lack of the signature of Tod R. Caldwell, trustee, &c., that the said bonds bear date the date of said mortgage payable in twenty years, bearing interest at the rate of eight per cent, per annum, payable semi-annually, secured bv coupons to said bonds attached that it is provided that if the interest accruing upon said bonds is not paid according to the terms of the said bonds, and said mortgage, then the whole of the said bonds so issued shall at, and in such contingnency come due. and the holders thereof, may have a foreclosure of said mortgage, &c, that said bonds all so issued to divers persons for value : that Hiram Siblev, one of the plaintiffs in t lis cause, for a valuable consideration, become and now is the owner and holder of divers of said bonds, representing five hundred and thirty -seven thousand dollars ($537,000,) of prinoptefenonev bonds, five hundred (500,) of said bonds representing five hundred thousand dollars ($500,000.) not completely executed for the lack of the signature of Tod R. Caldwell, tmstee, &c, that the said bonds so held by the said Hiram Siblev, have coupons attached from July 1st, A. D., 1870; that the coupons due upon said last mentioned bonds so duly executed and belong- ing to the said Hiram Sibley, were duly presented for payment to the said com- pany, and its agents on the 14th day of March. A. D. 1S72, and payment there- of demanded, and payment thereof was refused, and no payment thereof since that time has been made to* the said Hiram Sibley, or any one for him, that the whole amount of principtevnoney due to the said Hiram Sibley on accounts of said bonds is five hundred and thirty-seven thousand dollars ($537,000,) and the amount of interest due on the 'aid bonds to the said Hiram Sibley is ninetv- six thousand six hundred and sixty dollars ($96,660.00,) and the aggregate amount due him on the first day of October, A. D. 1S72, is six hundred and thirty-three thousand six- hundred and sixty dollars ($633,660.00.) That Richard Norris, and Heury Lat timer trading under the name and style of Richard Norris tx; Son are the owners and holders for value of twenty-four (24) of said bonds, each of the denomination of one thousand dollars ($1,000,) and such bonds are numbered, 542, 543, 544, 545. 546, 572. 573, 574, 575, 576, 577- 57S. 579> 5 So, 5S1, 5S2. 6S£, 5S4, 585. 5S6, 5S7. 5S8, 589, and 5flo, and each with the coupons attached from July A. D. 1870; that the principWunoney due upon said bonds to the said Richard Norris & Son is twenty four thousand dollars ($24,000.00,) that the interest due on the same to them to the first day (37) of October, A. D., 1872, is four thousand three hundred and twenty dollars ($4,- 330.00,) that the amount due to the said Richard Norris & Son on the first day of October, A. D., 1S72, on account of said bonds is twenty-eight thousand three hundred and twenty dollars ($28,320.00.) That Robert A. Lancaster is the owner and holder of five of said bonds for value, each of the denomination of one thousand dollars ($1,000,) and numbered from 501 to 505, inclusive, with the coupons attached thereto, from July, A. D., 1870. that the principiaunoney due on said bonds is five thousand dollars, the interest due on the same, to the first day of October, A. D., 1872, is nine hun- dred dollars ($900,) and the amount due to the said Robert A. Lancaster on the first day of October, A. D., 1872, is five thousand and nine hundred dollars (#5,900.00.) That Robert T. Atkinson is the owner and holder for value, of five of said bonds, each of the denomination of one thousand dollars ($1,000,.) numbered from 516 to 520, inclusive, with the coupons attached from July, A. D., 1870, that the princip&^money due upon said bonds is five thousand dollars ($5,000,) the interest due on the same is nine hundred dollars, ($900,) and the amount due the said Robert T. Atkinson on account of said bonds to the first day of October, A. D., 1872, is five thousand and nine hundred dollars ($5,900.00.) That James C. Mebane is the owner and holder per value of five of said bonds, each of the denomination of one thousand dollars, ($1,000,) numbered from 506 to 510, inclusive, with the coupons attached from July, A. D., 1870, that the principftCpf said bonds is five thousand dollars, ($5,000,) that the interest due uii the same is nine hundred dollars, ($900,) that the amount due to the said James C. Mebane on the first day of October, A. D., 1872, on account of said bonds, is five thousand and nine hundred dollars, ($5,900.00.) That Proudfit is the owner and holder per value of five of said bonds, each of the denomination of one thousand dollars ($1,000,) numbered from 511 to 51a, inclusive, with coupons attached from Juty, A. D. , 1870, that the prin- cipfe(nioney due on said bonds is five thousand dollars, ($5,000,) that the inter- est due on the same to the first day of October, A, D., 1872, is nine hundred dollars ; that the amount due to the said Proudfit on account of said bonds to said date, is five thousand and ninetundred dollars, ($5,900.) That the North Carolina Railroad Company are the owners and holders for value of thirty-nine of said bonds, each of the denomination of one thousand dollars, ($1,000,) and twenty-five thereof, numbered from 251 to 275, in- clusive, and fourteen thereof numbered from 487 to 500 inclusive, and each of said honds with the coupons attached from January, A. D., 1872, that the prin- eip*Cmoney due upon said bonds to the N. Carolina Railroad Company, is thirty-nine thousand dollars, ($39,000.00,) and the amount of interest due on said bonds to the 1st day of October, A. D., 1872, is two thousand three hun- dred and forty dollars ($2,340.00,) and the amount due to said Company on ac- count of said bonds, is forty-one thousand three hundred and forty dollars, ($41,340.00,) on the said first day of October, A. D., 1872. That the First National Bank of Charlotte is the owner and holder for value of thirty six of said bonds, each of the denomination of one thousand, ($1,000,) with coupons attached from July, A. D., 1870, that the principtefmoney due upon said bonds is thirty-six thousand dollars, ($36,000.00,) that the interest on the same to the first of October, A. D. , 1872,. is six thousand five hundred and eighty dollars, ($6,580.00,) and the amount due to them on account of said bonds is forty-two thousand five hundred and eighty dollars, ($42,580.00. That Hufus Y. McAden is the owner and holder for value of said bonds to the amount of one hundred and eighty-three thousand dollars, that the said bonds have coupons attached from July, A. D., 1870, that the principfe(_money due upon said-)aonds is one hundred and eighty -three thousand dollars (183,000.00,) that the interest due on the same to the fiist of October, A. D., 1872, is thirty- two thousand nine hundred and forty dollars, and the whole amount due to him (35) on the said last named day is two hundred and fifteen thousand nine hundred and forty dollars, (-$215,940,) that there are other liens on said property, hut all of a date subsequent to the said mortgage. Jno. W. Payne, Commissioner. Filed October Term, 1872. In the Circuit Court of the United States in and for the Western District of North Carolina, at Greensboro, of October Term, A. D., 1872 : Henry Clews and Hiram Sibley, Plaintiffs, *] Against [ Order of transfer, &c, Octo- The Western North Carolina Railroad Com pa- j • ber, 1872. ny and others, Defendants. J By consent of parties and on motion, Or ler of trans- ^ j 9 ordered by the Court, that this cause be transferred to the Circuit Court ville. °f t' ie United States at Asheville, at the term of said last named Court, to be held on the day of November, A. D., 1872 And the clerk of this Court will certify this order to that Court, and send th« original papers in the cau3e. Rob't. P. Dick, Judge. In the Circuit Court of the United States, in and for the Western District of North Carolina, at Asheville, of November Term, A. D., 1872. Heiiiy Clews and Hiram Sibley, Plaintiffs, "1 Agtinst [Order &c, November 13th, The Western North Carolina Kailroad Compa- f 1872. ny and others, Defendants. J It appears to the Court that process has been duly served upon the Defend- eSuto a,us ' R -lfU3 Y McAden, The Fust National Sink of Charlotte. Tod R. paid- Mc\den&c. well, trustee, &c, N. H. D. Wilson, assignee, &c, and R. M. Walker. And that they come not, and fail to plead on, or demur to the bill of co n plaint, &c. It is therefore upon motion of Phillips a id .U;rrino i, counsel for the Plain- tiff, ordered by the Court, that the said bill of complaint be taken pro confesso, as to the last named Defendants. Rob't, P. Diok, Judge. In the Circuit Court of the United States, in and for the Western District of North Carolina, at Asheville, of November, A. D.. 1S72, Hiram Sibley, and Henry Clews, Plaintiffs,"] Order, fee, Against { The Western North Carolina Railroad j November 12th. Company and others, Defendants. J JuVmeut pro The defendants, Wlliam H. Howerton. Thomas G. Walton, W. A. Eliaon, confesso vs. Richard A. Caldwell, J. f. Mott, A. H. Shuford, Ruths L. Patterson. William Hoverton B'd p Craig, John I. Shaver", J. R. Ellis, N. W. Woodtin and S. H. Fleming, hav- ing been made parties defendant to this suit upon their own petition, and having failed to make answer, &c, according to the former order made in this behalf". Up3n mot or. of Phillips & Merrimon, of counsel for the complainants. Ma - cus Envin for said last named defendants being present in Court, and not objecting; It h; ordered that the bill of complaint be taken pro confesso, as to said last name^defendant£ Robt. P. Dick. %J udge. In the Circuit Court of the United States, in and for the Western District of (39) North Carolina, at Asheville, of November Term, A. D., 1S72. Henry Clews, and Hiram Sibley, Plaintiffs, 1 November 13th, Against | The Western North Carolina Railroad [ Order, &c. Company and others, Defendants. J Upon motion of Phillips & Merrimon, of counsel for the complainants, and Qrder settin there being no objection on the part of the defendant Jpr any of them, cause "down It is ordered that this cause be set down lor hearing upon the bill Exhibit for hearing, in testimony, order, reports of the Master, &c, &c. Robt. P. Dick. Judge. In the Circuit Court of the United States, in and for the Western District of North Carolina, at Asheville, of November Term, A. D-, 1872. Henry Clews, and Hiram Sibley, Plaintiffs, "] Minutes of Decree of Forecloure, Against f The Western North Carolina Railroad j Company, and others, Defendants. J November 14th, 1872. This case is this day heard, &c, &c. The Court decrees the debts of the parties plaintiff" respectively according to the Master's report, &c. The Foreclosure of the Mortgage. The sale of the property embraced by the mortgage mentioned and specified in the pleadings, and that the sale be made at Salisbury after 40 days notice in the newspapers, to wit : The New Yoi-k Times, the Philadelphia Age, The Baltimore Gazette, the Sentinel, News, and Era, at Raleigh; the Patriot, and New North State, at Greensboro; the Watchman at Salisbury; the Citizen and Pioneer, at Asheville, three weeks in the weekly papers, and one week in the daily. Appoint Burgess S. Gaither, and Marcus Erwin, Esquires, commissioners, and with full power to sell the said property for cash, and make report to the Court. That creditors may bid for the property, and such bidders after paying a suf- ficient amount of the purchase money in cash to pay the costs and expenses in this behalf, and the excuting the trust, &c, &c, may be credited with their debts in payment, if the amount for which the property shall sell, is sufficient to pay the debts, otherwise, pro eato. That the parties to the suit shall be in all respects, Concluded, estopped, &c, &c, as to all rights, &c. , &c, embraced by the pleadings, suit, &c, &c. Case retained for further orders. Robt. P, Dick, U. S. District Judge. In the Circuit Court of the United States at Asheville, in and for the Western District of North Carolina, of November Term, A. D. 1S72 .■ Henry Clews, Hiram Sibley and others,"] Plaintiffs, I -^ p -vt . ' Decrees, &c, No- against V , cfV The Western North Carolina Railroad | 5 Company, and others, Defendants. J This cause come on to be heard at this term, and was argued by counsel, and thereupon, upon consideration thereof it was or- dered adjudged, and decreed as follows, that is to say : (4o) That the report, and all things therein contained of Jno. \V. Payne, Esquire, a master of this Court, which report bears date the 12th day of October, A. D., 1S72, and was made in pursuance of an order of the Court, heretofore made in this Court, referring it to him to take such account &c, do stand ratified and confirmed. It is further ordered; adjudged and decreed that there is due and owing to the said Hiram Sibley, from the said the Western North Carolina Railroad Company, upon the said mortgage bonds, the sum of six hundred and thirty-three thousand six hundred and six- ty dollars (.$633,660.00,) and of this sum five hundred and thirty- seven thousand dollars, ($537,000,) bears interest from the first day bf October, A. D., 1S72, until paid. That there is due and owing to the said Richai-d Xorris and Henry Lattimer. trading under the name and style of Richard Norris & Son, from the said the Western North Carolina Compa- ny, upon such mortgage bonds, the sum of twenty-eight thousand three hundred and twenty dollars, ($28,320.00.) and of this sum twenty-four thousand dollars ($24,000.) bears interest from the first day of October, A. D., 1S72, until paid. That there is due and owing to the said Robert A. Lancaster, from the said Western North Carolina Railroad Company, upon such mortgage bonds, the sum of five thousand and nine hundred dollars, ($5,900.00,) and of this sum five thousand dollars bears interest from the first day of October, A. D., 1S72, until paid. That there is due and owing to the said Hirbert F. Atkinson, from the said the Western North Carolina Railroad Company, upon such bonds, the sum of five thousand and nine hundred dollars, ($5,900:00,) and of this sum five thousand dollars bears interest from the first day of October, A. D., 1S72, until paid. That there is due and owing to the said James C. Mebane, from the said the Western North Carolina Railroad Company, upon such mortgage bonds, the sum of five thousand and nine hundred dollars, ($5,900.00,) and of this sum five thousand dollars ($5,000.00) bears interest from the first day of October, A. D. , 1S72, until paid. That there is due and owing to the said Proudfit, from the said the Western North Carolina Railroad Company, upon such mort- gage bonds, the sum of five thousand and nine hundred dollars, ($5,900.00) and of this sum five thousand dollars ($5,000.00) bears interest from the first day of October, A. D., 1872, until paid. That there is due and owing to the said the North Carolina Railroad Company, from the said the Western North Carolina Railroad Company, upon such mortgage bonds, the sum of forty- one thousand three hundred and forty dollars, ($41,340.00,) and of this sum thirty-nine thousand dollars ($39,000.00,) bears inter- est from the first day of October, A. D. 1872, until paid. That there is due and owing to the said First National Bank of Charlotte, from the said the Western North Carolina Railroad Company, upon such mortgage bonds, the sum of forty-two thou- sand four hundred and eighty dollars, ($42,480.00,) and of this sum thirty-six thousand dollars ($36,000.00) bears interest from the first day of October, A. D., 1872, until paid. That there is due and owing to the said Rufus Y. Mc Aden, from the said the Western North Carolina Railroad Company, upon such mortgage bonds, the sum of two hundred and fifteen thou- sand nine hundred and forty dollars, ($215,940,00,) and of this sum one hundred and eighty-three thousand dollars ($183,000.00) bears interest from the first day of October, A. D., 1872, until paid. And it is further ordered, adjudged and decreed that, all and singular, the said mortgaged premises, both real and personal, Decree of sale mentioned and described in the bill of complaint in this cause, be *g-°, f 0ctob ' r ' sold by public auction by Burgess P. Gaither and Marcus Erwin, Esquires, who are hereby appointed commissioners for that pur- pose, and invested with full power to that end, that said deed, such sale shall be made in the town of Salisbury, in the county of Rowan, in said State of North Carolina, where a part of said property is situate ; that if the said mortgaged property shall not sell for a sum of'money sufficient to pay the said debts, costs, com- missions and other expenses embraced and decreed in this Court, then, and in that case the said commisssioners shall sell the fore- closure of the said the Western North Carolina Railroad Compa- ny, and the highest and best bidder therefor shall be such and as shall satisfy the said debts remaining unpaid, with all costs thereon, or who shall agree to take such forecloses for the shortest period of time, and receive during that time all such part and tolls as the said corporation would by law be entitled to receive and demand ; that said commissioners shall give public notice of the time and place of such sale ; that such notice shall be published (4^) forty days in the following named newspapers, viz : The New York Times, The Philadelphia Age, The Baltimore Gazette, The Raleigh Sentinel, The Raleigh News, The Raleigh Era, the Greensboro Patriot, The New North State, the Salisbury Watch- man, The Asheville Citizen, and Pioneer. That such sale shall be made for cash in hands, and the said commissioners shall make report of the sale so to be made by them, to this Court ; that the complainants, or any one or more of them, may become the pur- chaser or purchasers of said property, or any part thereof, and said franchises ; that said commissioners shall execute and deliver a deed or deeds to the purchaser or purchasers of the said mort- gaged property and franchises, when such sale shall be ratified by this Court, good and sufficient in all respects to pass the title of the said the Western North Carolina Railroad Company to the same that the said creditors, if thev, or any of them, shall purchase said property or any part thereof, after paying to said commissioners, to sell, &c, a sum of money sufficient to pay and discharge the debts uf such of said creditors as do not so purchase, and the costs, commis- sion and other expenses in this behalf decreed to be paid, may be credited with the debts herein decreed to such purchaser or pur- chasers, and if the said mortgaged property shall not sell for a sum of money sufficient to pay all the said debt, costs, &c, then such creditors as do purchase said property or any part thereof, shall be credited with his or their pro rato part of his or their debt or debts as may so be entitled to be paid, that the proceeds of such sale be • distributed under the further order of this Court, subject to this decree. It is further ordered, adjudged and decreed, that the defendants, and all parties to this cause, and all persons claiming, or to claim from or under them, be forever barred and foreclosed of and from all equity of redemption and claim of, in and to the said mortgaged premises and franchises, and all and any part thereof. And it is further ordered, adjudged and decreed, that the pur- chaser or purchasers of the said mortgaged premises, property, fran chises, at such sale, be let into the possession of the said premises, property and franchises, or any part thereof, that may be so sold, and any person or persons who, since the commencement of this suit, was or have been in possession under them, or any or either of them, deliver possession thereof to such purchaser or purchasers, on (43) production of the deed or deeds of the said commissioners for said premises, &c, &c, and a certified copy of the order confirming the report of sale after such order shall become absolute. In the Circuit Court of the United States at Asheville, in and for the Wes- tern District of North Carolina, November Term, A. D., 1872. Henry Clews, Hiram Sibley, Plaintiffs, ~| Order of Transfer, &c, made, Against f November 14, 1872 The Western North Carolina Railroad j Company and others, Defendants. J By consent of parties and on motion, \ ^ Order of trans- It is ordered by the Court, that this cause be transferred to the Circuit Court f er t circuit -of the United States, at Greensboro, then to be further heard, &c. The clerk of C't at Greens- this Court, will certify this order, and send the original papers in the cause to boro ' ,the clerk of said Court at Greensboro. Rqbt. P. Dick, ' ..,. Judge. Be it rembered that a Circuit Court of the United Stated of America, and held at Asheville, in the Western District of North Carolina, on the day of , A. D., 1872, present and presiding the Honorable Robert P. Dick, Judge, &c, &c, the following among other proceed- ings- were had, and that is to say: f -: • ■ ~>y " - • { * j Henry Clews, and Hiram Sibley, Plaintiffs,"] Order of Tiansfer, &c, . Against f made November 14th, 1872. The Western North Carolina Railroad j •■ Company and others, Defendants. J By consent of parties and on motion. It is ordered by the Court that this case be transfered to the Circuit Court of the United States at Greensboro, there to be further heard, &c. The clerk of this Court will certify this order, and send the original papers to the clerk of said Court, at Greensboro. (Signed.) Robt. P. Dick, Judge, &c. United States of America, the Western District of North Carolina, Circuit <■ Court of the United States, at Asheville, in and for the said District: I, E. R. - q Hampton, Clerk of said. Court, do hereby certify that the foregoing is a true, ./. . and perfect transcript of the record, and order made in, and therein named, and stated, and I do hereby certify the same in pursuance of said order to the Circuit Court of the United States, at Greensboro, in said District. Witness my hand and seal of office at office in Asheville, the 14th day of November, ' .5 A. D., 1872. E. R. Hampton, Clerk, United States Circuit Court. Western District North Carolina, Asheville. .;. In the Circuit Court of the United States, at Greensboro, in and for the Wes- tern District, of North Carolina, at Chambers, the 20th day of February, A. D., 1873. Henry Clews, and Hiram Sibley, and others. Plaintiffs, ") Order of appointing Against I Samuel McD. Tate, - • The Western North Carolina Railroad Company, and j Receiver, &c. others, Defendants. J The parties both plaintiffs and defendants apply to the Court praying that a n , Receiver may be appointed, to take possession of the property, and effects ing a^Receiv" embraced by the mortgage mentioned, and set forth in the pleadings, &c. e3. The Court declines to appoint a permanent Receiver at this time, and defers the same until the next regular Term of the Court, but in the mean time, (44) It is ordered by the Court, that Samuel McD. Tate, Esquire, of the county of Burke in said State, do and he is hereby appointed Receiver in this behalf, and he is charged as such Receiver to receive into his possession forthwith all the said Railroad and all other property of any kind whatsoever, including moneys, rights, credits, &c., &c, embraced by said mortgage, and to keep, hold, use and care for the same, and keep the same safely, and in proper condition, and repair, and expend necessary money to that end until the further order of this Court in this behalf, and make report of his action under this order, and all other orders of the Court affecting him as such Receiver on the first day of the next Term of this Court. It is further ordered that the said Samuel McD. Tate enter into bond in the sum of Twenty -five Thousand Dollars, payable to the United States, with good security, conditioned for the faithful discharge of his duties according to law, as such Receiver. And now the said Samuel McD. Tate, Receiver, &c, tenders his bond as such Receiver, payable to the United States, in the sum of Twenty -five Thousand Dollars, conditioned as aforesaid, with James W. Wilson, and John I. Shaver, sureties, which is accepted and approved by the Court, and ordered to be filed among the papers in this case. Robt. P. Dick, U. S. District Judge. In the Circuit Court of the United States, at Greensboro, in and for the Wes- tern District, of North Carolina, of April Term, A. D., 1S73. Henry Clews, and Hiram Sibley, and others. Plaintiffs, ") Order, appointing VS. I William A. Smith The Western North Carolina Railroad Company, and [ Receiver, &c. others, Defendants. j The matter of the application for a Receiver heretofore made, and continued Order appoint- to this Term being debated by counsel both for the plaintiffs and defendants, nent a Receiv" and being considered by the Court, er. The Court doth order that a Receiver be appointed to take possession of the property and effects, embraced by the mortgage mentioned, and specified in the pleadings, Sic, Sic And the Court doth further order, that the Honorable William A. Smith, of the county of Johnston, in said State of North Carolina, be. and he is hereby appointed such Receiver in this behalf, and he is charged as such Receiver, to receive into his possession forthwith from Samuel McD. Tate, Esquire, the tem- porary Receiver appointed in this behalf, all the said Railroad, and all other property of any kind whatsoever including monies, rights, credits, &c., &c, embraced by said mortgage, whether in the hands of the said Sam'l McD. Tate, or any other person, and to keep, and to hold, use, and care for the same, and keep the same safely, and in perfect condition, and repair, &c, &c, and expend all necessary sums of money to that end until the further order of this Court in this behalf, and make report of his such action under, and in pursuance of this order, and other orders of this Court affecting him as such receiver on the first day of the next Term of this Court unless the Court shall order him to make such report before that time. It is further ordered that the said William A. Smith as such Receiver, &c, enter into bond payable to the United States in the sum of one hundred thous- and dollars, with good and sufficient security to be approved by the Court, con- . ditioned for the faithful discharge of his duty as such Receiver, according to law. And now the said William A. Smith, Receiver. &c, as aforesaid, tenders his bond as such Receiver payable to the United States in the sum of one Hundred thousand dollars, conditioned as aforesaid with as sureties thereto, which is approved, and received by the Court, and ordered to be filed among the papers in this cause. (45) It is further ordered that Samuel McD. Tate, the present Receiver, as aforesaid forthwith, turn over to his successor, William A. Smith, Receiver, &c, as aforesaid, the said Railroad, and all other properties of any kind what- soever including monies, rights, credits, &c, &c, alien, lease, come into his hands as such receiver, except, such property and sums of money as have been properly used and expended under, and in pursuance of the orders heretofore made in reference to him, and charging him as such Receiver, and to take the receipt of the said William A. Smith as such Receiver, &c, for the same. And it is further ordered that the said Samuel McD. Tate for his services as such temporary Receiver be allowed the sum of five hundred dollars to be retain- ed by him out oi the amount, so in his hands. Robt. P. Dick, U. S. District Judge. United States Circuit Court, Western District of] At Spring Term, 1873, North Carolina, Henry Clews, Hiram Sibley, I at Greensboro, and others, I In Equity. VS. The Western North Carolina Railroad Company, and others. In this cause Wm. A. Smith having been appointed Receiver of the said . Railroad, and all its property, estate and effects, and pending the litigation, the order paving two Boards of Directors, one called the Tate Board, and the other Howerton counsel. ' Board, having each bona fide, and in what they conceived to be their duty to the road, a nd its true interest, employed counsel to defend the interest of said road, on consideration thereof this Court declares that said counsel ought to be paid out of the funds in the hands of the Receiver a reasonable compensation for their services as aforesaid, it is therefore ordered, adjudged, and decreed by the Court here, that the said counsel be allowed as retaining fees out of said funds to be paid by the said Receiver on demand thereof, two hundred dollars each, that is to say $200 each to Dillard, Gilmer & Smith, Ball & Keogh, Mar- cus Erwin, Scales & Scales, W. H. Baily, N. W. Woodfin, B. S. Gaither, and David Coleman, Esquires; taking their receipts respectively therefor, and the firms being regarded as entitled to but one fee. Robt. P. Dick, Judge. In the Circuit Court of the United States, in and for the Western District of North Carolina, at Greensboro, of April Term, 1874. Henry Clews, and Hiram Sibley, Plaintiffs,] Minutes of Decree of Foreclosure, Against [ and Sale, April 17th, 1874. The Western North Carolina Railroad f Company and others, Defendants. ) This cause is this day heard, &c, &c. Minutes of de- The court decrees the debts of the parties plaintiffs, respectively according to ciee " the Master's report The Foreclosure of the Mortgages. The sale of the property embraced by the mortgage mentioned, and expressed in the pleadings, and that the sale be made at Salisbury, after 40 days notice in the following newspapers : The News, and Era, at Raleigh; the Patriot, and the New North State, at Greensboro; the American, at Statesville; the Watch- man, at Salisbury; the Expositor, and Pioneer, at Asheville; the Observer, and Democrat, at Charlotte; three weeks in each weekly paper. Appoints Burgess S. Gaither, Marcus Erwin, Thomas Ruffin, and Thos. B. Keogh, commissioners, with full power to sell the said property for cash, and make report to the Court at the first rule day, in Greensboro, after the sale takes place, That creditors may bid for the property, such bidders, after paying a sufficient (47) nch from the said the Western North Carolina Company, upon snch mortgage bonds, the sum of twenty eight thousand, three hundred and twenty dollars, ($28,320.00,) and of this sum, twenty-four thous and dollars, ($24,000.00,) bears interest from the first day of Octob er, A. D., 1872, until paid. That there is due and owing to the said Robert A. Lancaster, from the said the Western North Carolina Railroad Company, upon such mortgage bonds, the sum of five thousand and nine hundred dollars, ($5,900,) and of this bum five thousand do.lars ($5,000) bears interest from the first day of October, A. D.. 1872. until paid. That there is due and owing to the said Herbert Atkinson, from the' said the Western North Carolina Railroad Company, upon such mortgage bonds, the sum of five thousand and nir.e hundred dollars, ($5,900.) and of this sum five thousand dollars ($5,000) bears inter- est from the first day of October, A. D., 1872, until paid. That there is due and owing to the said James C. Mebane, from the said the Western North Carolina Railroid Company, upon such mortgage bonds, the sum of five thousmd and nine hundred doL laivj ($5,900,) ^nl of this suai tivjth )U3inA dollars ($5,000) bears interest from the first day of October, A. D., 1872, until paid. That there is due and owing to the said Proudfit, from the said the Western North Carolina Railroad Company, upon such mortgage bonds, the sum of five thousand and nine hundred dollars, ($5,900,) and of this sum five thousand dollars ($5,000) bears inter- est from the first day of October, A. D., 1872, until paid. That there is due and owing to the said the North Carolina Rail road Company, from the said the Western North Carolina Railroad Company, upon snch mortgage bonds, the sum of forty one thou, sand three hundred and forty do.lars, ($41,340,) and of this sum thirty nine thousand dollars ($39,000) bears interest from the first day of October, A. D , 1872, until paid. That there is due and owing to the said the first National Bank of Charlotte, from the said the Western North Carolina Railroad Company, upon such mortgige bonds, tVe sum of forty- two thou- sand four hundred and eighty dollars, ($42,480,) and of this sum thirty-six thousand dollars ($30,000) bears interest from the first day of October, A. D., 1872, until paid. That there is due and owing to the said Rufus Y. McAden, from the said the Western North Carolina Railroad Company, upon such (46) amount of the purchase money, in cash, to pay the costs and expenses in this behalf, and the execution of the trusts. &c, &c, may be credited with their debts in payment if the amount for which the property shall sell is sufficient to pay the debts otherwise pro rato, That the parties to the suit shall be in all respects barred, concluded, estop- ped, &c, i&c, as to all rights, &c, &c, embraced by the pleadings, suit, &c, &c, th:' present assignees of the plaintiffs to stand in their stead in all things in this behalf. Case retained for further orders. Robt. P. Dick, Judge. Circuit Court of the United States,) Of April Term, 1874, Western District of North Carolina.} at Greensboro. Henry Clews, Hiram Sibley. Richard Norr is, and Henry ] Decree of Lattimer, as partners in trade, as Richard Norris & | Foreclosure, Son, Robert A. Lancaster, Herbert F. Atkinson, \ and sale. James C. Mebane, — Proudfit, and The North | Carolina Railroad Company, Plaintiffs, J Against The Western North Carolina Railroad Company, (Eastern Division,) Tod R. Caldwell, Rul'us Y. McAden, the First National Bank, of Charlotte; John Rutherford, Hiram Kelly, Thos. Y. Greenlee, Jas, Greenlee, Mary Carson, A. H. Erwin, N. H. D. Wilson, Assignee of the. Bank of Cape Fear; R. M. Walker, and William H. Hower- ton, Thomas G. Walton, W. A. Eliason, Richard A. Caldwell, J. J. Mott, A. H. Shnford, Rufus L. Patterson, William F. Craig, John I. Shaver, J. R. Ellis, N. W Woodfin, S. H. Flemming, claiming to be President and Directors of the Western North Carolina Railroad Company, Defendants. This cause having been brought to a hearing, at this term upon the bill and answers, and upon the report of the Master, John W. Decree of sale, Payne, heretofore appointed by order of the Court, which report is hereby confirmed, and it duly appearing that personal service of the process herein has been made upon all the parties defendant, in due time, and no one appearing to oppose the same. It is hereby ordered, adjudged and decreed that there is due, and owing to the said Hiram Sibley, from the said the Western North Carolina Railroad Company, upon the mortgage bonds mentioned, and set forch in the said Master's report, the sum of six hundred and thirty three thousand six hundred and sixty dollars, ($633,660.00,) and of this surm, five hundred and thirty seven thousand dollars, ($537,000.00,) bears interest from the first day of October, A. D., 1872, until paid. That there is due and owing to the said Richard Norris and Henry Lattimer, trading under the name and style of Richard Norris & Son, (43) mortgage bonds, the aum of two hundred and fifteen thousand thou- sand nine hundred and forty dollars, ($215,940,) and of this sum one hundred and eighty-three thousand dollars ($183,000) bears in terest from the first day of October, A. D., 1872, until paid. The Court doth now declare that the defendant, the Western North Carolina Railroad Company (Eastern Division) did execute and deliver the mortgage deed set forth in the bill of complaint, and did issue and dispose of, for valuable consideration, the said bonds and coupons, as described in the said master's report, and that default has been made by the said defendant, the Western North Carolina Railroad Company, (Eastern Division,) in the pay- ment of the interest on said bonds, (the said coupons having been presented, and the payment of the interest therein specified, having been demanded,) and that said default has continued for more than three months after the said coupons became so due and payable, and still continues, whereby the principle of said bonds has become due and payable, according to the terms of said mortgage. It is further declared by the Court that there are no other liens or encumbrances on the said mortgaged premises, having priority of said mortgage, and that the said mortgage, and each of the said bonds secured thereby, with the interest thereon, is the first lien on said mortgaged premises and property, and entitled to preference and priority over any and every other lien, mortgage conveyance, judgment or claim, whatsoever. Now, therefore, on motion of plaintiffs' counsel, it is ordered, ad- judged and decreed, that the mortgaged premises described in the bill of complaint, that is to say, the Railroad known and designated as the Western North Carolina Railroad, (Eastern Division,) ex- tending from the Eastern terminus thereof, in the city of Salisbury, in the State of North Carolina, to its Western terminus, in the coun ty of Buncombe, in said State, including all the ways, railways, road beds, rights of way, depot grounds, and other lands, all tracks, bridges, viaducts, culverts, fences, depots, station houses, engine houses, car houses, wood houses, and every other building or struc- ture, and all machine shops, and other shops whatsoever, held at the time of making said mortgage, or thereafter acquired, for use in con- nection with the said mentioned and described Railroad, or the bus- iness thereof, including also, all locomotives, tenders, cars, and other rolling stock, all equipments, machinery, tools, implements, fuel and (49) material for constructing, operating, repairing, or regulating the said Railroad, or any part thereof, or any of its equipments or ap purtenances whatever* held at the time of the making of said mort- gage, or thereafter acquired, arid all of which are de dared to be ap- purtenances and fixtures of said Railroad, and also all the corporate franchise of the said the Western North Carolina Railroad Oomptany, (Eastern Division,} and, all and singular, the tenements, heredita- ments, appurtenances, franchises and rights, belonging to, or in any wise appertaining to said Railroad, and said Railroad Company, and all the estate, right, title, interest, property, claim and demand what soever, of the said the Western North Carolina Railroad Company, (Eastern Division,) of, in and to, the entire above described premi- ses, with the appurtenances set forth and described in said mortgage deed, (unless, on or before the day of sale hereinafter provided for, the said the Western North Carolina Railroad Company, (Eastern Division,) or some one for them, shall pay off and discharge the debts so as aforesaid declared to be secured by said m rtgage,) be 8)ld to the highest bidler at public auction, at the Court House door in the said city of Salisbury. It is further ordered, adjudged, and decreed that Burgess S. Oaither, Marcus Erwin, Thomas Rnffin, and Thomas B. Keogh, be, and they are hereby appointed commissioners, with full powers to them, or a majority of them, to sell said property under this decree, and in pursuance thereof, they shall give forty (40) days notice cf the time and place of sale, by advertisement in the following public newspapers, to wit : The N. Y. Herald, at New York, The National Republican, at Washington, D. d, The News and Era, at Ii& eigh, The Patriot, and New North State, at Greensboro, The Watchman,- at Salisbury, The Recorder, at Hillsboro, The American!, at States- ville, The Citizen, Expositor, and Pioneer, at Asheville, The Observ- er, and Democrat, at Charlotte. Such advertisements to be inserted for three weeks, in the weekly issues of said newspapers. It is further ordered, adjudged and decreed, that the purchaser or purchasers, at such sale, shall pay to the said commissi ners, in cash, on the day of sale, the sum of ten thousand dollars, ($10.- 000,) and the balance of the purchase money, on the day that said sale shall be confirmed by this Court, and that said Commissioners shall make full report of said sale and the amount paid to them, to this Court, at Greensboro, on the first rule day that shall occur after the said sale, and no order of confirmation shall be made before the rule day next succeeding- that to which the report is made. It is further ordered, adjudged and decreed, that William A. Smith, who has heretofore been appointed, and now is Receiver of the Western North Carolina Railroad Company, (Eastern Division,) at the same rule day at which the said commissioners shall make their report of sale, shall file in this Court a f nil and accurate account of his receipts and disbursements, and shall then and there pay over to the said commissioners whatever net balance may be ascertained to be in his hands, or due from him as such Receiver, It is further ordered, adjudged and decreed, that the said com missioners, out of said moneys in their hands, shall pay off and dis- charge all the costs and necessary expenses of this action, to be taxed by the clerk, and all such expenses, charges and allowances, as may be made and fixed by the Court, for the execution of this decree, and that the said commissioners, after the payment of such costs, charges and allowances, shall, with the unexpended balance in their hands, together with the balance of the purchase money, pay off and dis- charge the debts hereinbefore declared to be due and owing from the Western North Carolina Railroad Company, (Eastern Division,} to the parties mentioned in this decree, and take proper acquittances therefor. Rut in case there shall not be a sufficiency to pay all of said debts, then whatever sum there may be shall be applied to said debts, pro rato, and it is further directed that the said com- missioners, (except as to the said sum of $10,000 directed to be paid on the day of sale,) may accept from the purchaser or purchasers at the election of the latter, the said mortgage bonds, and past due c mpons thereof, in such proportion to the par value of said bonds and coupons as the amount of the purchase money bears to the whole amount of said bonds and coupons, that is to say, that the said purchaser or purchasers, provided they be holders of said mort- gage bonds, may retain their shires of the purchase money by sur- rendering to the commissioners the said mortgage bonds, to an equal amount in value. It is further ordered, adjudged and decreed by the Court, that so soon as the said sale shall be confirmed, the purchaser or purchasers thereat, shall be let into immediate possession of said premises, and all and every part thereof, and it is directed and ordered that all and every person who, since the commencement of this action, may have of sale. (50 come into possession of said premises and property, shall deliver and surrender the same to said purchaser or purchasers upon pro duction to him or them, of a deed from said commissioners to such premises and property, and further all and every one of these de- fendants, and all and every person claiming by, from, through or under, him or them, be forever barred and foreclosed of any and all right, title, interest and equity of redemption, in and to the said premises and property so sold, and every part thereof, Eobt, P. Dick, U. S. Dist Judge. Hugh L. Bond, (J't. Judge. W. S. Bxll, Plaintiffs' Alt y. Henry Clews, Hiram Sibley and others, ~| Circuit Court of the against ! United States, Western The Western North Carolina Railroad [ District of North Caro- Company and others. J lina. L By virtue of a decree rendered in the above cause by said Circuit Couit at April term, 1875, B. S. Gaither, M» Erwin, T. B. Keogh 0rder aMvV , n _ and Thomas Kuffin, were appointed commissioners to &ell the Rail- ii"^ onili road known and designated as the Western North Carolina, Railroad, (Eastern Division,) extending from the Eastern terminus thereof, in the city of Salisbury, to its Western terminus, in the county of Bun combe, including all the ways, railways, road bed*, rights of way, depot grounds, and othev lands, all tracks, bridges, viaducts, cul- verts, fences, depots, station houses, engine houses, car houses, wood houses, and everj other building or structure, and all machine shops, and other shops, whatsoever, held at the time of making cer- tain mortgage in the pleadings referred to, or thereafter acquired for use, and in consideration with said Railroad, including- all loco- motives, tenders, cars, and other rolling stock, all equipments, ma chinery, tools, implements, fuel and material for constructing, ope- rating, repairing or regulating the said Railroad, or any part there- of, or any of its equipments or appurtenances whatsoever, held at the time of making said mortgage or thereafter acquired. II. And also all the corporate franchises of the said Railroad Com pany, and, all and singular, the tenements, hereditaments, appurte- nances, franchises and rights belonging to, or in any way appertain lag to, said Railroad and said Railroad Company, and all the estate, rights, title, interest, property, claim and demand, whatsoever, of the said Railroad Company, of, it, and to, the entire above described premise!?, with the appurtenances set forth and described in said mortgage deed, and the said commissioners sell the same upon the following- terms : Ten thousand dollars of the purchase money will be required to be paid said commissioners at the time and place of sale, for which the receipt of the commissioners present will be given. The residue of said purchase mcney will be required to be paid to said commissioners on the day of the confirmation of their report of sale, and on the day, and at the time of such confirmation the commissioners will be ready io deliver the deed. III. That in paying t«e residue of the purchase money after de- ducting the $10,000 cash pa}inent, the purchaser, provided he be a holder cf the bonds secured in said mortgage, may retain his share of the purchase money by surrendering to the commissioners the said bonds to an equal amount in value. IV. The purchaser to bo let into possession upon confirmation of this sale aud a compliance with the terms thereof. V. The biddings will be kept ope*} after the property is struck down, and in case the purchaser shall fail to comply with the terms of the sale by paying down the sum of ten thousand dollars, ($10, 000, a resale will take pla^e immediately, under the direction of the said commissioners, and on the same terms, aud the purchaser will be held bible for any deficiency there may be between the sum he may bid and that for which the property may sell at such resale, and also for any costs and expenses arising on such resale. B. S. Gaithek, "J Thos. B. Keogs, I n . . Tnos Buffi*, f Commissioners. Mabcus Erwdt. J I, A. S. M>rrimon« hare purchased the above described property at and for the price of ($825,000, and hereby promise and agree to comply with the terms and conditions of sale, as above set forth. Jane 22ud, 1875. A. S. Mebbimon. Henry Clews, Hiram Sibley, and others,"] Circuit Court of the Against i United States, Western The Western North Carolina Railroad f District of North Car- Report of Com- Company, (E. D..) and others. J olina. To the Honorable the Judges of said Court : The undersigned commissioners beg leave to report that in obe- unssioners. (53) dience to the decree of this Court made at April Term, 1875, and after duly advertising as directed in said decree they proceeded, on the 22nd day of June, A. D., 1S75, at tne Court House door, in the city of Salisbury, to sell to the highest bidder, at publie auction all the property, estate, effects, rights, title, franchises, liberties, and interest, mentioned in said decree as being the property of the defendant the Western North Carolina Company, (Eastern Div- ision); when and where A. S. Merrimon became the purchaser of the same as the last, and highest bidder, at the price of Eight Hundred and Twenty-five Thousand Dollars, and was declared by us to be the purchaser thereof, and in our opinion the amount bid bv him is as much as said property is likely to bring at public auction for cash. We beg leave further to report that the said Merrimon in obedi- ence to the said decree, as well as the terms of sale imposed by ourselves, paid us the sum of ten thousand dollars at the time and place of sale. And that he signed a memorandum of the terms and conditions of sale, whereby he promised and agreed to comply with all the directions, and requirements set forth in the decree, and imposed by us in pursuance thereof. We further report that the said sum of ten thousand dollars so as aforesaid paid us, we have placed on deposit in the Bank of Messrs. Wilson & Shober, at Greensboro, in said District, and ask the sanction of the Court thereto. All of which is respectfully submitted, June 22, 1S75. B. S. Gaither, T. Ruffin, Marcus Erwin, Thos. B. Keogh. To the Clerk of the Circuit Court of the United States, at Greens- boro, in and for the Western District of North Carolina : Col. Robert Strange, Attorney, &c, &c, is authorized by us to have and control the mortgage bonds of the Western North Caro- Order for cer- 00 tain bonds, lina Eailroad Company, which we turned over to you under the order of said Court, the same, being the bonds which we control- ed as counsel for Hiram Sibley in the suit pending in said Court entitled : Henry Clews and Hiram Sibley and others against the Western North Carolina Railroad Company and others. Phillips & Merrimon, Raleigh, July 27th, 1875. Attorneys. (54) The Clerk of the Circuit Court of the United States for the We - tern District of North Carolina will issue the confirmation by the Court of this sale made of the Western North Carolina Railroad, deliver to the commissioners, Gov. Brogden, and Messrs. Armfie'd and Robinson, the bonds referred to in the within order of Messrs. Phillips & Merrimon. Edward Matthews, by his attorney, July 30th, 1S75. Robert Strange. In the Circuit Court of the United States, at Greensboro, and for the Western District of North Carolina, August 2d, A. D., 1S75. To the Honorable the Judge of said Court :■ The petition of Curtis H. Brogden, Governor of the State o North Carolina; R. F. Armfield, President of the Senate of said State; and James L. Robinson, Speaker of the House of Repres- entatives of said State, respectfully represent unto you, that bv virtue of an Act of Assembly of said State, entitled An Act : "in . relation to the Western North Carolina Railroad," Ratified the 13th day of March A. D., 1875, they are empowered as com- missioners, &c, &c, in behalf of said State to purchase the debts against the Western North Carolina Railroad Company, and to purchase the Railroad of said company, and the property apper- taining to the same to be made under a decree of the said Court made in the law entitled Henry Clews and Hiram Siblev, and others against the Western North Carolina Railroad Company, and others, now pending in said Court. That for good and valu- able consideration, they all the debts and bonds embraced Petition of c D y *- ne sai ^ Decree made in the said suit, and lease the same to be H. Brogden. produced in the Honorable Court, when required that said railroad and other property appertaining to it were bid off at the sale of the same under said Decree on 22d day of June last, first by A. S. Merrimon, for the price of eight hundred and twenty-five thousand dollars, and he gives cash check for ten thousand dollars of said purchase money, that on the ame day the said A. S. Merrimon, for good and valuable considerations, transferred his said bid for said property to your petitioners, for the said State, and your peti- tioners paid the said ten thousand dollars to the commissioners, to sell said road, &c, required to be paid in advance, and the said A. S. Merrimon received from said commissioners to sell (55) that your petitioners represented. The bidders for said property but for and in your petitioners offered in payment of the said pre- payment on the day of said sale. That your petitioners all will entitled in all respects to all the debts and bonds embraced by said decree, and have purchased duly assigned to them the bid of the said A. S. Merrimon for said property, and the premises are ordered. They pray your leave to make, and order at making them the creditors of record in said suit, and entitled to the benefits of said decree, and to substitute them as the bidders for said property in place of, the said A. S. Merrimon, and your petitioners will ever pray, &c. Dillard & Gilmer, Attorneys for Curtis H. Brogden, Governor of the State of North Carolina, R. F. Armfield, President of the Senate, James L. Robinson, Speaker of House of Representatives. The undersigned creditors, to wit : Hiram Sibley, Richard Norris, and Henry Lattimer, as partners in trade as Richard Norris & Son, Robert a' Lacaster, Herbert F. Atkinson, James C. Me- 8 £K|$ rriJ bane, Proudfit, the North Carolina Railroad Company, & Son - Rufus Y. McAden, the First National Bank of Charlotte, Erwin, Matthews, of Hiram Sibley, and others, and R. T. Wilson, President of the East Tennessee, Virginia and Georgia R. R. Co., respectfully represent that they have sold their respective claims in the decree mentioned in the foregoing petition to the said commissioners on the part of the State of North Caro- lina, and have no further interest in the same, and respectfully pray that the orders, and decrees, prayed for in the foregoing petition may be made. Norris & Son, by Phillips & Merrimon, A. S. Merrimon for himself as bidder of said property. R. Y. McAden, for himself, the First National Bank of Charlotte, the North Carolina Railroad (56) Company, Hiram Sibley, R. A. Lancaster, H. F. Atkinson, James C. Mebane, Proudfit, R. T. Wilson, President, &c. For value I transfer and assign to Curtis H. Brogden, Governor, &c, R. F. Armfield, President of the Senate, and James L. Rob- inson, Speaker of the House of Representatives, &c, commission- ers, &c, to purchase the Western North Carolina Railroad and the property appertaining to the same, &c, my bid for the said the Western North Carolina Railroad, and the other property, and Assignment of appertaining to the same made on the 22nd day of June, A. D., mon,' em " 1S75, and represent the Circuit Court of the United States, at Greensboro, in the Western District of North Carolina, to sub- stitute the said commissioners for myself as the purchasers of said property, and direct to them to be made to the State accordingly as they may ask. Given under my hand the 23d day of June, A. D., 1875. A. S. Merrimox. Henry Clews, Hiram Sibley, and others") Circuit Court of Against I United States. The Western North Carolina Railroad, t Western District of (Eastern Division,) Company & others. J North Carolina. To the Honorable the Judges of said Coui't : We, the undersigned, who are a majority of the commissioners appointed by this Court to sell the Western North Carolina Rail- road, (Eastern Division,) beg leave to file this report supplemental to that heretofore filed in this cause. We respectfully report that on the day of the sale of said pro- perty in the city of Salisbury, and after their report of sale was prepared, stating that A. S. Merrimon was the purchaser as the last and highest bidder at the sum of eight hundred and twenty - five thousand dollars, and had paid in to us the sum of ten thous- and dollars, the said Merrimon, in our presence assigned his said bid to Curtis H. Brogden, Governor of the State of North Caro- lina, R. F. Armfield, President of the Senate, and James L. Rob- inson, Speaker of the House of Representatives, commissioners, &c, to purchase said Western North Carolina Railroad, and its appurtenances, for the State of North Carolina, and directed that they should be substituted for himself as the purchasers thereof, , and at the same time and place the said State commissioners, act- Supplemental r iep'tofcom-i n gr f or an d i n behalf of the State of North Carolin-, accepted said m'rsofsale. Q ■ . , assignment of his bid from the said Merrimon, and requested to be reported as the purchasers of said properiy, but as they were not (57) then prepared to pay to the undersigned the sum ot ten thousand dollars, according to the requirements of your Honor's decree and the terms of our sale, we declined to change our report of sale until such payment of ten thousand dollars should be made by said 'State commissioners. We beg further to report that the said commissioners, acting for and in behalf of the State of North Carolina, have since paid to the undersigned the said sum often thousand dollars, and declare themselves ready and willing on the part of this State of North Carolina to comply with all the terms of our sale, and the re- quirements of your Honor's decree. We do therefore in compliance with this request, and directions of the said Merrimon, and the assent of said State commissioners, report the State of North Carolina as the.purchaser of said property at the said sum of eight hundred and twenty-five thousand dollars. All of which is respectfully submitted this the ad day of August 1875. Thomas Ruffin, Com'r. B. S. Gaither, Com'r. Thomas B. Keogh, Com'r. In the Circuit Court of the United States at Greens&oro, in and for the Western district of North Carolina, August 12, 1875 .* Henry Clews, Hiram Sibley and others, ] against ! The Western North Carolina Railroad Com f pany, (Eastern Division,) and others. J The undersigned commissioners, acting under an order of this Honorable Court, heretofore made, directing them to examine and cenation^y cancel the bonds issued by the Western North Carolina Railroad Commisrs Company, (Eastern Division,) and proven in the above entitled cause, beg leave, respectfully, to report that they have performed their said duties. They find that J. C. Mebane has filed 5 bonds, each for $1,000, and numbered respectively, 506, 507, 508, 509 and 510, which cor respond with the proof made in this cause. That H. F. Atkinson has filed five bonds, each for $1,000, and numbered respectively, 516, 517, 518, 519, 520, which correspond with the proof. That R. A. Lancaster has filed 5 bonds, each for $1,000. numbered respectively, 501, 502, 503, 504, 505, which correspond with the proof made in this cause. (5S) That J. O Proulfit has filed 5 bonds, each for $1,000, numbered respectively, 511, 512, 513, 514, 515, which correspond with the proof made in this cause. That Norris & Son have filed 24 bands, each for $1,000, and num- bered respectively, 542 to 545, inclusive, and 571 to 590, inclusive, which correspond wich the proof made in the cause, except that three bonds have one coupon cat from each. That the North Carolina Railroad Company have filed 39 bonds, each for $1,000, and numbered respectively 251 to 275, inclusive, and 487 to 500, which correspond with the proof in the cause, ex cept that each bond has three coupons cut off. That the First National Bank of Charlotte has filed 29 bonds, each for $1,000, and numbered respectively 6 to 26, inclusive, 484 to 486, inclusive, and 551 to 555, inclusive, which correspond with the proof in the cause, except that the last five have one coupon cut from each. That said National Bank has also filed 70 other bonds, each of the value of $100, and numbered respectively, 2,881 to 2,950, which cor responds with the proof. That Hiram Sibley has filed 512 bonds, each for $1,000, and num- bered respectively, 601 to 625, inclusive, 26 to 250, inclusive, 676 to 700, these last having one coupon cut from each, 521 to 540, inclu- sive, 591 to 600, inclusive, 276 to 483, inclusive, also 250 bonds, each for $100, and numbered respectively, 2.951 to 2,970, inclusive, 3,051 to 3,192, inclusive, 2,971 to 3,050, inclusive, and 3,193 to 3,200, in elusive. That R. Y. McAden has filed 70 bonds, ea^h for $1,000, and num bered respectively, 1 to 5, inclusive, 546 to 550, inclusive, with one coupon cut from each, 561 to 570, inclusive, with one coupon cut from each, 626 to 675, inclusive, of them last, from 626 to 645 have one coupon cut, and from 646 to 675 have two cut; also 1,050" bonds, each for $100, and numbered respectively, 1,451 to 1,500, inclusive, and 1,551 to 1,600, inclusive, 1,601 to 1,700, inclusive, 1,301 to 1,450, inclusive, 1,760 to 1,950, inclusive, 1,201 to 1,300, inclusive, 1,701 to 1,759, inclusive, all with one coupon cut, 1,951 to 2,200, inclusive, with three coupons cut, and 2,701 to 2,800, inclusive, with two cou pons cut. These make an aggregate for said McAden of $175,000, which is $8,000 less than he made proof of in the cause. (59) In addition to the above there are bonds of which no proof has been made, to the amount of $11,000. All of said bonds filed, have been duly cancelled and filed with the clerk of this Court, all of which is respectfully submitted. Thomas Rofftn, ") ~ . . Thomas B. Keogh. / Commissioners. Circuit Court of the United States^ Western District oj North Carolina ; Hiram Sibley and Henry Clews, ~\ • against i The Western North Carolina Railroad Co., [ (E. D.,) and others. j To the Hons H, L. Bond and R. P. T>ich, Judges of said Court .- We, the undersigned commissioners, appointed to examine and cancel the bonds issued by the above defendant, respectfully report: That they have received and cancelled each bond proved in this Report otrom- suit, and deposited the same in the office of the clerk of this Court. That in obedience to the order of Your Honors they have deliv- ered to the State of North Carolina, the purchaser, a deed to all the property of the said defendant which was described in the decree made herein. Thos. Ruirrsr, ) ^ . . ThOS, B. KEOGH.| C ° mmlSS10nerS ' Henry Clews, Hiram Sibley, Richard Norris and) In the Circuit Henry Lattimer, as partners in trade as Richard I Court of the Norris & Son, Robert A. Lancaster, Herbert F. \ United States, Atkinson, James C. Mebane, Proudfit, and the j Western Dis North Carolina Railroad Company. Plaintiffs, J trict of N. C, Against The Western North Carolina Railroad Company, ) (Eastern Division,) Tod R. Caldwell, Rufus Y. I McAden, the First National Bank of Charlotte, \ John Rutherford , and others, Defendants. J City, County, and State of New Tork. — 6'^'. . , Assignment nr Know all men by these presents : That I, Hiram Siblev, of the 5- Sibley to , Edward Ua- city of Rochester, and State of New York, lor and in considera- thews. tion of the sum of two hundred and seventy thousand dollars to me in hand paid by Edward Mathews, of the city, county and State of New York, the receipt whereof is hereby acknowledged, have sold, assigned, transferred and set over, and by these presents, do (6o) sell, assign, transfer, and set over unto the said Edward Matthews, all the right, title, interest, property and possession which I now have or which I may hereafter have in and to a certain suit above set forth by its title, new pending in the United States Circuit Couit for the Western District of North Carolina, wherein Henry Clews, myself and others are parties plaintiff, and the Western North Carolina Railroad company, (Eastern Division,) Tod R. Caldwell, and others, are parties defendant; and also in, and to the judgment or decree of foreclosm'e heretofore entered therein, and also in and all to moneys recovered or to be recovered therein, and there under which may be or become due, owing, and coming to me, the said Hiram Sibley, also all right, title, ownership, property and possession, which I, the said Hiram Ssbley. have or may have in and to, and in respect to any of the first mortgage bonds of the said the Western North Carolina Railroad company, (Eastern Division,) mentioned and described in the pleadings, and decree in said suit, and also all the right, title, claim, interest, and demand which I, the said Hiram Sibley, may or can have, under any agree- ments or contracts connected therewith, now outstanding and un- paid, I, the said Hiram Sibley, by these presents, intending to convev and actually conveying unto the said Edward Mathews, all my right, title, interest, property, ownership and claim ot every kind, and nature soever in, and to any, and all the mortgage bonds of the said the Western North Carolina Railroad company, Eastern Division, both endorsed and unendorsed, and also in, and to any shares of the capital stock of the said company, more especially all my right, title, interest, property, and claim in, and to an assignment of a certificate of some 8,000 shares of the capital stock of said company, owned and held by various shareholders, and by them assigned to Samuel McD Tate, and by the said Tate assigned to me, the said Hiram Sibley, on or about the twelfth day of Apil, eighteen hundred and seventy-two. Subject, however, to all proceedings had and contracts taken, and entered into with reference to the collection of the said mort- gage bonds, and the foreclosure of the mortgage executed by the said railroad company to support the same, and subject also to the operation of a contract heretofore made, and entered into between me, the said Hiram Sibley, and R. T. Wilson, President of the East Tennessee, Virginia and Georgia Railroad compan}', bearing date the seventh day of November, eighteen hundred and seventy- (6i) two, since assigned by the said R. T. Wilson as President as afore- said to other parties, and now claimed to be owned and controlled by the North Carolina Railroad company, which contract provides among other things for a sale on or before the seventh day of No- vember next ensuing the date of these presents under certain speci- fied conditions, which sale and conditions the said Edward Ma- thews is to make and perform in the manner therein provided, if performance be tendered within that time by the said Wilson, or his assigns. It is hereby distinctly understood, declared, stipulated, and agreed, that all assignments, transfers, and sales herein and hereby made, and intended to be made, are made' without warranty, by or recourse to, and upon me the said Hiram Sibley, It is hereby further distinctly understood, declared, stipulated, and agreed, that the payment of one hundred thousand dollars in stock at par of the Southern Railroad Security Company, hereto- fore made to me, the said Hiram Sibley, specified and alluded to in the contract aforesaid to be retained by me the said Hiram Sib- lev in any event. It is hereby further distinctly understood, stipulated, and agreed that the said Edward Matthews is hereby substituted to any and all the rights of use the said Hiram Sibley, and any responsibilities touching the mortgage bonds, stock and suit aforesaid, and touch- ing the contract aforesaid and all contracts and proceedings relat- ing thereto, and connected with the foreclosure proceedings in the said suit. In witness whereof I, the said Hiram Sibley, have hereto, set my hand and seal this twenty-seventh day of October, eighteen hundred and seventy- four. Hiram Sibley. Signed, sealed and delivered in the presence of Chas. E. Whitehead, Chas. C. Jonrs, Jr. State of New York, City and County of New York : — SS. Be it remembered that on this thirteenth day of April, A. D., 1875, before me, Edwin F. Coney, Jr., a commissioner for the State of North Carolina, duly commissioned, and dwelling in said city, personally appeared Charles E. Whitehead, the subscribing witness to the foregoing instrument signed by Hiram Sibley, to me personally known, who on. oath duly proves the execution there- Minutes of Decree. (62) of, for the purposes therein expressed. In witness whereof I have hereunto set my hand and official seal. [Seal.] Edwin F. Coney, Jr., Commissioner for the State of North Carolina in New York. In the Circtiit Court of the United States for the Western Dis- trict of North Carolina, at Greensboro, August 2nd, 1S75 .• Hiram Sibley and others, vs. The Western North Carolina Railroad Company and others, mingsaieby The report and supplemental report filed, of the commission om rs, c. erg a 'pp j n ted heretofore to sell the Railroad and property appertaining to the same, are hereby in all thing's ratified and confirmed, and let a decree to that effect be drawn, and directing the said commissioner s to sell said property, to execute title for the same to the State of North Carolina, on the surrender of the bonds mentioned in the de cree to them, and a satisfaction of the decree being entered by said commissioners, and besides, other bonds, mentioned in the contract and certificates of individual stock to the State. The Receiver is to deliver possession and control of the Riilroad and all its appurtenances, to such person or persons as he may be advised by the Attorney General of the State is entitled under the laws of the State to receive the possession and cuntrol of the same. Commissioners are allowed six hundred dollars each. All costs of the cause, and costs incident thereto, including costs of advertising, are to be paid by the Receiver, out of the earnings of the Road previous to the 1st day of May, 1875, and the residue of such earnings prior to the 1st day of May, 1875, to be paid to the creditors in the decree, or to their authorized agent, and the case for the minutes of decree. Robt. P. Dick, Judge. Circuit Court of the united States, Western District of North Carolina, at Greeizsboro, 1st Monday in August, 1875 : Henry Clews, Hiram Sibley, Richard Norris, Latimer, as part- ners in trade, as Richard Norris & Son, Robt. A. Lancaster. Her- bert T. Atkinson, James C. Mebane, Proudfit, and the North Carolina Railroad Company, Plaintiffs, AGAINST The Western North Carolina Railroad Company, (Eastern Division, ) (6 3 ) Tod R. Caldwell, Rufus Y. McAden, the First National Bank of Charlotte, Jokn Rutherford, Hiram Kelley, Thos. Y. Greenlee, Ja:nes Greenlee, Miry Carson, A. H. Erwin, N. H. D. Wilson, assignee of the Bank of Cape Fear, R. M. Walker and Win. H. Howerton, Thos. G. Walton, W. A. Eliason, Richard A. Caldwell, J. J. Motfc, A. H. Shuford, Rufus L. Patterson, Wm. H. Craig, John I. Shaver, J. R. Ellis, N. W. Woodfin, S. H. Flem- ming, claiming to be President and Directors of the Western North Carolina Railroad Company, Defendants : In this cause, Burgess S. Gaither, Marcus Erwin, Thomas Ruffin and Thomas B. Keogh, heretofore appointed by a decree of this Court to make sale of the Western North Carolina Railroad, (East- ern Division,) extending from the E ist terminus thereof, in the city of Salisbury, in the State of North Carolina, to its Western termi- nus, in the county of Buncombe, with all its fixtures and appurten D fl ances, and franchises, as specified in said decree, having made report ?>/"£ sale t0 of their sale, showing A. S. Murrimon to be the purchaser, at eight hundred and twenty five thousand dollars, and said commissioners having, since the m iking of s lid report, by leave of the Court, filed a supplemental report, showing the transfer of bid by said A. S$ Merrimon to the State of North Carolina, represented in that be- half by Cartis H. Brog den, Governor, R. F. Armfield, President of the Senate, James L. Robinson, Speaker of the House of Represen- tatives, under an act of the Geueral Assembly of said State, ratified the 13th day of March, 1875, and further showing, that the State of North Carolina, acting by her said commissioners, had made the cash payment of ten thousand dollars, required by the terms of the original decree in the cause, and had acquired and become the owner of all the mortgage bonds provided for and in the former decree, and in all things was ready and willing to do and perform whatso ever this Court should order and direct, and the said State of North Carolina, acting by her said commissioners, and the said A. S. Mer- rimon for himself as the origin d bidder and purchaser, and all the holders of the mortgage bonds provided for and merged in the for- mer decree aforesaid, having by leave of the Court, filed their peti tions respectively, wherein the transfer of the bid by A. S. Merrimon to the State of North Carolina, and also the ownership by the said State of all of said mortgage bonds is admitted, and a prayer made that the State of North Carolina should be accepted as the purchas- (6 4 ) er, and title a made to her, and no exception being taken to said re- ports of sales. Now, in consideration thereof, and it appearing to the Court that the sale was for a fair price, it is ordered, adjudged and decreed by the Court that the said sale be in all things con- firmed, and that the State of North Carolina be held and taken as the purchaser, in the place of A. S. Merrimon, and that the commis- sioners to make sale be allowed for their services in this behalf, in- cluding the execution of deed hereinafter ordered, the sum of six hundred dollars, each to be taxed in the bill of costs to be paid, as will be hereafter ordered and directed. And the holders and owners of the mortgage bonds provided for in the former decree, and the said commissioners representing the State, having made a contract in writing in relation to the transfer of their said bonds, and their rights and interest in the original deciee aforesaid, to the said State, and defining the mode and manner and proportion of payment to be made to said holders in case the said State should become the purchaser, at a sum less than the aggre- gate of their several amounts, and also therein agreeing as to the disposition, and how to be made, of all the net funds in the hands of William A: Smith, the Receiver of the said Railroad Company and its property, up to the 1st day of May, 1875, and also as to the rest in his hands on and since said day, and also containing an agreement for the surrender of the Railroad and all its property, by the Receiv- er, to .the State of North Carolina, and the said within agreement, with the exhibits therein referred to and annexed thereto, being filed in this cause by the contracting parties, with the consent of the Court, and that the material points thereof may be regarded and provided for in the decree, and in any others which may be hereaf- ter entered in the course of this cause. Now, this cause, coming on to be heard, on the papers formerly read, the original decree of foreclosure and sale heretofore made, and the order of confirmation of the sale of said Railroad to the State of North Carolina, as the purchaser, and the said written contract filed in the cause, by and between the holders and owners of the mortgage bonds, and the State of North Carolina, acting through her commissioners ; the exhibits accompanying and annexed to the same, and the same being debated by counsel and maturely consid- ered by the Court, it is thereupon declared b_y the Court : 1st. That the State of North Carolina is the purchaser of the iH.) "Western North Carolina Railroad, (Eastern Division,) and all its property and appurtenances, of any name, kind, and description, including all corporate franchises, rights, and interest, whatever, from its Eastern terminus, in the city of Salisbury, in said State of North Carolina, towards and unto the Western terminus thereof, in the county of Buncombe, in the same State, and that sai 1 State, through her commissioners hereinbefore mentioned, hath paid to the commissioners to make sale, the sum of ten thousand dollars, the cash payment required in the original decree, in part payment of the purchase money, and it is declared by the Court that the said State of North Carolina have become, and is the purchaser, at eight hun- dred and tweuty-five thousand dollars, and now owns all the mort- gage bonds provided for and merged in the former decree in this cause, amounting in the aggregate to a much larger sum than the purchase money aforesaid, which said bonds are now ready and ten- dered to the Court, by the commissioners representing the State, to be cancelled or marked as merge J in the decree, as may be directed. It is further declared by this Court, chat besi les the mortgage bonds provided for and merged, on the original decree, there are five hundred other bonds, making an aggregate of five hundred thousand dollars, but the same were never completed as required by law, for wan'u of the approval an 1 signature of the late Tod R. Cald- well, trustee, and were therefore invdid, and it is declared by the Court that said incomplete bonds are now in the hands of Edward Mathews, and by consent of said Mathews, are to be surrendered to the said commissioners of the State of North Carolina, and it is fur- ther declared that said Edward Mathews hath in his hands certifi- cates for about eight thousand shares in the capital stock of the Western North Carolina Railroad Company, and is the owner there of, which were owned by Samuel McD. Tate, and by him assigned to Hiram Sibley, and assigned by said Sibley to the said Edward Mathews, and it is agreed with written contract between the bond- holders and the State of North Carolina heretofore referred to, as filed in the cause, that the said certificate or certificates for eight thousand shares in the capital ssock of the Company, are to be as signed by said Edward Mathews to the State of North Carolina. It is further declared bj the Court that the North Carolina Railroad Co. claim?, or hts claimed,- title to the franchise and property of the Western Division of the Western North Carolina Railroad Co., un- der a contract made the 31st day of October, 1873, by and between (66) the Southern Security Company of the first part, said North Caroli- na Railroad Company of the second part, the East Tennessee, Vir ginia & Georgia Railroad Company of the third part, and W. A. Smith in the double capacity of agent and trustee of the first, sec- ond and third parts, and the fifth part, and the Court doth find that the said Eist Tennessee, Virginia & Georgia Radro id Company have agreed with the State of North Carolina, through the commissioners, to cause an assignment to be executed by the said North Carolina Railroad Company unto the State of North Carolina, of all the right, title, claims and interest of every kind it may have-under the said contract cf the 31st diy of October, 1873, in any mortgage bonds of the said Western North Carolina Railroad Company, -or under the decree heretofore enured in this cause, or in the said Western North Cirolina Riilroad. and other property of the siid Western North Carolina Railroad Company, in either the Eistern or Western Divis- ion thereof, or both, or however otherwise derived And it is de- clared that Rufus Y. MeAden 'hath agreed in writing with the State of North Carolina, in the contract filed in this cause, to make such good and sufficient deed or deeds, or assurances of title to the said State of North Carolina as counsel may direct, for the franchise and property, including the line of railway of the Western North Caroli- na Railroad, extending from the city of Salisbury to Paint Rock, and in said dee 1 or deeds to guarantee the title to the same to the ex tent provided and set forth in the first article of a contract made the loth day of May, 1872, between R. Y. MeAden, Richard T. Wilson, Chas. M. McGrehee and the East Tennessee, Virginia and Georgia Railroad, which contract, or a copy thereof, is annexed to the writ- ten contract made with the State of North Carolina, and filed amongst the records of this cause as aforesaid. It is further found as a fact, that the parties in their written agree- ment with the State commissioners aforesaid, have agreed that the net earnings of the Western North Carolina Railroad, in the hands of Wm. A. Smith, heretofore appointed Receiver, up to the 1st day of May, 1875, shall be liable, first, to pay ail expenses of the sale of the Road, all costs of the cause and all the allowances made, which may be made by the Court in the course thereof, and then the resi- due is to be paid out to, a id amongst the parties, and in the pro- portions mentioned in an article of agreement amongst themselves, annexed to the written contract made as aforesaid, with the State of North Carolina, and as to the earnings of said Railroad, on and since (67) the said first day of May, 1875, it is agreed that the same shall be paid over to the State of North. Carolina, deducting therefrom, the expenses incurred incident to the operating of the Road, since said 1st day of May, 1875. It is agreed by. the parties, anl the Court doth so further declare, that on the confirmation of the' sale by the Court, the sail Railroad and all its property, may be turned over to the State of North Car- olina, or her duly authorized-agent or agents, by the Receiver. On the foregoing declaration it ; is adjudged and decreed by the Court, that the bonds provided for and merged in the original decree, en- tered in this cause, mayobe surrendered by the commissioners of the State of North Carolina to Thomas Ruffid and Thomas B. Keogh, •who shall thereupon, by written or printed words on and across the face of each bond so surrendered, recite, that the same are merged in the said decree, and on the surrender of said bonds, and the marking of the same as merged, as aforesaid, it is ordered, adjudged and decreed, by this Court, that said T. Ruffin and T. B. Keogh shall see that Curtis H. Brogden, Grovernor, and R. F. Armfield, President of the Senate, and James L. R >binson, Speaker of the House of Representatives, representing the State of North Carolina, or some one or more of them, executes a receipt on the docket of the Court for the amount of the purchase money, and they shall, at the same time, pay over to the said commissioners representing the State, and include the same in said receipt, the ten thousand dollars of money which tliey paid down at the time of the sale, and these things being all done, it is ordered^ adjudged and decreed, by the Court, that Burgess S. Graither, Thomas Raffia anl Thomas B. Keogh, or a majority of them, do execute a deed for the said West- ern North Carolina Railroad, (Eastern Division,) and all the prop erty, franchises, rights and interest of every name and kind, unto the said State of Norch Carolina, and deliver to the said commission- ers of the State. ■< It is further adjudged arid decreed by the Cjurt, that Edward Mathews do surrender to the said cjmmissioners representing the State of North Carolina, the five hundred bonds in his hands, which were incomplete, making an aggregate of five hundred thousand dollars ; and also, that he assign over to the said State, and deliver the same to her commissioners aforesaid, the certificate or certificates he now holds for eight hundred thousand shares in the capital stock (68) of the Western North Carolina Railroad Company, the certificate, so required to be assigned, being the certificate the said Edward Ma- thews claims as assigned to him by Hiram Sibley. It is further ordered, a 1 judged and decreed, by the Court, that the E ist Tennessee, Virginia and Georgia Railroad Company, ac- cording to their undertaking with the commissioners of the State, do cause and procure the North Carolina Riilroal Company to execute, and it is hereby orderel that the sail North Cirolina Rail- road Company do execute an assignment to the State of North Car- olina of any and all rights, title, claim and interest of any name and kind, it may have in the Western North Cirolina Railroad, its fix tnres, appurtenances and franchises, in either the Eastern or West- ern Divisions thereof, or in both, and it is further ordered and ad- judged, and decreed, by the Court, thatRufus Y. MeAden do execute to the said State of North Carolina such deed or deeds as the coun- sel of the State may direct, for the line of Railway of the Western North Carolina Railroad, extending from the city of Salisbury to Paint Rock, and all the property and franchises belonging thereto, and that he, in such deed or deeds, do guarantee the title to the said State to the same extent as is provided and set forth in the 1st arti- cle of a contract made on the 15th day of May, 1872, and hereinbe fore referred to as annexed to the written contract between the bondholders and the State of North Carolina- It is further ordered, adjudged and decreed by the Court that of the earnings of the Railroad in the hands of Wm. A. Smith, the Receiver, up to the ist day of May, 1875, ne ' tne S£UC * William A. Smith, shall apply so much thereof, as is necessary to pay all the expenses of the sale of the Road, all the costs of this cause to be taxed bv the Clerk of the Court, all the allowances heretofore or in this decree made, and including the further sum of one hundred and fifty dollars, each to Thomas Kuffin, and Thomas B. Keogh, as compensation for their services in the cancellation of the bonds, and also including the costs of a copy which is hereby directed to be made bv the Clerk of the written contract between the bond- holders, and the State of North Carolina, together with all annex- ed exhibits or documents, and to be sent to the Governor of the State, and the residue the said Smith shall pay out to, and amongst the persons, and in the proportions mentioned in an Article of agreement executed by the parties concerned, and herein before referred to, and as to the earnings said Railroad on, and since the said (6 9 ) ist day of May, 1875, it is adjudged by the Court that the same be paid over bv said Receiver to the State of North Carolina, retain- ing therefrom the necessary expenses incurred in operating the road since that day. And it is further ordered, adjudged, and decreed by the Court that as soon as a deed is executed, and delivered to the State of North Carolina as herein ordered to be done, the Receiver, William A. Smith do surrender, and deliver the said Western North Car- olina Railroad, and all its property unto such agent or agents of the vState as may be certified to him by the Attorney-General of the State, to be proper persons, to receive the same. And the cause is continued for the carrying out the referees' reports as to the State of accounts between the Railroad, and Wm. A. Smith, the Receiver, and when said reports come in this cause mav then be brought on for further orders and directions as to that or any other matter omitted in this decree. Robt. P. Dick, U. S. District Judge. An agreement made and entered into, this the 17th day of April, 1875, by and between the East Tennessee, Virginia & Georgia Railroad Company, a corporation created and existing by the laws of Tennessee and Georgia, acting by and through its President Richard T. Wilson, party of the first part, Rufus Y. McAden, of the city of Charlotte, North Carolina, of the second part, Edward Mathews, of the city and State of New York, of the third part, Articles of J r ■> Agreem't bes and the Governor of the State of North Carolina, Robert F. Arm- tween Wil- son, ) Presid't, field, and Tames L. Robinson, commissioners appointed under an and state of N* C 9,rol i 11a Act of the General Assembly of the State of North Carolina, en- titled an act in relation to the Western North Carolina Railroad ratified the 13th day of March, 1875, parties of the fourth part; Whereas at the April Term, 1874, of this Circuit Court of the United States for the Western District of North Carolina, at Greensboro, in a certain suit therein pending wherein Hiram Sib- ley and others, plaintiffs, and the Western North Carolina Rail- road Company, and others, defendants, a decree of foreclosure, and sale of the railroad, franchises, and other property of said com- pany was rendered as by said decree duly entered in said Court will appear, and whereas the said parties of the fourth part are authorized by the said act of the General Assembly hereinbefore referred to, to purchase the said railroad, and all the property ap- pertaining thereto, at the sale to be made under said decree, and (70) any claims against the said railroad company as by said Act will appear. And whereas, the said Rufus Y. McAden, party of the 2nd part is holder of $183,000 of bonds (mortgage bonds,) which are to be paid out of the proceeds of sale as provided in said decree, and also is the owner and assignee of sundry docketed judgments against the company, and the North Carolina Railroad company, a corporation created and existing under. the Laws of North Caro- lina, also claims an interest in a number of the mortgage bonds, secured by said decree, and claims to control the said decree, and a title to the franchise and property of the Western Division of the said Western North Carolina Railroad company, under a contract made 31st of October, 1873, by the Southern Security company; of the first part; said North Carolina Railroad company of the second part, the said the East Tennessee, Virginia & Georgia Railroad company of the third, the said R. Y. McAden, of the fourth part, and W. A. Smiih in the double capacity of agent and trustee of the parties of the first, second and third part, of the fifth part as will appear by said contract, a copy of which is hereto annexed, and the said Edward Mathews is the holder, and claims to be the owner of the first mortgage bonds mentioned in said decree as held by Hiram Sibley, that is to say five hundred and thirty-seven thousand dollars of said bonds, and also five hundred thousand dollars of said bonds, which are unsigned by the trustees, and not included in said decree, under a contract and deed of assignment from Hiram Sibley to aid Edward Mathews, bearing date the 27th of October, 1874, as will appear by said contract. Now it is agreed by the said party of the first part for, and in consideration of the acts and agreements to be executed by the said parties of the fourth, hereinafter to be set forth and enumerated to cause to be assigned by the said North Carolina Railroad com- pany to the said parties of the fourth part, all the right, title, inter- est, and claim of any kind which the said North Carolina Railroad company has, or claims to, or in said mortgage bonds, or said decree, or said railroad, or other property of the Western North Carolina Railroad company, in either the Eastern or Western Divi- sion of the same, or in both divisions thereof, acquired by or under, the said contract between the said Southern Security company, the said North Carolina Railroad company, and others, hereinbefore referred to, or in any other way, and the said Rufus Y. McAden, (70 of the second part, for the consideration aforesaid, agrees to sur- render to the parties of the fourth part, the said one hundred and eighty-three bonds, held by him as aforesaid, and also thirty-six bonds, referred to, in said decree as owned by the First National Bank of Charlotte, or to deposit said bonds in the Raleigh Nation- al Bank within days from the date of these presents, or at some other place that may be agreed on so that the said bonds may be subject to the order, and control of the parties of the fourth part, and the said party qf the second part further agrees to make such good and sufficient deed or deeds, or assurances of title to the said parties of the fourth part as counsel learned in the law may direct to the franchises, and property including the line of railway of the Western North Carolina Railroad company, extending from Salisbury to Paint Rock, gauranteeing the title to the same to the same extent as as provided in the first Article. of a contract made on the 15th day of May, 1872, between Rufus Y. McAden, Rich'd T. Wilson, Charles M. McGehee, and the East Tennessee, Vir- ginia & Georgia Railroad, acting through its President, R. T. Wil- son, a copy oi which contract is hereto annexed, and it is understood, and agreed that the said first Article of said contract forms part of this agreement as fully and completely, and shall be as binding on said McAden as if said Article were herein repeated, and set forth only substituting the parties of the fourth part for, and instead of the said Richard T. Wilson and Charles M. McGehee, so that the title to the said franchise, railroad and property, may be conveyed to and rest in the parties of the fourth part And the said Edward Mathews, party of the third pait, agrees t ) surrender to the said parties of the fourth part, the said five hun- dred and thirty-seven thousand dollars of first mortgage bonds secured to be paid in said decree to Hiram Sibley, and twenty thousand dollars of other mortgage bonds secured to be paid in said decree to Atkinson, Proudfit, Lancaster and Mebane, and five hundred thousand dollars of mortgage bonds, which are unsigned by the trustees, and any other of the said mortgage bonds which may be held or controled by him or to deposit said bonds in the Raleigh National Bank within days from the date of these presents, or at some other place which may be agreed on so that said bonds may be subject to the order and control of the parties of the fourth part; and the said party of the third part (72) doth agree to assign, and doth hereby assign, transfer, and set over to the said pai-ties of the fourth part all the right, title, interest, and claim of any kind to any shares of the capital stock in the Western North Carolina Railroad company, and especially all his right, title, and claim to an assignment of a certificate of some eight thousand shares of the capital stock of said company held by various stockholders, and by them assigned to Samuel McD. Tate, and by Tate assigned to Hiram Sibley, on or about the 12th day of April, 1870, and by Sibley assigned to the party of the third part, and the said party of the third part agree to assign, and doth hereby assign and ti'ansfer to the parties of the fourth part all the right, title, and interest in said decree or in the monies to be re- covered thereby, or thereunder, and in the mortgage bonds secured to be paid by said decree which he may have acquired under the contract or deed of assignment from Hiram Sibley hereinbefore referred to; a copy of which contract or deed of assignment is hereto annexed. , And the said parties of the first, second, and third part do agree to buy up and get the control of in proportion to their respective interest in the eight hundred and fifty bonds hereinafter ascertain- ed and set forth, all the mortgage bonds included in said decree, and for payment of which provisions is made in said decree, and also ten bonds heretofore held by the Tredegar Company, which are not now held and controled by the parties of the second part for the surrender of which provisions has heretofore been made, and deliver the said bonds to the said parties of the fourth part or deposit the same in the Raleigh National Bank or in some other place to be agreed on so that the said bonds may be subject to the order and control of the parties of the fourth part, or else to pay to said parties of the fourth part as soon after sale as practicable, the pro rato of the proceeds of sale to be made under said decree, which will be required to pay to the holders of said bonds, and to which the holders will be entitled under said decree, and they do further agree to assign, and they do hereby assign and transfer to the pai'ty of the fourth part, all the title, interest, and control, which they or either of them have to, or in said decree and in the mort- gage bonds secured to be paid thereby, and all the interest they may have in the proceeds of the sale to be made under said decree. And the said parties of the fourth part the commissioners afore- said in consideration of the acts, covenants, and agreements to be ( 73 ) executed and performed by the parties of the first part, and second, and third part as hereinbefore set forth, do covenant and agree to, and with the other parties hereto, that they will purchase the Wes- tern North Carolina Railroad and all the property appertaining thereto at the sale thereof made under said decree so far as they are empowered under the said act of the General Assembly to do, and as soon as said sale shall have been confirmed by the Court, and the said commissioner as purchaser, shall have been let into the possession of said premises as provided for in said decree, the said parties of the fourth part will forthwith issue the said mortgage bonds in the name of the Western North Carolina Railroad com- pany as authorized by said Acts to the amount of eight hundred and fifty thousand dollars, that is to say eight hundred and fifty bonds of one thousand dollars each with coupons payable in May and November the first; coupons shall be due and payable on the first day of November, iSj^, and to secure the payment of said bonds and interest, shall thereupon without delay execute a mort- gage deed with power of sale to such trustee or trustees as may be agreed on conveying the railroad, franchise and other property of said company, and as soon as such deed shall have been executed, will cause the same to be recorded in the Register's office of Ro- wan county, and the said party of the fourth part as soon as said bonds shall be executed will deliver to the said parties of the first, second, and third parts, the said eight hundred and fifty bonds to be divided among said parties in the proportion agreed upon in the contract this day made between the said parties of the first, second and third part which said contract is hereto attached as a part of this agreement. It is further agreed that any money in the hands of the Receiver or belonging to the company up to the 1st day of May, 1875, after deducting all expenses of sale, and all costs, and allowances, which may be made by the Court, shall be divided in the same proportion, and among the same parties as expressed above in regard to the bonds. The said bonds and money being in payment and satisfaction of the liens, bonds and other claims of the parties of the first, second, and third parts hereinbefore set forth. That if said parties of the fourth part shall purchase said rail- road, they shall take immediate steps so far as authorized by said act for the appointment of the three commissioners named in said act, to manage the affairs and will proceed as rapidly as practic- able to the construction and completion of said railroad. (74) And it is expressly understood and agreed that if the said parties of the fourth part are prevented from purchasing, the said parties of the first, second, and third part, may purchase the same, and shall by such purchase acquire an interest in said railroad, and property in the same proportion as they will have in the said eight hundred and fifty bonds as hereinbefore ascertained, and set forth, and if any other person shall purchase, then the said parties of the first, second, and third part shall have the same interest, and in the same proportion in the proceeds of sale. In case the parties of the first, second, and third part or any ot them shall purchase, as aforesaid such purchaser shall on applica- tion of the said parties of the fourth part, or other commissioners who may by law be appointed in their place, with authority to Carry out this agreement, assign and transfer to said party of the fourth part or such other commissioners as the case, may be the Said railroad and other property upon the same considerations, and for the purposes hereinbefore set out. And in the event that the parties of the fourth part shall not be- come the purchasers of said railroad, and property, and shall not have the same assigned and transferred to them by the said parties of the first, second, and third part as hereinbefore provided, then and in that event the said parties of the fourth part shall re-convey and assign to the parties of the first, second, and third part all the rights, interest or claims of aivy kind which the parties of the fourth part may acquire, or become entitled to under this agreement, and the assignment made to them by the North Carolina Railroad company. And in the event the said parties of the first, second, and third parts shall become the purchasers as aforesaid, then the parties aforesaid shall be entitled to use the bonds and other securities to enable them to make such purchase. In witness whereof the said parties hereinto set their hands this the 17th day of April, A. D., 1S75. The East Texx., Virginia & Ga. R. R. Co., by R. T. Wilson, President, R. Y. McAden, Edward Mathews, C. H. Brogden, Governor of N. C, R. F. Armfield, J. L. Robinson. In presence of W. N. H. Smith. (75) Articles of agreement entered into, this the seventeenth of April 1875, between Edward Mathews, of the State of New York, as party of the first part, the East Tennessee, Virginia and Georgia Railroad Company, a corporation created and existing under the laws of the States of Tennessee and Georgia, as party of second part, and Rufus Y. McAden, of the State of North Carolina, as a party of the third part, witnesseth : Eirst. The parties aforesaid have this day entered into a contract A*r t i c les bf L ^ agreeme i be- with the Governor of the State of North Carolina, Robt. F. Armfield tween Ediv'd Mathews t: and James L. Robinson, in their official capacity as a board of com- ah. and >u- A den . missioners, created under an act of the Legislature of the State of North Carolina, entitled, "an Act in relation to the Western North Carolina Railroad, ratified on the (13th) thirteenth day of March, 1875," by which they have respectively sold to said commissioners all of the securities in the Western North Carolina Railroad which they have heretofore acquired, and for a better understanding of said contract with the commissioners aforesaid, reference is hereby made to the same, a copy of which is hereto attached and made a part of this contract. Second. Of the bonds to be received of the commissioners afore- said, under the annexed contract, and of the money to be received from the Receiver, or the Court, in the foreclosure proceedings re- ferred to in said contract, there shall be applied sufficient to pay what may be required to satisfy the claim of the North Carolina Rail- road Company, as per agreement made with it for the purchase of such bouds as it holds against the Western North Carolina Railroad Company, and also, whatever may be allowed either by purchase or otherwise, to Norris & Sons, of Philadelphia, for their bonds on the Western North Carolina Railroad Company. Also, what has been paid by R. Y. McAden for the bonds on the Western North Carolina Railroad Company, which he has purchased of the Tredegar Compa- ny, at Richmond, Va., to wit : Twenty five cents on the dollar, and interest on same from date of purchase. Third. Also one bond in hands of Henry Clews. The remainder of the bonds and money shall be pro rated among tihe parties to this agreement in proportion to the debts due them, as' specified in this agreement. To-wit : Edward Mathews the sum of two hundred and eighty-six thousand six hundred and sixty dollars. The East Tennessee, Vir- (76) » ginia and Georgia Railroad Company two hundred and forty- one thousand nine hundred and forty dollars. E. Y. McAden three hundred and forty two thousand dollars. The above debts to be discharged by the bonds and money aforesaid in the propor tions, as the said debts stand to the amount of bonds and money. The bonds and money shall be received by the respective parties or their agents, in the above proportions from the commissioners and the Court. Fourth. In case the commissioners fail to consummate the pur- chase and payment for the Road aforesaid, as contemplated by the contract with them ; then, and in that case T it shall be purchased by the parties in this agreement, and the securities mentioned in the contract with the commissioners shall be used in paying for same, and the property shall be owned by the parties to this agreement in the same proportion as the debts aforesaid shall stand to the whole property. If from any cause the property shall be purchased by parties other than these mentioned in this contract, then the money arising from such purchase shall be divided in proportions as above described. Edward Mathews, The East Tenn., Virginia & Georgia Railroad Co., (By R. T. Wilson, President.) AriJesbetw'n. R- Y. McAden. c. luthern Ray Sec'y Co.. Mc- These articles of agreement made and entered into by the South- Aden, Wilson ° J & McGehee. ern Railway Security Company, a corporation created and existing under the laws of the State of Pennsylvania, as party of the first part, R. Y. McAden, of Charlotte, North Carolina, as party of second part, Richard T. Wilson, of New York, C. M. McGehee, of Knoxviile, Tennessee, as party of the third part, the East Tennessee, Virginia and Georgia Railroad Company, a corporation created and existing by virtue of the laws of the States of Tennessee and Georgia, as par- ty of the fourth part, witness : Whereas, The party of the third part, at the instance and as the representative of the party of the first part, and for benefits to result to the party of the fourth part, entered into a contract with the party of the second part, bearing date of the 15th May, 1872, a copy of which contract is hereto annexed, and to which reference is made for the purchase and procurement of title to both divisions of the Western North Carolina Railroad, extending from^ Salisbury, North (77) Carolina, to a point on the line between the States of North Carolina and Tennessee, at, or near Paint Rock ; and, Whereas, On the 7th day of November, 1872, the party of the fourth part and Richard T. Wilson being the same person named, as party of the third part part, and Hiram Sibley, of the State of New York, b} 7 and with the knowledge and consent of the party of the second part, and at the instance of the party of che first part, entered into a contract for the purchase of certain stocks in, and bonds on, the Western North Carolina Railroad Company, a copy of which contract is hereunto attached, and reference is hereby made to it for better understanding of the same ; And whereas, It is now deemed to be for the interest of all the parties to the contracts before referred to, to substitute the party of the first part, instead of, and in the place of the party of the third part, to all intents and purposes, and as fully as though the party of the first part had have been the original contracting party in the aforesaid contracts, both of which were made at the instance of the party of the first part, and for its benefits ;' and this fact was so stated at the time the said contracts were made, and was so under- stood by the parties hereto. Now, therefore, it is agreed as follows : 1st. This contract shall be deemed as being legally executed where it is properly signed by the first, second and third parties herein named, so far as it applies to them collectively and respectively, and when the same is legally executed by the party of the fourth part, it shall take effect as to wit : 2nd. It is agreed by the parties hereto, that the party of the first part is hereby substituted in the same place, and stead of the party of the third part, that is to say, in the room place, and stead of Richard T. Wilson and C. M. McGehee in the contract bear- ing date as aforesaid, between themselves and the aforesaid Rufus Y. McAden, and the aforesaid East Tennessee, Virginia & Geor- gia Railroad company, and the aforesaid Rufus Y. McAden, (and the- aforesaid East Tennessee, Virginia & Georgia Railroad com- pany,) hereby fully, accept the party of the first part, and hereby release and fully discharge the aforesaid Richard T. Wilson and C. M. McGehee irom all connection with and responsibility, and liability for, or, in any manner growing out of the contract afore- said, it being understood and argred that the party of the first part hereby assumes all risk, responsibility, and liability as fully, and to all intents and purposes as if the name of the party of the first (78) part had have been originally used in the place, and stead of the aforesaid R. T. Wilson and C. M. McGehee in the contract with R. Y. McAden, and in the place and stead of the aforesaid R. T. Wilson in the contract with Hiram Sibley,, and the party of the second part hereby accepts the substitution as aforesaid, and grants unto the said R. T. Wilson and C. M. McGehee a full and com- plete release as herein stated. 3rd. It is further agreed, and the party of the first part hereby assumes the place and stead of the aforesaid R. T. Wdson in the contract with Hiram Siblev, of New York, the East Tennessee, Virginia & Georgia Railroad company as fullv as if the party of the first part had have been an original party to it in place of the said R. T. Wilson. - • 4th. It is further agreed that the party of the first part shall have the power and right to create such further liens upon the property and franchises of the Western North CaroLna Railroad company as soon as it may be in the power of the party of the first part to give liens on the Western North Carolina Railroad by rea- son of the party of the first part having become the purchaser or owner of the Western North Carolina Railroad or, by reason of the party of the first part being otherwise empowered to create liens upon the Western North Carolina Railroad in order to raise such money as the party of the first part shall from time to time deem it to be the interest of the parties hereto, to expend in order to per- fect the undisputed title to, and possession of the Western North Carolina Railroad, and to discharge all claims against the same. The party of the first part shall also have the power to promise, and when created, to give sucn amount, of common stock in the new company which it is proposed to organize, as may from time to time be by the party of the fir ,t part deemed advisable, in order to hasten the early possession of and undisputed title to the Wes- tern North Carolina Railroad, and to discharge all claims against the same, and the party of the first part agrees to hold the Western North Carolina Railroad when it shall come into possession of it, so far as it may have the right to hold it, first subject to all the liens previously created by, or as contemplated in the aforesaid contracts, and then to such liens as may hereafter be created, and secondly to the reorganization of the new company. 5th. Although in the original contract with the aforesaid R. Y. McAden, and the aforesaid C. M. McGehee, and R. T Wilson, and (79) the East Tennessee, Virginia and Georgia Railroad Co., it is stated that the said C. M. McGehee and R T. Wilson were the owners of the Cincinnati, Cumberland Gap, and Charleston Railroad, yet at the time it was known to the parties that the East Tennessee, Vir- ginia & Georgia Railroad company was the real owner of said road, and that it only stood in the name of the said R. T. Wilson arid C. M. McGehee as trustees, and it is hereby construed that all the obligation resting on the parties to this agreement or the afore- said contract respecting that road is to hold it, and put it into the new organization on the payment of the cost of said road and in- terest on the amount paid for it at the rate of seven per cent, per annum. 6th. The party of the first part is to re-organize the consolida- ted road provided for in said contract under a new company as soon as it mav be practicable to do so, but is not to be held for any individual, or personal liability to the party of the second part, it being the true intent and meaning of this and the contract pre- viously referred to, that the property alone is to provide the means to repay past outlays, and all future liabilities, and that he is to look .to the property alone for the means to make all the payments, and to discharge all the obligations incurred, with, or intended by the said contract. 7th. And it is hereby further agreed that the re-organized rail- road contemplated by the said contracts may be mortgaged up to the rate of $25,000 per mile, provided, however, that if the amount for which the same shall be mortgaged shall exceed the $18,000 of seven per cent, or $20,000 of six per cent, bonds provided in the said contract with the said party of the second part, the amount of bonds he, by the terms of such contract is to receive, shall be in- creased in proportion to increase of mortgage. 8th. And it is further agreed that the said contract be, and the same hereby is, so far modified as that the party of the second part shall not be compelled to deliver to the party of the first part any other bonds of the said Western North Carolina Railroad Company than the $219,000 provided to be transferred by him to the party of the second part, that is to say, he shall be compelled to transfer that amount, but not to purchase bonds beyond that amount, and instead, the party of the first part may purchase, compromise, or settle for all such bonds as shall not so be transferred by the party Probate. (SO) of the second part, and as they shall not receive under the said con- tract with the said Hiram Sibley, and the necessary means shall be furnished by him as permitted in the fourth article hereof. Subscribed the 23d day of June, 1873. Southern Railway Security Company, (by James Rodswell, President.) Attest : Charles Paul Mackie, Secretary. E. T. Wilson, C M. McGhee, R. T. Wilson, As party in contract with Hiram Sibley, hereby transferred. R. Y. McAden. State, City and County of Ne-aj York : — .SS. Be it remembered that, on the 27th day of" June, A. D. 1S73, before me Chas. Nettleton. a Commissioner of the State of North Carolina for the State of New York, residing in the said city of New York, personally appeared James Roosevelt, the President of the Southern Railway Security Company, to me personally known to be such, who being by me duly sworn did depose and say, that he resided in New York city, that he was the President of the said Com- pany, that he knows the corporate seal of said Company, that the seal affixed to the foregoing instrument is such corporate seal, that it was so affixed thereto by order of the Board of Directors of said Company, and that he signed his name thereto by the like order as the President of said Company ; and he fur- ther acknowledged the same as ais own free act and deed, as well as the free act and deed of the said The Southern Railway Security Company. In witness whereof I have hereunto set my hand and affixed my official seal this 27th day of June, A. D. 1873. [Seal.] Chas. Nettleton, Commmissioner for North Carolina in New York, 117 Broadway, N. Y. City. State, City and County of Ne-w York : — .S.S. Be it remembered that, on this 27th day of June, A. D. 1873, before me, Chas. Nettleton, a Commissioner of the State of Pennsylvania for the State of New York, residing in said city of New York, personally appeared James Roose- velt, the President of the Southern Railway Security Company, to me perso- nally known to be such, who being by me duly sworn, did depose and say that he resided in New York city, that he was the President of said Company ; that he knows the corporate seal of said Company, that the seal affixed to the fore- going instrument is such corporate seal, that it was so affixed thereto by order of the Board of Directors of said Company, and that he signed his name there- to by the like order as President of said Company ; and he further acknowl- edged the same as his own free act and deed as well as the free act and deed of the said the Southern Railway Security Company, and desired that the same might be received as such. In witness whereof I have hereunto set my hand and affixed my official seal this 27th day of June, A. D., 1873. [Seal.] Charles Nettleton, Commissioner for Pennsylvania in New York, 117 Broadway, N. Y. City. (Si) Stale, Vity and Coanty of New Tork :—SS. Be it remembered, that on this 27th day of June, A. D. 1873, Chas. Nettleton, Commissioner oi the State of Tennessee for the New York, residing ia said city of New York, personally appeared James Roosevelt, the President of the Southern Railway Security Company, to me personally known to be such, who being by me duly sworn, did depose and say that he resided in New York C'ty. that he was the President of the said Com- pany, that he knows the corporate seal of said Company, that the seal affixed to the foregoing instrument is such corporate seal, that it was so affixed thereto by order of the Board of Directors of said Company, and that he signed his name thereto by the like order as the Pres'dent of said Company. And he fur- ther acknowledged the same to be his own free act and deed, as well as the free act and deed of the said Company for the purposes therein contained. In witness whereof I have hereunto set my hand and affixed my official seal, this 27th day of June, A. D. 1S73. [Seal.] Charles Nettleton, Commissioner for Tennessee in New York, 117 Broadway, New York City. before me probate of State ot Agreement. These articles of agreement witness that ; Whereas, Richard T. Wilson, of the City, County and State of New York, and Charles M. McGhee, of Knoxville, Tennessee, have Article of Agreem't be- tween R. Y. heretofore purchased from Rufus Y. McAden, of ' Charlotte, North Me \ den and to the Western North Carolina, his title, interest and claim in and Carolina Railroad, and the Western Division of the Western North Carolina Railroad, and for the better understanding of that transac- tion reference is hereby made to the contract of purchase made and existing by and between the aforesaid parties. And whereas, Hiram Sibley, of the State of New York, is the holder of the first mortgage bonds of the Western North Carolina Railroad Co., say in amount, one million and fifty seven thousand dollars, wrjich carry the unpaid coupons. And, also, he is the hold- er of a certificate of the secretary of the Western North Carolina Railroad Company as to the ownership of eight thousand shares of the stock of the said Company, and whereas the said Hi- ram Sibley, has heretofore instituted suit in the United States Circuit Court of North Carolina, for the purpose of foreclosing the mortgage lien made on said property to secure the payment of the bonds held by the said Sibley, which judicial pro- ceedings are now pending ; And whereas, It is contemplated, after the foreclosure, sale and purchase of the Western North Carolina Railroad, to consolidate it with other roads, by which a continuous line will be had from Salis- bury, North Carolina, via Asheville, to Morristown, in the State of Tennessee, which, when completed, will, it is believed, become a val- Hiram ley. Sib- (82) liable feeder to the East Tennessee, Virginia and Georgia Railroad Co. And in consideration of the advantages thus to be derived, the said East Tennessee, Virginia and Georgia Railroad Company, a cor- poration created and existing by virtue of the laws of the States of Tennessee and Georgia, through its President and the aforesaid Hiram Sibley and Richard T. Wilson, severally agree with each other in manner following, to-wit : For purposes of convenience the said Hiram Sibley is herein de- signated as the party of the first part, and the said Richard T. Wil- son as party of the second part, and the said the East Tennessee, Virginia and Georgia Railroad Co. as the party of the third part. 1st. The party of the first part has this day sold to the party of the second part the aforesaid bonds on, and the certificate as to the ownership of, the eight thousand shares of stock in the Western North Carolina Railroad Co. for the sum of three hundred and sev- enty thousand dollars, on which a payment of one hundred thousand dodars has been made, and receipt of which is hereby acknowledged. 2nd. The party of the second part is to be subrogated if at any time he shall so elect, to the judicial position of the party of the first part in the suit now pending for the purpose of foreclosing the mortgage on the said Western North Carolina Railroad ; and the party of the second part is to conduct the legal proceedings with reasonable diligence, and is to pay the legal expenses, including the attorney fees of the party of the first part, as per his contract with Ward, Jones and Whitehead, the attorneys. 3rd. The party of the second part expressly undertakes, cove nants and agrees to, and with the party of the first part, that he will be present at the sale under foreclosure as aforesaid, and that at said sale he will become purchaser thereof, or in the alternative, should others compete at the sale, will bid for the premises such an amount as will realize to the party of the first part upon the securi- ties sold by him, and to which this agreement relates, a net sum equal to the aforesaid amount of two hundred and seventy thousand dollars, and immediately after the completion of said title in the party of the second part, and when possession is obtained by him of the said Western North Carolina Railroad franchises and proper- ty, then interest is to begin at the rate of three and one half per cent, per annum, upon said deferred payments of two hundred and seventy thousand dollars. 4th. After the title to the Western North Carolina Railroad is (S 3 ) procured by a foreclosure, and sale as aforesaid, it is contemplated to consolidate that road with others, and issue bonds, principal and interest payable in gold at the rate of twenty thousand dollars per mile if the rate of interest should be fixed at six per cent, per annum, or at the rate of eighteen thousand dollars per mile if the rate of interest shall be fixed at seven per cent, per annum, and secure the principal and interest of said bonds so issued by a first mortgage lien on the consolidated line of road. c;th. It is intended to sell the bonds to be issued as aforesaid, and applv as the same are sold, sufficient of their first proceeds to the payment and discharge of the deferred payment and interest thereon, which will be owing the party of the first part. And when the aforesaid Western North Carolina Railroad is sold and purchased as now contemplated by the party of the second part, the purchase shall be made with the understanding, and upon the condition that the entire property, franchises, and income shall be held in trust by the party of the second part, first, to secure the deferred payment owing to the party of the first part, and interest thereon at the rate previously stated, and secondly, after such pay- ment to secure the East Tennessee, Virginia & Georgia Railroad company for the loan of two hundred thousand dollars, made to the party of the second part for reasons stated herein as to one hundred thousand dollars, and for like reasons as stated in the con- tract made by the party of the second part, and Charles M. Mc- Ghee, and the said East Tennessee, Virginia & Georgia Railroad company, and the aforesaid Rufus Y. McAden in a contract pre- viously herein referred to. And it is further agreed that the party of the second part shall execute at the proper time such legal instrument as may be in his power to do, by reasons of the title which may at the time vest in him in order to fully carry out, and perfect this provision of this agreement, but it is not intended by this agreement to make the party of the second part individually liable for the deferred pay- ment owing to the party of the first part for balance of the purchase money on. account of the purchase of the aforesaid bonds, it being understood and agreed that the party of the first part is to look alone to the property to be purchased by the party of the second part, and held in trust as aforesaid as the means by which the pa\ - ment of his debt is secured, and this is also the understanding with (S 4 ) the parly of the third part representing the loan of two hundred thousand dollars previously referred to. 6th. In case the contemplated consolidation of roads hereinbe- fore mentioned, and the issue and sale of bonds are not carried out within two years from the date hereof, then and in that case the deferred payment of two hundred and seventy thousand dollars, and interest thereon, or any part of the same then remaining unpaid, shall become due and payable, also the two hundred thousand dol lars, borrowed from the East Tennessee, Virginia & Georgia Rail- , road company, with interest thereon at the rate of seven per cent, per, annum, shall also become due, and the property, franchises, &c, to be purchased and held in trust by the party of the second part, shall be sold upon reasonable notice to the party of the first part by advertising, and the proceeds applied so far as the same may suffice, or be necessary, to the discharge of the trustees as herein provided for. 7th. The securities of the Western North Carolina Railroad company sold by the party of the first part in amount and kind as previously stated are deposited in the hands of Ward, Jones and Whitehead where they are to remain, subject, however, to the or- der and control of R. T. Wilson, the party of the second part, so far as may become necessary for the purposes of carrying out the object and purposes of this agreement. Sth. In as much as the action of the party of the third part in this matter pertains only to the parties ol the second and third parts, and it is probably not binding upon the party of the third part until the same is approved by the Board of Directors, it is agreed by the party of the first part and second part, that the ap- proval or disapproval of the party of the third part, shall not affect the validity of the agreement as between the,m, but the same shall be binding on the parties of the first and second part when signed. 9th. It is hereby agreed that in case the party of the second part shall so elect, he shall have the privilege of substituting the Southern Railway Security company, a corporation existing, by virtue of the laws of the State of Pennsylvania, in his stead, for all purposes of the agreement as fully and to all intents, and purposes as if the said Southern Railway Security company had been the original signer of this agreement, and at any time during the pen- dency of the same the written assent of the said Southern Rail- way Security company to be thus substituted, and due notice given (3 5 ) thereof, by the party of the second part to the other parties to this agreement shall fully accomplish the substitution 'herein intended to be provided for, whereupon the party of the second part, shall be fully exonerated and discharged as a party to this agreement. ioth. If at any time during the pendency of this agreement the said Southern Railway Security company shall elect to give its obligation for the amount of the deferred payment which may then be owing to the party of .he first part, the party of the first part agrees to accept the same in lieu of the herein provided for on the aforesaid Western North Carolina Railroad, but this provision does not impair the obligation to pay whenever the bonds to be issued under this agreement shall be sold as proposed. nth. The party of the second part may nominate a receiver or commissioner under the judicial proceedings for a foreclosure, and is to have possession of, and operate said road if purchased by him so soon as possession is legally obtained. In witness whereof the parties affix their respective signatures, New York, November 7th, 1872. (Signed) Hiram Sibley, (Signed) R. T. Wilson, The East Tennessee, Virginia & Georgia Railroad Co., (Signed] by R.T.Wilson, President. Witness : (Signed) C. H. Basher. United States of America, State of JVem Tork ; — 5'6'. By this public instrument be it known to all whom the same doth or may in anywise concern that I, Henry C. Cooper, a Public Notary in and for the county of Kings, State of New York, by letters patent, under the great seal of the said State, duly commissioned and sworn, dwelling in ! thecity of Brooklyn. do hereby certify that the annexed and foregoing copy of a. 'contract has been compared by me with the original word by word, and letter by letter. And I further certify, that the said copy is a true and correct copy of the said contract. In testimony whereof I have subscribed my name, and caused my Notarial Seal of office to be hereunto affixed the twenty-seventh day of June, in the year of our Lord one thousand eight hundred and seventy-three. Henry C. Cooper, Notary Public. State of Ne-w Tork, county of Kings .- — SS. , I, George G. Herman, Clerk of the county of Kings, and Clerk of the Supreme Court of the State of New York, in and for said county, (said Court being a Court of record,) do hereby certify, that Henry C. Cooper, whose name is sub- scribed to the certificate of proof or acknowledgment of the annexed instru- ment, and thereon written, was at the time of taking such proof or acknowledg- Probate. (86) ment a Notary Public of the State of New York in and for the said countv of Kings, dwelling in said county, commissioned and sworn and duly authorized to the same. And further, that I am well acquainted with the hand-writing of such Notary, and verily believe the said certificate to be genuine. In testimony whereof I have hereunto set my hand and affixed the seal of said county and Court this 27th day of June, 1873. [Seal of Kings County.] George G. Herman, Clerk. Agreement made the 15th day of May, A. D., 1872, by and be- tween Rufus Y. McAden, of Charlotte, N. Carolina, of the one part, and Kich'd T. Wilson, of the City and State of New York, and Chas. M. McGhee, of Knoxville, Tenn., of the second part, and the East Tennessee, Virginia and Georgia Railroad Company, acting by and through its President, Rich'd T. Wilson, of the third part. Whereas, The railway heretofore constructed by che Western North Carolina Railroad Company, extending in two divisions from ■tw^ Mciden Salisbury on the line of the North Carolina Central Railroad to McGheef&cf Paint Rock, on the State line between the States of North Carolina and Tennessee, there connecting with the Cincinnati, Cumberland Gap and Charleston Railroad, the which extending from Paint Rock to Morristown, connecting at said named Paint Rock with the line of the East Tennessee, Virginia and Georgia Railroad Company, so that by means of said connecting lines a large interchange of busi ness exists and its increase ma_y be reasonably expected ; And whereas, It is the interest of the said several lines of Railroad that such consolidations may be effected and such financial arrange- ments made as may relieve from financial difficulties the line hereto- fore, of the Western North CaroHna Railroad Company, and may expedite and facilitate the transportation of traffic over said line to and from connecting railways ; And whereas, The said line heretofore of the Western North Car- olina Railroad Company has come to be vested by judicial sale in Rufus Y. McAden ; and the line known as the Cincinnati, Cumber- land Gap and Charleston Railroad is owned and controlled by Rich'd T. Wilson and Charles M. McGhee, parties to this agreement, wl o are also largely interested in the stock and business of the East Tennessee, Virginia & Georgia Railroad Company ; and the said parties, for the reasons before stated, have agreed to and with each other in the manner hereinafter set forth. Now, therefore, this agreement witnesseth : That, for and in consideration of the premises and of the benefits expected to result from the arrangements to which this argreement (8 7 ) relates, and also in further consideration of the sum of one dollar to each of the parties by the other, in hand paid, the receipt of which is . acknowledged, the parties to this agreement have mutually- agreed to and with each other : First. That he, the said R. Y. McAden, shall, by such good and suffi- cient assurances of title as counsel learned in the law may request and direct, convey, grant and assure unto Rich'd T. Wilson, and Charles M. McGhee, jointly and severally, and to the survivor of them, all and singular, the franchises, estate, real and personal, in eluding the line of Railway and its appurtenances heretofore of the Western North Carolina Railroad Company, extending from Salis- bury to Paint Rock, guaranteeing and assuring the title to said line of Railway, and the franchise late of said corporation, free of all liens, charge or incumbrance whatsoever, and of any impeachment of its title or estate, except in so far as certain outstanding first mortgage bonds of said Road, the which are alleged to be binding upon the same by one Sibley, or those claiming through him are concerned, but the which bonds and the mortgage given for their security are believed to have been divested, so far as any lien or charge upon the said line of Railway, or the franchises of said corporation are con- cerned, by a judicial sale by and through which the said McAden claims to be entitled of said line of Railway, and its franchises, and the said McAden also undertakes and agrees to hand over and deliver into the possession and ownership of the said Wilson and McGhee two hundred and nineteen of the said first mortgage bonds and sundry claims against, and liability of the said Western North Carolina Railroad Company, whereof he is possessed, and which constitute all of such claims and such liabilities which have come into his possession or control. But it is expressly understood and agreed, however, that certain claims of the Western North Carolina Railroad Company against G. W. Swepson, M. S. Littlefield, S. W. Hopkins & Co., and certain Florida Railroad Companies, now in , the possession of, or belonging to the said McAden, shall, together with the requisite remedies for their recovery be and remain the property of the said McAden, and inasmuch as doubts have been expressed with regard to the title of said McAden to that portion of the line of the West ern North Carolina Railroad Company known as its Western Divis- ion, extending from Asheville to Paint Rock ; the said McAden un (SS) dertakes and agrees, at his own cost and expense, but for the uses of this agreement, to acquire an additional title to the same at a fur- ther judicial sale, and to include in his aforesaid guarantee, the suf- fering, in law and equity, as well of the title so acquired as of that previously acquired by him at a former judicial sale, of the entire line of railway and its franchises. Second. It is further covenanted and agreed by hand between the parties that, as speedily as may be practicable, the said Western North Carolina Railroad Co. shall be reoi'ganized under the general laws of the State of North Carolina and of the State of Tennes see, and such further legislation, if any, as counsel learned in the law may deem requisite, and under such name and with such amount of capital stock and other corporate qualities as may be hereafter agreed upon, and that the said Company so reorganized shall con- solidate its corporate stock and franchises with those of the corpo- ration known as the Cincinnati, Cumberland Gap and Charleston Railroad Company, so that the whole line of Railway extending from Salisbury to Morristown may be owned and controlled by one cor- poration. The stock of said corporation shall be issued to said Wil- son and McGhee, who shall forthwith transfer one seventh thereof to said McAden. as provided in a subsequent article of this agree- ment. Third. In consideration of the premises, it is further covenanted by and between the parties, that bonds shall be issued, and a mort- gage created by the said new corporation, organized to hold and administer the franchises of said consolidated line of Raflway for such an amount as may be hereafter agreed upon, provided, howev- er, that such amount shall not exceed eighteen thousand dollars per mile of the length of line of the said consolidated Railway, if the same be made to bear seven per cent, per annum interest for twenty thousand dollars per mile, if such bonds be maue to bear six pel- cent, interest, the principal and interest of which bonds shall be made payable in gold. Fourth. And in consideration of the grant and transfer as afore- said, of the Western North Carolina Railroad, made by the said Mc- Aden, it is agreed that the said East Tennessee, Virginia & Georgia Railroad Company shall accept the drafts of six months of the said McAden, to be presently drawn to the aggregate amount of one hundred thousand dollars divided into such money as may be most (8 9 ) convenient for the purpose of procuring the discounting of the same. And furthermore, that upon the creation of the mortgage afore- said the said McAden shall be entitled to receive, in the option of the said Wilson and McGhee, or the survivor of them, either three hundred thousand dollars in cash, or the equivalent of that amount in said bonds of the new corporation at seventy five cents in the dollar, if such bonds be six per cent, boads, or at eighty cents in the dollar, if the same be seven per cent, bonds, and the payment of three hundred thousand dollars shall be made in bonds, then the said East Tennessee, Viginia and Georgia R lilroad Company agrees to accept the drafts of the said Mclden at six months, to an amount not exceeding one hundred thousand dollars, conveniently divided, receiving as collateral security for the same the aforesaid bonds is sued in payment of three hundred thousand dollars. And it is further understood and agreed that the said McAden is to receive and have one seventh part of the entire capital stock of the said reorganized and consolidated Company, the which one hun- dred thousand dollars of cash acceptances and three hundred thou- sand dollars paid in cash, or bonds as aforesaid, and one-seventh of the capital stock of the reorganized and consolidated Road is to con- stitute the entire consideration paid to the said McAden for the title to the said line of Railway of the said Western North Carolina Rail- road Company and its franchises, and the assurance of a good title in the same, subject only to the aforesaid qualification as to the aforesaid bonds, alleged to be due by said Road, and to be charged against its works by said Sibley, and those claiming under him. Fifth. The said one hundred thousand dollars of acceptances presently made by the said East Tennessee, Virginia and Georgia Railroad Company shall be repaid to it out of the proceeds of the sale of the bonds of the reorganized and consolidated Company. Sixth. The said Wilson and McGhee are to receive in payment for the line of Railway and its appurtenances, and the franchises of the Cincinnati, Cumberland Gap and Charleston Railroad Company, its cost price to them being about the sum of two hundred thou- sand dollars, out of the proceeds of the sale of the bonds of the re- organized and consolidated Company aforesaid. Seventh. It is further covenanted and agreed that all the bonds issued by the reorganized and consolidated Company, and secured by its first mortgage, shall be placed for the purpose of sale, in one pool, and the proceeds of sale divided between the said corporation (9°) and the said McAden, ratably to the amount of bonds he'd by them respectively. (Signed,) R. T. McAden, (Signed,) R. T. Wilson, (Signed,) C. M. McGhee, The East Tenn., Virginia & Georgia Railroad Co., (Signed,) By R. T. Wilson. Pres'r, R. Y. McAden. United States of America, State of New York : — S^S". By this public instrument be it known, to all to whom the same doth or mav in anywise concern, that I, Henry C. Cooper, a Public Notary in and for the county of Kings, State of New York, by letters patent under the great seal of Probate. the said State duly commissioned and sworn, dwelling in the city or' Brooklyn ; Do certify that the annexed and foregoing copy of a contract has bjen com- pared by me with the original, word by word and letter by letter. Andl further certify that the said copy is a true and correct copj- of the said contract. State of New York, Comity of Kings : — 55. I, George G. Herman, Clerk of the County of Kings, and CI rk of the Su- preme Court of the State ot New York, in and for said county, (said Court be- in^ a Court of record.) do hereby certify th;it Henry C. Cooper, whose name is subscribed to the certificate of proof or acknowledgment of the annexed in- strument and thereon written, was at the time of taking such proof or acknowl- edgment a Notary Public of the State of New York in and for the said coun- ty of Kings, dwelling in said county, commissioned and sworn and duly autho- rized to take the same ; and further that I am well acquainted with the hand- writing of such Notary, and verily believe the signature of said certificate is genuine. In testimony whereof I have hereunto set my hand and affixed the seal of said County and Court this 27th day of June, 1S73. [Seal.] George G. Herman, Clerk. In testimony whereof I have subscribed mv name and caused my Notarial seal of oiHce to be hereunto alhxed the twenty-seventh day of June in the year of our Lord one thousand eight hundred and seventy -three. [Seal.] Henry C. Cooper, Notary Public. Slate of North Carolina. Guilford County : In consideration of and in furtherance of a contract entered into of tins date, Assignment to between the last Tennessee, Tirginia and Georgia Railroad Company. R. Y. 1 McAden, Willi m A Smith, as agent and trustee, do hereby assign and* transfer all the right, title ad interest, property and claim resting in them and either of them, under the within contracf to Curtis H. Brogden, Governor of the State of North Carolina, Robert F. Ar,ri!deld and James L. Robinson, Commission- ers appointed by an act of the General Assembly of said State, ratified March 13th, 1S75, entitled an act in relation to the Western North Carolina Railroad. This April 17th, 1S75. For the Western North Carolina Railroad, bv W. A. Smith. Agent and Trustee. In presence of W. N. H. Smith. (90 These articles of agreement made and entered into the thirty first day of October, Anno-Domini, one thousand eight hundred and seventy-three, by and between the Southern Railway Security company, a corporation created and existing under the laws of the Agreera't be- State of Pennsylvania, as party of the first part, the North Carolina Railway See Railroad company, a corporation created and existing under the r°'co.,' R. t! laws of the State of North Carolina, as party of the second part, Wilsou - etal - the East Tennessee, Virginia & Georgia Railroad company, a cor- poration created and existing under the laws of the States of Geor- gia and Tennessee as party of the third part, R. Y. McAden, of Charlotte, North Carolina, as party of the fourth part, and W. A. Smith, of North Carolina, in the double capacity of agent and trustee ot the parties of the first, second, and third parts, as party of the fifth part. Witness, whereas the party of the first part, has heretofore pur- chased securities on the Western North Carolina Railroad com- pany, and the title and ownership to the aforesaid road, including both the Eastern and Western Divisions, to the extent and in the manner stated, and set forth in the following contracts, viz : first contract between Richard T. Wilson, C. M. McGhee, the East Tennessee, Virginia & Georgia Railroad, and R. Y. McAden, bearing date of fifteenth of May, Anno-Domini, one thousand eight hundred and seventy-two; secondly, contract between Richard T. Wilson, Hiram Sibley, and the East Tennessee, Virginia and Georgia Railroad company, bearing date November seventh, An- no-Domini, one thousand eight hundred and seventy-two; and thirdly, contract between the Southern Railway Security company, R. Y. McAden, the East Tennessee, Virginia & Georgia Railroad company, R. T. Wilson, and C. M. McGhee 'and R. T. Wilson, transferring the Sibley contract, bearing date June twenty-third, Anno-Domini, one thousand eight hundred and seventy-three, copies of all of said contracts are hereto attached, and referred to, and made a part of this agreement. The aforesaid parties res- pectively agree with each other in manner following, to-wit : Firet. The party of the second part has purchased all of the right, ' title, claim, and interest of and from all of the other parties to this agreement in the aforesaid Western North Carolina Railroad com- pany, including all the securities, judgments, debts of every nature, and kind whatsoever, that are owned by, through, or under the aforesaid contracts, or that are otherwise owned by any of the (93) parties to this agreement upon the terms and condition herein stated. Second. The party of the second part has paid to the party of the third part its two promissory notes amounting to thirty-eight thousand nine hundred and eighty-four, 27100 ($38,984.27) dollars due and payable on the First day of Januray, Anno-Domini, one thousand eight hundred and seventy-four, and seven amounting to one hundred and seventy-five thousand ($175,000) dollars, due and payable on the First day of July, Annc-Domini, one thousand eight hundred and seventy-tour, all bearing: interest at the rate cf seven per cent, per annum, and hereby agrees to pay the deferred payment to Hiram Sibley L.pon the terms and conditions stated in contract with Hiram Sibley and other parties previously referred to; and the party of the second part hereby agrees to assume, and pay all the expense , incident to the aforesaid contracts, that may have been or may hereafter be incurred by any of the parties to them. Third. It is hereby agreed that the party of the second part is to take full control and direction of all legal proceedings necessary to consummate the procurement of a clear title to Western North Carolina Railroad, and to prosecute the same with reasonable diligence and bring the road to sale as soon as practicable. Fourth. It is agreed that when the road is brought to sale, or when any title to it may otherwise be obtained, that if sold it shall be purchased by the party of the fifth part, as agent and trustee of the parties of the first, second, and third part.or if the title is other- wise acquired it shall be likewise held by the party of the fifth part, as agent and trustee; first, to secure the deferred payment to Hiram Sibley, as set forth in copy of contract hereto attached, and secondly to secure any part of the notes this day given by the party of the second part to the party of the third part which may then remain unpaid, and the party of the fifth part hereby accepts the agency and trust, and agrees to carry the purposes of the same in- to effect at the proper time, and also further agrees to execute pro- per legal liens on said Western North Carolina Railroad so tar as may be in his power to do; to make more complete the liens herein provided for, or intended to be provided for. Fifth. After the aforesaid amounts are paid and discharged or otherwise satisfactorily provided for, then all claims and demands of the parties of the first and third parts shall cease, and the party (93) of the second part shall become entitled to all the rights of both the first and third parties, in the premises. Sixth. The party of the second part, has this day executed to the party of the fourth part, its promissory notes, five payable on the first day of January, Anno Domini, one thousand eight hundred and seventy-four, amounting to fifty thousand ($50,000) dollars, five payable on the first of July, one thousand eight hundred and seventy-four, amounting to fifty thousand ($50,000) dollars, and also agrees to pav a further sum of two hundred thousand dollars, ($200,000,) in seven per cent, gold bonds to be issued by the party of the second part at ninety cents on the dollar with interest at the rate of seven per cent, per annum from the first day of May, Anno- Domini, one thousand eight hundred and seventy-three, on all the payments. Seventh. The bonds to be paid to the party of the fourth part, by the party of the second part within a reasonable time after the party of the second part acquires a clear title to the Western North Carolina Railroad, and when legal authority is obtained to con- solidate them with the North Carolina Railroad. Eighth. The true intent and meaning of this agreement is that the party of the second part shall have and hold all the interest in the aforesaid premises upon the terms and conditions herein stated which are or may be hereafter acquired under the aforesaid con- tracts, or otherwise by the party of the fourth part, and shall pay and discharge all costs and expenses incident thereto, and that neither the party of the first or third parts shall be responsible for the prosecution of the said suit, nor for the issue of any bonds, cr for an}- payments to be made to McAden the party of the fourth part; and he hereby accepts the substitution of the party of the second part, and discharges all the other parties from all and every liability of every kind and nature whatsoever. Ninth. The said Rufus Y. McAden, *party of the fourth part, joins in and assents to these articles of agreement, and now enters into the same covenants and agreements, with the party of the second part, which are contained in his covenants and agreements with R. T. Wilson, C. M. McGhee and the East Tennessee, Vir- ginia & Georgia Railroad company referred to in this agreement, and especially the one dated fifteenth day of May, one thousand eight hundred and seventy-two, relative to his titles, interest and claims in the Western North Carolina Railroad company from (94) Salisbury lo Paint Rock, and the said Rufus Y. McAden doth now farther covenant and agree with the party of the second part to transfer and assign to the party of the second part all judg- ments, debts and claims which he may have either in his own name or in the names of other persons against the Western North Ccrolina Railroad Company. Tenth. It is agreed by and between the parties of the second and third part that a contract shall be entered into, and placed on record, binding each to the other to interchange bus-mess upon a perfectly equitable pro rate basis, which contract shall be executed whenever the consolidation of the Western North Carolina Roads is made with the North Carolina Railroad Company, and shall continue in force for a period of not less than ninety-nine years. The spirit of the contract shall bind each to take the through business from the other at the same pro rate per mile that is charged by the Road from which it comes. The party of the second part agrees that it will endeavor to pro- cure the necessary legislation to authorize the consolidation of the North Carolina and the Western North Carolina Railroads, and tl-:at as soon as such legislation can be had, and the title of the Western North Carolina Railroad procured as aforesaid, the party of the sec- ond pare agrees to proceed in the work of completing the line of the Western North Carolina Railroad from Old Fort to Paint Rock, and in case suitable legislation cannot be obtained to authorize a consol idation as aforesaid, the party of the second part agrees to build or construct the aforesaid Road from Old Fort to Paint Rock, to be built within a reasonable time after the title to the Western North Carolina Road is obtained, and the party of the third part agrees to build from the present terminus of the Road known as the Morris- town branch, to Paint Rock, so as to meet the Western North Caro- lina Road there by the time it is completed to that point, and it is mutually understood and agreed by and between the parties of the second and third part, that the agreement on the part of each other to build or cause to be built, roads or part of roads, as aforesaid, together with the obligations to make a contract for an equitable interchange of business and traffic, without unreasonable delay, con- stituting a part of the consideration of this agreement. In witness whereof the parties to this agreement have hereunto affixed their respective signatures : (95) New Yoke, October 30th, Anno Domino, One Thousand Eight Hun- dred and Seventy-three. In presence of Southern Bailway Security Company, [seal,] By W. O. Hughart, President. For the North Carolina Railroad Company, By W. A. Smith, President. Official signatures of the President of the North Carolina Railroad Company, J. A. McCauley, Sec'y, N. C. R R. Co. The East Tennessee, Virginia and Georgia Railroad Company, By R. T. Wilson, President. R. Y. McAden, W. A. Smith, Agent and Trustee. Witness : J. A. McCauley. North Carolina, Guilford County : Agreement entered into this 17th day of April, 1875, by and between the East Tennessee, Virginia and Georgia R ailroad^Co,, party of the first part, Rufus Y McAdan, party of the second part, the North Carolina Railroad Company, party of the third part, and Wm. A. Smith, as agent and trustee, party of the fourth part : Whereas, Certain articles of agreement, bearing date October 31st, 1873, have been entered into, between the Southern Railway Security Company and the parties above named, wherein, on the terms and conditions therein mentioned, the said the North Carolina Railroad Company purchased all of the right, title, claim and inter est of, and from ail thy other parties k 'ta the aforesaid agreement,' 1 in the Western North Carolina Railroad Company, including both the Eastern and the Western Divisions thereof, and all the securi ties, stocks, and other prjperty and effects in said agreement and ks a- companying exhibits, described and intended to be assigned, as by reference thereto will appear ; And whereas, The said the North Carolina Railroad Company has made and delivered to the said the East Tennessee, Virginia and Georgia Ra lroad Company and s id Rufns Y. McAden, respectively, certain promissory notes as in said agreement specified and de scribe 1, and has paid upon said notes so held by said Rufus Y. Mc Aden the sum of twenty thousand dollars ; And whereas, The said the Western North Carolina Railroad Co. (96) has been restrained and disabled by an order for an injunction made by the Hon. H. L. Bond, Circuit Judge of the United States, from carrying into effect the said agreement, and accomplishing the pur- poses for which it was executed ; And wheeeas. The said the North Carolina Railroad Company and "William A. Smith, agent and trustee, as aforesaid, have been author- ized and directed by the other parties to this contract, now about to be entered into, to assign and convey all the rights, property and interest of every kind, whatsoever, vesting in them, and each one of them, under said agreement, to Curtis H. Brogden, Governor of the State of North Carolina, Robert F. Armfield and James L. Robin- son, commissioners appointed and acting under an act of the Gen- eral Assembly of said State, entitled, "an Act in relation to the Western North Carolina Railroad," ratified, March 13th, 1875 ; And whereas, The Board of Directors of the said the North Caro- lina Railroad" Company have by resolution authorized and directed the said William A. Smith, the president thereof, to make such assignment and to execute this contract, or its part and on its be- half. And thereupon, in consideration of the premises, the said the North Carolina Railroad Company and the said William A. Smith, agent and trustee, as aforesaid, do contract to assign and ' transfer to said commissioners all the interest, rights and property vesting in them and each of them, as aforesaid, under and by virtue of the agreement aforesaid. And the said the East Tennessee, Virginia and Georgia Railroad Company and said Rufus Y. McAden do contract, each for himself, to surrender the several promissory notes aforesaid, to the said North Carolina Railroad Company ."or cancellation, and to exhonor- ate the said North Carolina Railroad Company, and said William A. Smith, agent and trustee, as aforesaid, and release and discharge them from all further liability under said agreement and the provis- ions therein contained. And the said Rufus Y. McAden contracts to repay the money so paid to him as hereinbefore mentioned to the said the North Caroli- na Railroad Company, in bonds authorized and proposed to be is- sued under and virtue of the act of the General Assembly aforesaid. And in order to give full effect to this contract, Edward Mathews of the city of New York, who, as assignee of Hiram Sibley, also of New (97) York, has succeeded to the rights and interest of the latter, under said agreement of October 31st, 1873, assents to, and ratines this contract, and exho no rates and discharges the above named parties, and each of them, from all further liability to him and his assignor in the said agreement of Oct. 31st, 1873, aforesaid. In testimony whereof the parties hereunto subscribe their names the dates first aforesaid : The East Tenn., Virginia and Georgia "Railroad Co., By R. T. Wilson, President. R. Y. McAden, North Carolina Railroad Company, By W. A. Smith, President and Trustee. Edward Mathews. In presence of W. N. H. Smith. I)i the Circuit Court of the United States for the Western District of North Garoiiua, October Term, 1875. Henrv Clews, Hiram Sibley, and Richard Norris and Henry Latimer, partners trading as Richard Norris & Son, Robert A. Lancaster, Herbert T. Atkin- son, James C. Mebane, Proudfit, and the North Carolina Railroad Company, Against The Western North Carolina Railroad Company, (Eastern Division,) and oth- ers, Defendants. Trial Tecree. In this cause George Gregory and J. I. Scales, heretofore appointed Refer- ees to credit and settle and report upon the accounts of Wm. A. Smith. Re- ceiver, having filed their original incomplete report on the 7th of September last, and at this Term having filed a supplemental and full report showing the state of accounts of said Wm. A. Smith as such Receiver up to 30th of Sep- tember, 1875, and no exception being taken to said report of the said Referees, on consideration thereof it is ordered, adjudged and decreed by the Court that said reports be in all things confirmed, and that said Referees, besides two hundred dollars each allowed them heretofore and paid to them and deducted in the first part of said Reports, be allowed the further sum of fifty dollars each, to be paid to them out of the balance reported as in the hands of the Re- ceiver in the Supplemental Report. And the Commissioners, T. Ruffin and Thomas B. Keogh, appointed to cancel the bonds provided for in a former decree, and thereupon, with direc- tions to deliver a deed conveying the said Railroad and all its property and franchises unto the State of North Carolina, to her agents mentioned in the former decree, having now filed their report showing a production and a can- cellation of all of the said bonds, and a delivery of a deed to the State of North Carolina, and no exception being taken to that report, it is ordered, adjudged and decreed by tie Court, that the said last mentioned report be and the same is hereby in all things confirmed. And now this cause coming on to be heard on further directions, and being now heard on the papers formerly read ; the former decrees entered in the cause and on me said Reports of the Referees aforesaid, and the Reports of Thomas Ruffin and Thomas B. Keogh, on consideration thereof the Court doth declare as follows : 1st. That all of the Mortgage Bonds provided in a former deeree in the (98) cause have been produced to and cancelled by the Commissioners appointed for that purpose, T. Ruffin and Thos. B. Keogh. 2nd. That a deed to the State of North Carolina upon the cancellation of said bonds has been delivered to Curtis H. Brogden, Governor, and R. F. Arm- field, President of the Senate and James L. Robinson, Speaker of the House of Representatives, for the purpose, under an Act of the General Assembly ratified the 13th dav of March, 1S75. 3d. That Wm. A. Smith, Receiver, surrendered up the Railroad and all its propertv, and all management thereof", on the 1st day of October, 1S75, unto the agents appointed by the State to receive the same, and the Court doth find and declare, in accordance with the said last report of the Referees, that there was in the hands of the said Wm. A. Smith, Receiver, ($8,016.17.) eight thous- and and sieteen dollars and seventeen cents of currency, and six hundred and fortv-three dollars of the bills of the Bank of .\lecklenburg. being the net earn- ings' of the road since the 1st day of May, 1S75, and that said Wm. A. Smith paid over the same to the State of North Carolina. 4th. That there is in the hands of said William A. Smith, Receiver, at the time, the sum of ($1,1550.02,) fifteen hundred and fifty dollars and two cents, of the earnings of the Road, prior to the 1st of May, 1875, which is due to the par- ties, and in the proportions mentioned in an article of agreement referred to and described in a former decree in the cause, after first deducting therefrom the allowances of fifty dollars each to George Gregory and J. I. Scales, and also the sum of three" hundred dollars, balance of fees and allowances, due Jo.m W. Pavne, clerk of the court. And' now, on the foregoing declarations, it is adjudged by the Court that the cancellation of the bonds provided for in a former decree, and also the delivery ofadeed f o he Stateof North Carolina was proper, and hereby has the full sanc- tion and a iproval of this Co r , and that the said State henceforth do have and possess -the said Western North Carolina Railroad and all its property and franchises, as her own absolute property ; and it is further ordered, adjudged and decreed, bv the Court, that Wm. A. Smith, Receiver, pay out the said bal- ance of fifteen hundred and fifcy dollars and two cents, now in his hands, as fol- lows, to-wit : Fifly dollars each to George Gregory and J. I. Scales, and then pay to John W. Pavne three hundred dollars for balance of fees due him as clerk of the Court, and the residue ($1,150.02,) eleven hundred and fifty dollars and two cents, to the parties mentioned'in said article of agreement described above as referred to in the former decree, and thereupon the said William A. Smith is discharged from any and all liability for, or on account of his said Re- ceivership. Robt. P. Dick. U. S. Dist. Judge I, Jno. W. Pavne, Clerk of the Circuit Court of the United States, for the Western District of North Carolina, at Greensboro, in said District, certify thai the foregoing is a correct, true and complete transcript of the record in an ac- tion in the Court of Equitv, lately pending in said Circuit Court, wherein Hi ram Siblev and Henry Clews, et ah, Avere plaintiffs, and Western North Caroli na Railroad Company, Tod R. Caldwell, trustee, and others, were defendant? In testimonv whereof, I have hereunto set my hand and affixed the seal o said Court, at "office in Greensboro, this 14th day of Sept., 1877. [seal. Jno. W. Payne, Clerk. (99) This indenture made this the third day of August, 1S75, hetween B. S. Gaither, Thos. B. Keogh and Thos Ruffin, commissioners of the Circuit Court of the United States for the Western District of North Carolina, of the first part, and the State of North Carolina of the second part, witnesseth that whereas the said Gaither, ^^sione'rs™. Keogh and Ruffin, together with Marcus Erwin, were appointed the state. by the said Circuit Court, at April Term, 1S75, commissioners by a decree rendered in the case pending in said Court wherein Henry Clews, Hiram Sibley and others were plaintiffs, and the Western North Carolina Railroad, (Eastern Division,) and others were defendants, to sell the said Western North Carolina Railroad, (Eastern Division,) extending from the eastern terminus in the city of Salisbury, in the State of North Carolina, to its western term- inus, m the county of Buncombe, iu the said State, including all the ways, railways, road-beds, rights of way, depot ground and other land belonging to the same, all tracks, bridges, viaducts, culverts, fences, depot stations, houses, engine-houses, car houses, freight-houses, wood-houses, and every building or structure there- unto belonging, all machine shops and other shops whatsoever held and owned by the said railroad, and used in connection there- with, and in conducting the business thereof, also all locomotives, tenders, cars, and other rolling stock, all equipments, machinery, tools, implements, fuel and material ior constructing, operating, repairing, or regulating the said railroad,- or any part thereof, also all an 1 every its equipments and appurtenances whatsoever, also all and everv its corporate rights and franchises, and all and every right, estate, title, interest, property, claim and demand whatso- ever appertaining to or in any wise belonging to said railroad, and whereas the said commissioners did duly and according to the directions of said decree, advertise the time and place of sale, and did on the 22nd day of June, 1S75, expose all the above property, estate, effects, rights, claims and demands, to sale at the Court House door in the city of Salisbury, to the highest bidder, at pub- lic auction, at which time and place the said State of North Car- olina became the purchaser as the last and highest bidder, at the price of $825,000.00, and whereas the said commissioners made one report of their action in the premises, to said Court, which on the 2nd day of August, 1875, rendered a decree in said cause, ap- proving and confirming in all respects, said report and directing the said Gaither, Keogh and Ruffin, whenever the said State of (ioo) North Carolina shall have paid said purchase money to make and execute a deed to the said State for all. and every the above named property, estate, effects, rights, claims, franchises, interests and demands; and whereas the State of North Carolina has paid to the said commissioners in the manner prescribed in the last mentioned decree the said purchase money, and every part thereof, now there- fore this indenture witnesseth that for and in consideration of the premises, and in pursuance of the decree of said Court, the said Gaither, Keogh and Ruffin, as commissioners of said Court, have given, granted, bargained and sold, and do hereby give, grant, bargain and sell unto the said State of North Carolina the said Western North Carolina Railroad, extending from its said Eastern to its said Western terminus, together with all and singular its appurtenances, rights, franchises, ways, houses, depots, interests, tools, machinery, impliments, claims, demands, and all, and every thing thereunto belonging or in any wise appertaining — to have and to hold the same to the said State of North Carolina, and her assigns forever in fee simple, in testimony whereof the said Gaith- er, Keogh and Ruffin, as commissioners of said, have hereunto set their hands and seals, this the day and date, first above written. Witness : (Signed) F. C. Clark. (Signed) B. S. Gaither, [Skal] (Signed) Thos. B. Keogh, [Seal] (Signed) Thos. Ruffin. [Seal] $10,000.00. Received of A S. Merrimon for amount of bid for Western North Carolina Railroad, the sum of $10,000.00. being the cash payment required to be paid by him as purchaser of the Wes- tern North Carolina Railroad, (Eastern Division,) at the sale of the same had by us this day at the Court House door in Salisbury, N. C, under a decree of the United States Circuit Court, in the case of Henry Clews, and others against the Western North Car- olina Railroad, and others, June 22nd, 1S75. (Signed) B. S. Gaither, (Signed) Thos. B. Keogh, (Signed) Thos. Ruffin, (Signed) Marcus Erwin, Commissioners. ENDORSEMENT ON BILL OF SALE. For value I transfer and assign the within mentioned bid to (IOI) Hons. C. H. Brogden, R. F. Armfield and Jas. L. Robinson, com- missioners, &c, to purchase said within named road, &c. June 22nd, 1875. (Signed) A. S. Merrimon. DEED OF TRUST BY THE STATE TO D. A. JENKINS, 18TH OCTOBER, 1875. This indenture, made this eighteenth day of October, eighteen I hundred and seventy-five, between the State of North Carolina, act- ing by her commissioners, Curtis H. Brogden, Governor of the said State, and Robert F. Armfield and James L. Robinson, of the first part, and David A. Jenkins, trustee, of the county of Gaston, and State of North Carolina, party of the second part, witnesseth : Whereas, On the thirteenth day of March, eighteen hundred and seventy-five the General Assembly of the said State of North Caro- lina did pass and ratify the following act, to-wit : An Act in relation to the Western North Carolina Railroad : Section I. The General Assembly of North Carolina do enact, That the Governor ot the State of North Carolina, and Robert F. Armfield and James Act of 13( .v L. Robinson, are hereby appointed commissioners, who shall purchase the March, 1875, Western North Carolina Railroad and all the property appertaining thereto, at a sale thereof, to be made under a decree of the Circuit Court of the United States, at Greensboro, in the Western District of North Carolina, and any claims against said Western North Carolina Railroad Company, which may be necessary to secure to the State of North Carolina a perfect and indefeasible title to the said Western North Carolina Railroad and all its property and franchises, if they can purchase the same for a sum not exceeding eight hun- dred and fifty thousand dollars, and to pay for it the said Governor, Armfield and Robinson, commissioners, are hereby freely authorized and instructed to issue bonds in the name of the Western North Carolina Railroad Company, of the denomination of one thousand dollars, bearing interest at the rate of sev- en per centum per annum, payable semirannually, and due at fifteen years from date, signed by the chairman and countersigned by the secretary of said com- mission, and sealed with the seal of the Company, and such bonds shall be numbered consecutively, and in the usual form of mortgage bonds, and the cou- pons, after maturity, shall be receivable in payment of any taxes or other dues, to the State, provided said bonds shall be receivable at par in payment for the said Railroad property and franchises. And provided, further, that if said commissioners shall, upon examination into the affairs of the said Western ( I02) North Carolina Railroad Company be of opinion that the sum which they may be required to pay for the same is too great, or that claims which they are re- quired to pay are fraudulent, and ought not to be paid, then in their discretion they may decline said purchase and report the matter to the next session of the General Assembly. Sec. II. That to secure the payment of the bonds and interest as the same may come due, the commissioners aforesaid shall have the right and power to execute and deliver mortgage deeds with power of sale, to such trustee as may be selected or agreed on, the same to be signed by the chairman and one or both of the other commissioners, conveying such Railroad property and fran- chises, including road bed, superstructure, equipment, and all its real and per- sonal estate, and said deed or deeds, when duly executed, mav be recorded in the register's office in Rowan County, and its registration in that county shall be deemed an effectual and sufficient registration for all purposes, and shall give it priority over all claims against said railway property, and it shall not be necessary to register the same in .any other county, any law to the contrary notwithstanding ; Provided, That no sale under the mortgage or mortgages herein provided for, shall be made by virtue of any decree of foreclosure with- out first having given six months notice thereof by public advertisement in six newspapers of the largest circulation in the State. Seo. III. That if the Governor, and said A.r afield and Robinson shall pur- chase said road, it shall be the duty of the Governor, by and with the advics and consent of the Senate, to appoint three commissioners who shall manage said road and its affairs daring the pleasure of the General Assembly, and to build and complete the same to its termini, at Paint Rock, and the Georgia or Tennessee line, near Ducktowu, according to the charter of said Western North Carolina Railroad company, and the acts amendatory thereof. They shall have the power to appoint necessary officers to operate and manage said road, and keep the same in repair. They shall require true and accurate accounts to be kept of all the earnings, income and expenses of said road, and make semi-an- nual reports to the Governor of such accounts, and of their actings and doings, and they shall semi-annually pay into the treasury except as may be hereafter provided all the net earnings and income of said road, and the treasurer shall keep an accurate account of all sums of money so paid in and note the same in his report to be submitted to the General Assembly. The said commissioners before entering upon their duties herein provided for, shall execute a bond pay- able to the State of North Carolina, (which shall be approved by the Governor,) in such sum as may be necessary to secure the State, but in no case shall said bond be less than double the amount of the net earnings for the preceding year. Provided that no person shall be appointed commissioner who has been connec- ted with any fraudulent transaction in connection with any of the railroads' or other public works uf this State. Seo. IV. That the public treasurer shall on demand after maturity pay out of the moneys received from said railroads the interest upon the bonds authoriz- ed by this act, and if at any time there shall not be sufficient funds on hands to fully discharge such interest, then he shall pay such deficit out of the general ( i°3 ) funds, keeping an accurate account of the advances so made, which shall be a lien upon the railroad, and all its property, second only to the mortgage herein- before provided for. Seo. V. That upon a reorganization of the company under this act, the State of North Carolina shall be assigned three-fourths of the stock, and the private stockholders one-fourth of the stock under such regulations for apportionment of the private stock as the commissioners may prescribe. That after such or- ganization the number of commissioners shall be increased to tour, one of whom shall be elected by the private stockholders in such manner as the commissioners hereinbefore provided for, shall prescribe. Provided that the State of North Carolina shall in all meetings of the stockholders have a voice equal to the am- ount of the stock assigned to the State by the provisions of this Act. Seo. VI. That the commissioners provided for in this act, shall have such convicts as are not necessary for completing the Penitentiary for laborers upon the unfinished portion of the Western North Carolina Railroad, as they may require, and may use such portion of the net earnings of the road in its construction as they may deem proper. And provided further, that one half of the net earn- ngs of said road shall first be applied to the payment of the coupons upon the bonds, and that said net earnings shall be deposited in the State treasury for that purpose. Provided, that they shall have no power to create any lien, or other debt upon said railroad, or against the State without express authority from the General Assembly. Seo. VII. That no change of location, or operation of said railroad within Catawba county, shall be made to impair existing rights of the town of New- ton, and it shall be lawful for an}' criminal not guilty of a capital offence to be sentenced to labor on said railroad. Sec. VIII. That this act be in force from and after its ratification. Ratified the 13th day of March, A. D., 1875. And whereas the said commissioners, Curtis H. Brogden, Governor of the State of North Carolina, Robert F. Armfield and James L. Robinson, in execution of their duties under the above recited act, did on the seventeenth day of April, 1S75, purchase from the parties holding the same all claims against the Western North Carolina Railroad company, which it was necessary for them to purchase, in order to secure to the said State of North Carolina a, perfect and undefeasible title to the said the Western North Carolina Railroad, and all its property and franchises, said claims being all the mortgage bonds, and debts of the said the Western North Carol. na Railroad company, upon which was founded a decree of foreclosure and sale of the said the Western North Carolina Railroad, in the Circuit Court of the United States for the Western District of North Carolina, in the cause entitled Hiram Sibley, Henry Clews, and others, against the Western (io 4 ) North Carolina Railroad company, Tod R. Caldwell and others, thereby acquiring entire control of the said decree of foreclosure, and sale, and the power to buy the said road, at the sale thereof, under the said decree, and pay the entire purchase money therefor, with the claims so purchased on the said seventeenth day of April, 1875. And whereas the said commissioners, Curtis H. Brogden, Governor of the State of North Carolina, and Robert F. Armfield and James L. Robinson, upon their said purchase of the said claims so made as aforesaid on the seventeenth day of April, 187=}, in pur- suance of the powers upon them conferred in, under, and by the above recited Act of the General Assembly of the State of North Carolina, did agree to execute, and deliver, and have since execu- ted, and delivered to the holders of the said claims against the said the Western North Carolina Railroad company, so purchased as aforesaid on the seventeenth day of April, 187:;, eight hundred and fiftv bonds, in the name of the said the Western North Caro- lina Railroad company, of the denomination of one thousand dol- lars, each numbered consecutively, from one (1) to eight hundred and fifty (850), bearing interest at the rate of seven per centum, per annum, payable semi-annually on the first day of May and No- . vember in each year, bearing date, the first day of May, eighteen hundred and seventy-five, due and payable fifteen years after and from the date thereof, signed by the Chairman, and countersigned by the Secretary of the said commissioners, and sealed with the coi-porate seal of the said the Western North Carolina Railroad Company, which bonds are in the form following, that is to say : State of Nobth Caeolina, $1,000. United States of Ameeica. $1,000. No. No. Mort^'e bond. Western North Carolina Eailroad Company, First Mortgage Bond. Coupons receivable by the State of North Carolina in payment for taxes and State dues. It is hereby acknowledged and declared by the Western North Carolina Rail- road company, and by the State commissioners hereinafter named that the said the Western North Carolina Railroad company, as re-organized or to be re-or- ganized pursuant to the Act of the General Assembly of North Carolina, entitled an Act in relation to the Western North Carolina Railroad, ratified March 13th, 1875, is indebted to the bearer hereof in the sum of one thousand dollars for part of the purchase money of the Western North Carolina Railroad, and all the pro- perty appertaining thereto, and of the claims against said company necessary to secure to the State of North Carolina a perfect and Indefeasible title to the said railroad, and all its property and franchises upon the purchase of the same by the Governor of the State of North Carolina, and Robert F. Arnifield and James L. Robinson, as commissioners, under and in accordance with said Act of the General Assembly, this bond having been received at par in payment for such railroad, property and franchises, upon such purchase. And in pursuance of said Act the Western North Carolina Railroad company hereby promises to pay to the bearer hereof said sum of one thousand dollars on the first day of May, eighteen hundred and ninety, and meanwhile to pay the interest thereon from the date hereof semi-annually on the 1st day of May and November in each year at the rate of seven per cent, per annum to the bearer of the coupons thereof, bearing the engraved signature of the Governor and Chairman hereto annexed upon presentation and surrender of such coupons, such principal and interest to be paid at the Treasurer's office of the State of North Carolina, at Raleigh, North Carolina, and it is hereby declared in pur- suance of said Act that such interest coupons after maturity shall be receivable in payment of any taxes or other dues to the State of North Carolina. The payment of this bond and interest, with other similar ones, to an aggre- gate amount, not exceeding eight hundred and fifty thousand dollars of princi- pal, is secured in accordance with said ac* of the General. Assembly, by mort- gage deed, with power of sale to David A. Jenkins, as trustee, conveying such Railroad, property and franchises, including road bed, superstructure and equipments, and all the real and personal estate of said Railroad Company, duly executed and recorded in the register's office in Rowan county, agreeably to said act. In witness whereof, in pursuance of said act of the General Assembly, the corporate seal of the said the Western North Carolina Railroad Company is hereunto affixed, and this bond is signed by the Governor of the State of North Carolina, as chairman, and countersigned by the secretary of the commission appointed by the said act of the General Assembly, the first day of May, 1875. [Corporate Seal of The W. N. C. R. R. Co.] C. H. Brogden, Governor of North Carolina and Chairman of Commission. R. F. Armfield, Secretary of Commission. And the coupons attached to the said bonds are of the form fol • lowing, that is to say : On the 1st day of 18 the Western North Carolina Railroad Company, reorganized under act of March 13th, 1875, w ^l pay the bearer at the Treasury of the State of North Carolina thirty-five dollars, being for semi- annual interest on bond No. This coupon, after maturity, is receivable at par in payment of any taxes or other dues to the State of North Carolina. C. H. Brogden, Governor and Chairman. And the trustees' certificate endorsed on said bonds is in the form following, that is to say : I certify that the within is one of the bonds secured by the within mentioned (io6) mortgage to me as trustee, executed and recorded as therein mentioned. D. A. Jenkins, Trustee. And whereas, In farther execution of their duties, under the said act, the said commissioners did, on the twenty- second day of July, 1875, at the town of Salisbury, in the- said State of North Caroline, purchase the said the Western North Carolina Railroad, and all the property appertaining thereto, at a sale therof, made under said de- cree of the Circuit Court of the United States, for the Wesern Dis- trict of North Carolina ; And whereas, Said sale and said purchase of the said the Western North Carolina Railroad and nil its property an 1 fr tnchises were duly reported to the said the Circuit Court of the United States, at Greensboro, North Carolina, by the commissioners appointed by the said Court to make said sale ; And whereas, Said sale and purchase were in all things confirmed by the said Court, and by an order of the said Cmrt the said com- missioners, Curtis H. Brogden, Governor of the State of North Car- o ina, Robert F. Armfield and James L. Robinson, were permitted and allowed to pay, and under said order did actually pay, the whole of the purchase money for said Railroad, with the claims so pur- chased by them on the said seventeenth day of April, 1875 ; And whereas, Burgess S. Gaither, Thomas B. Keogh and Thomas Ruffin, commissioners of the sail Court, were ordered by the said Court to execute an 1 deliver to the said State of North Carolina, a deed conveying to the said State, in fee simple, the said Western North Carolina Railroad and all its property and franchises ; And whereas, The said Burgess S. Gaither, Thomas B. Keogh Deed to state. an d Thomas Rutfin, in execution of the said last mentioned order of the said Court did, on the third day of August, eighteen hundred and seventy-five, execute and deliver to the said State of North Car- olina, through her said commissioners, Brogden, Armfield and Rob ins >n, a deed conveying to the said State of North Carolina, the said Western North Carolina Railroal, and all its property and fran- chises, in fee simple, by virtue of which deed the siid State became, and now is the owner in fee of the sad the Western North Carolina Railroad and all its property and franchises. Now, therefore, this indenture witnesseth, that in consideration of the premises and for the purpose of securing the payment of the sums of money mentioned and provided in the bonds above described (io7) and issued, as aforesaid, by the said commissioners, Brogden, Arm field and Robinson, and the interest thereon, according to the true intent and meaning thereof, and in consideration of the sum of ten dollars to the party of the first part, in hand paid by the party of qhe second part, the receipt whereof is hereby acknowledged, and in exe ution of the powers and duties conferred and imposed by the above mentioned act of the General Assembly of the State of North Carolina, the party of the first part acting by and through her aforesaid commissioners, Brogden, Armfield and Robinson hath granted, bargained, sold, aliened, transferred and conveyed, and by these presents doth grant, bargain, sell, alien, transfer and convey to the said party of the second part, and his successors and succes sor, in the trust, and to the assignees of him. the said party of the second part, and to the assigns of his successor or successors, to him and them in trust, all and singular, the said Railroad, of the party of the first part, known and designated as the Western North Carolina Railroad, including its Eastern and Western Divisions, ex ° Propertv con- tending from its Eastern terminus, in the town of Salisbury, North veyed to state, _. ,.° . , . , ,»,.„.. both Divis'ns. Carolina, to a point at or near the town of Asheville, in the county of Buncombe, in the said State, extending thence to Paint Rock, on the line between the Scates of North Carolina and Tennessee, also another line of said Railroad extending from said point at or near the town of Asheville, in the county of Buncombe, aforesaid, to Ducktown, in the county of Cherokee, in said State of North Caroli- na, being (all the said lines together.) about three hun- dred miles in length, including all the Railways, ways, rights of way, depot grounds, and all other lands, all tracts, bridges, viaducts, culverts, fences, and other structures, all depot station houses, engine houses, car houses, freight houses, wood houses and other buildings, and all machine shops and other shops, which are now held or which may hereafter be acquired for use in con- nection with the above described railroad, including also all loco- motives, tenders, cars and other rolling stock or equipment and all machinery, tools, implements, fuel and material for constructing, operating, repairing, replacing or extending the said railroad or any part thereof, and any and all its equipments or appurtenances whether now held or hereafter to be acquired, and also all the im- provements and additions made or to be made to any and all of the said properties, estates, railroads, railways and their appurtenances ( i<>8 ) by the said party of the first part or others, also all property, right; title and interest, which the party of the first part hath heretofore acquired or may hereafter acquire in and to any and all of the property above described together with all corporate franchises, already acquired, and which may be hereafter acquired, which are necessary and proper to enable the party of the second part and his successors in the trust, and his and their assigns to have, hold, possess, use, enjoy, repair, build, and operate said line or lines of railway, and every part thereof, together with all and singular the tenements, hereditaments, appurtenances, franchises, and rights thereunto, belonging or in anywise appertaining with the tolls, incomes, rents, and profits thereof — to have and to hold said property above described unto the said party of the second and to his successor or successors, and to the assigns of him the said party of the second part, and to the assigns of his successor or successors in the trust to the onlv proper use, benefit and behoof of the said party of the second part, and his successor or successors in the trust, and to , his, and to their as igns. In trust nevertheless, to have and to hold the same upon the uses and conditions, and for the purposes hereinbefore mentioned, and ,'r hereinafter expressed as follows, that is to say : The State to ARTICLE FIRST. Until default be made in the payment of the principal have posses- . ,',-.,"..'--.-■, ■, > on and con- or interest of the bonds herein intended to be secured or some or any of them, lekure. f ° r " or unt *' default shall be made in respect to some tilings in these presents required to be done by the said party of the first part — said party of the first part shall be permitted to possess, manage, control, and enjo3 r the said above described rail- road, and all the property hereinbefore, and hereby conveyed, and to take and use the is?ues, yields, income and profits thereof, in the same manner as if this deed had not been made. ARTICLE SECOND. In case default shall be made in the payment of any half year's interest on any of the aforesaid bonds herein secured at the time, and "In the manner in the said coupons issued with said bonds, required, (the said coupons having been first presented for payment at the office of the Treasurer of the State of North Carolina, in the city of Raleigh, in the said State of North Carolina, and the payment of the interest due having been there specifically demanded), and in case such default shall continue for the period of three months after such demand, then and thereupon the principal of all the bonds hereby secured shall become immediately due aud payable of anything in the said bond contained to the contrary notwithstanding. ARTICLE THIRD, It is hereby further agreed that in case of any default as mentioned in the last above article in the payment of any interest due on ( io 9 ) anv of the above mentioned bonds for three months after payment of the same shall have been demanded at the office of the Treasurer of the State, in the city of Raleigh, North Carolina, and in case of the default in the payment Of the prin- cipal of any of the said bonds after the same shall become due and payable either by lapse of time or failure to pay interest as aforesaid, and for three months after the same being so due and payable shall have been demanded at the said office of the said Treasurer of the State of North Carolina, at the city of Raleigh, in said State, it shall then, and in either event, be the duty of the said party of the second part, and any of his successors in the trust, and he and they are hereby required, being thereunto requested by the holder or owner of any of the said bonds- or coupons so due and unpaid, after demand, as afore- said, to enter upon. and take possession of the said Railroad and all of its appur- tenances, and all the property and effects herein conveyed, and he or they shall immediately advertise a sale of, said Railroad, and all its property and franchises and all the property herein conveyed, in six newspapers of the largest circula- tion in the State of North Carolina, which advertisement, he or they shall con- tinue for six months, and at the end of the said six months he or they shall sell the said Railroad and all its property and franchises, and all the property here- in convej^ed, at public auction to the highest bidder, for cash, at the town of Salisbur}', in the State of North Carolina, and the said party of the second part or his successor or successors, after he or they shall have sold said Railroad and appurtenances, are hereby authorized and empowered to execute to the purchaser or purchasers thereof, good and sufficient deed or deeds of convey- ance of the same, granting and conveying to the said purchaser or purchasers all such entire estate, right, title, property, interest and franchises, and to the same extent as the said party of the first part had therein, at the date of such sale, and also good and sufficient assignment of all personal property, rights and franchises of and pertaining to said Railroad, and out of the money arising from said sale it shall be the duty of the party of the second part, and his suc- cessor or successors, after first retaining therefrom the cost of executing this trust, and all unreimbursed sums of money which he or his successor or succes- sors may have been obliged to pay, by reason of taking possession of and operating the said premise, and a reasonable allowance for his or their own services, and for legal professional advice in the premises, then to pay, in so far as such proceeds, including any moneys which may have arisen or accrued from running and operating said Road or managing the property herein conveyed, and which may have come into the hands of the said party df'the second part or his successor or successors, may suffice therefor, and i < equal pro rata proportion in case of deficiency the princi- pal and interest then due, which shall then remain unpaid on the bonds afore- said outstanding and hereby secured as aforesaid for the benefit of and to be paid to the holders thereof with pro rata equality, and then further to restore the residue of said proceeds if any there shall be to the said party of the first part ; and it is hereby expressly agreed that the said bonds herein and hereby •secured shall be rateably receivable, if it be so desired by the holders thereof, in -payment of the purchase money arising upon and from said sale to the extent (no) of the amount of the net proceeds <>f said sale properly applicable to the pay ment of said bond or bonds respectively, and the said sale when fully con gum* mated shall be a perpetual bar at law and in equity to and against the said par- ty of the first part and all persons claiming under or through said party of the first part. ARTICLE FOURTH. The party of the first part shall and will from time to time, and as often as thereto requested by the party of the second part and his successor or successors in the trust, and whenever the same shall be proper or necessary make and deliver to the said party of the second part and his suc- cessor or successors such deeds and conveyances and further assurances in law as may be requisite for the better carrying out the trusts herein expressed, and for the more effectual conveyance to the said party of the second part and his successor or successors a better and more perfect title to any and all the proper- ty herein and hereby conveyed or attempted or intended to be conveyed. Deed to|be void ARTICLE FIFTH. If the said party of the first part shall well and truly tions are°per- P a y or cause to De P a -d the principal of said bonds and eacb and all of them, formed. an( j a n interest thereon, as and when the same shall become due and payable according to the tenor of said bonds and the coupons issued therewith, and shall perform and keep all and singular the several things herein required to be per- formed and kept according to the true intent and meaning of these, presents then and in that case all the estate, right, title and interest of thy said party of the second part and his successor and successors in the trust hereby created and in and to ad and singular the property herein a id hereby conveyed shall cease, determine and become void, otherwise the same shall remain in full force and effect. ARTICLE SIXTH. In case of a vacancy in the office of trustee arising or existing from death, disability, refusing to act, or from any other cause, or in case the trustee, for the time being, shall refuse or neglect to carry out the pro- visions of this trust or any of them, it shall be the duty of the Governor, of the State of North Carolina for the time being, he being thereunto requested in wri- ting by the holder of any bond or coupon herein or hereby secured, to appoint a new trustee, removing the incumbent, if there be one, refusing or neglecting to act, or incompetent to act,. and any such subsequently appointed trustee shall have all the rights and powers and perform all the duties of the party herein named as the party of the second part, and shall hold all the property herein and hereby conveyed for the purposes specified in this deed, and shall have all rights of sale and conveyance in as full and ample a manner as if he were a par- ty to this deed in the room and stead of the party herein named as the party of * the second part. In witness whereof we, the said Curtis H. Brogden, Governor of the State of North Carolina, and chairman of said commission, and Robert F. Armfield and James L. Robinson, Commissioners acting for and in behalf of the said State of North Carolina, and under and by the authority of the above recited act of the General Assembly of the State of North Carolina have hereunto set our hands and seals the day and year first above written, and have caused the corporate (Ill) seal of the said the Western North Carolina Rail Road Company to be hereunto affixed. Signed, sealed and delivered in the presence of C. H. Beogden, [Seal.] Governor and Chairman. [L. S.] R- F. Akmfield, [Seal.] Commissioner. North Carolina, Wake County— Probate Court. The execution of the foregoing mortgage was this day duly acknowledged be- fore me, J. N. Bunting, Probate Judge, with the seal of the Western North Car- olina Railroad Company, by C. H. Brogden, Governor and Chairman, for the purpose therein set forth. Witness my hand and the seal of the Court, at office in the city of Raleigh, October 18th, 1875. [L. S.] J- N. Bunting, Probate Judge. North Carolina, Iredell County — Probate Court. The execution of the foregoing mortgage was this day duly acknowledged be- fore me, J. B. Connelly, Judge of Probate, by R. F. Armfield, one of the Com- missionesr, whose name appears thereto for the purposes therein expressed. Witness my hand and the seal of the Court, at office in Statesville, October 26th, 1875. [L. S.] J. B Connelly, Probate Judge. State of North Carolina, County of Gaston : — 6"5. I, David A. Jenkins, the Trustee named in the foregoing deed of trust and ' mortgage, do hereby signify my acceptance of the said office of Trustee, with all the powers, and duties, and for the purposes of the said foregoing deed of trust and mortgage as therein expressed and contained. In witness whereof I have hereunto set my hand and seal this twenty-seventh day of October, eighteen hundred and seventy -five, in presence of S. Thompson. 'D. A. Jenkins. [L. S.] State of North Carolina, Mecklenburg- Countv. Personally appeared before, J. R. Erwin, Clerk of the Court and Probate Judge, in and for the county and State aforesaid, David A. Jenkins and ac- knowledged his signature to the foregoing mortgage deed for the purposes set forth therein. In testimony whereof I hereunto set my hand and official seal at office in Charlott t as October 27th, 1875. [L. S.] J. R. Eewin, Clerk Superior Court and Probate Judge. State of North Carolina, Rowan county : I, John M. Horah Judge of Probate for said county, do adjudge that the fore- (112) going deed in trust has been duly acknowledgd. Therefore, let the same, with the annexed certificate be registered, October 28th, 1875. J. M. Hoeah, Probate Judge. Came to hand the 28th day of October, A. D., 1875, at 10 A. M., and regis- tered. Horatio N. Woodson, Register of Deeds. State of Noeth Carolina, Rowan County. I, Horatio N. Woodson, Register of Deeds in and for the coumy aforesaid, do hereby cartify that the foregoing contains a true copy of a mortgage made by the State Commissioners, C. H. Brogden, Governor, R. F. Armfield and James L. Robinson, to David A Jenkins, Trustee, said mortgage registered in Book No.- 51 of the Register of Deeds, office for Rowan county, page 1, &c. In witness whereof, I have hereunto set my hand and private seal, having no seal of office, this April 28th 1881. Hobatio N. Woodson, [Seal] Register of Deeds. State of Noeth Caeolina, Rowan County : I, John M. Horah, Clerk of the Superior Court, of Rowan County, do hereby certify that Horatio N. Woodson is Register of Deeds, in and for said county, and that his name to the foregoing certificate is in his proper hand writing. Witness my hand and the seal of said Court, this the 29th day of April, A. D., 1881. J- M. Hoeah, Clerk. (»3) ("4) l**s) RECORD OF THE HIRAM KELLY SUIT. State of North Carolina,) Fifth Monday after the 4th Mon- ' McDowell County. > day in June, i860, being the 30th ) day of July in said year. Be it known that a Court of Pleas and Qaurter Sessions was op- ened and held for the county aforesaid at the Court House in Ma- rion : Present and presidingthe worshipful Justices, (to-wit :) John S. Brown, Chairman. Swan P. Burnett. Thos. J. Hallyburton. At which said term the following proceedings were had and done: At said term a petition was returned into Court in the following words and figures, (to-wit :) State of North Carolina, ) Court of Pleas and Quarter Sessions, McDowell County. | July Term, 1860. To the Justices of the Court of Pleas and Quarter Sessions for the county ot McDowell, in the State of North Carolina. The petition of Hiram Kelly against the Western North Carolina Railroad Company, defendants. Your petitioner humbly complaining showeth unto your worships that he is seized and possess- ed of two tracts of land, situated and being in McDowell county, upon Mill Creek, and your petitioner further showeth that the "Western North Carolina Railroad Company is authorized by its charter to locate and establish a railroad from Salisbury to the French Broad River, passing through said land, and that the said company has located the said road upon and through the said tracts, to the great injury and damage of your petitioner, that the said road as located by the officers of the said company a'ong the narrow bottom lands upon said Mill Creek for more than one mile, and entirely destroying the value of your peti- tioner's land for cultivation, and greatly interfering with the comforts and conveniences of his dwelling house and other improvements so much so as in all probability to require their removal. Your petitioner showeth to your worship that he will be greatly injured and damaged, by reason of the location of said road, and is desirous of having the damages sustained by him ascertained ii s the manner prescribed by the charter of the said company, and therefore prays your worships to appoint a Board or commission of valuation agreeable to the said charter to assess the damages done your petitioner by reason of the said road, and report to this Court — and to the eud that the said company may be made party to this petition. May it please your worships to order that a copy of this petition, together with a Subpoena, issue to the said company to be served Petition. (n6) upon Robert C. Pearson, President of the said company, commanding the said company to appear at the next term of this Court, and answer this petition, &c, &c. And may it please the Court to grant your petitioner such other and further relief as the premises require or will justify, as in duty bound will ever pray, &c, &c. B. S. Gaithke, Attorney for Petitioner. Upon the back of said petition is the following endorsement : Hiram Kelly, vs. Western North Carolina Railroad Company, Petition, July Term, i860. Said petition being returned into Court as aforesaid was placed upon the appearance docket and there stands thus : Hieam Kelly, "| VS. I Westetn North Carolina j e 1 1 n ' Railroad Company. J (B. S. G.) Copy and Subpoena issued 31st August, 1860. Said cause was continued until the next term of this Court, being Fall Term, 1860, and there stands thus : Hiram Kelly, \ vs. V Petition. Western N. Carolina Railroad Company.) (B. S. G. and W. W. A.) At which said term the following subpoena was returned in to Court which is in the words and figures following, to wit : State of North Carolina ; to the Sheriff of Burke County, greeting ; You are hereby commanded to summon Robert C. Pearson, President of the Western North Carolina Railroad Company, personally, to be and appear before the Justice of our Court of Pleas and quarter sessions at the next Court to be held for our said county of McDowell, at the Courthouse in Marion, on the 6th Monday after the 4th Monday in ' September next, then and there to answer the petition of Hiram Kelly, now filed in said Court, a copy of which ?uqpcena. accompanies this subpoena whieh you will deliver to said Pearson and return this subpoena, and this you will in no-wise omit under the penalty prescribed bv law. Witness Alfred M. Fenley, Clerk of our said Court, at office, the 5th Monday after the 4th Monday in June, 1S60, and in the 85th year of our Inde- pendence. Issued the 31st ot August, i860. A. M. Fenley, Clerk. Upon the back of said subpoena is the following, (to-wit :) Hiram Kelly vs. Western North Carolina Railroad Company, . subpoena to McDowell county Court, fall term i860. Executed this 7th of September, 1S60, and at the same time delivered a' copy of the petition accompanying this process to R. C. Pear- son, a director of said Western N. C. Railroad. B. A. Berry, Sheriff. Said cause was continued until the next term of this Court, being fall te a, i860, and there stands thus : Hiram Kelly. ) vs. f Petition. Western North Carolina Railroad Company. ) (B. S. G. and W. W. A.) And thereupon the cause was regularly continued from term to term, (with- out any action had thereon,) up to summer term, 1868, when by an act of the Legislature the cause was transferred from the late county Court of McDowell county, to the Superior Court of McDowell county. State of North Carolina, [ The 10th Monday after the 3d Monday in Sept. McDowell county. ) A. D. 1868, being the 30th of Nov. in said year. Be it remembered that a Superior Court of law is this day opened and held in and for the county of McDowell, at the Courthouse in Marion. Present and presiding and holding said Court, the Hon. Anderson Mitchell, Judge of said Court. The said cause being returned into Court as aforesaid, was placed upon the Civil Issue Docket, and there stands thus: Hiram Kelly, ) vs. > Petition. Western North Carolina Railroad Company. ) (B. S. G. and W. W. A.) And thereupon the cause was continued to the next term of the Court, (to- wit :) On the 2d Monday after the 3d Monday in April, 1869, at which last mentioned term, at the Court House in Marion, before the Honorable J. L. Henry, Tudge of said Court, the parties aforesaid, by their attorneys aforesaid come ; And thereupon, the cause is continued to the next term of the Court, (to- wit :) On the 2d Monday after the 3rd Monday in September, 1869, at which last mentioned term, at the Court House in Marion, before the Honorable R. [H. Cannon, Judge of said Court, the parties aforesaid, by their attorneys afore-, said, come; And thereupon the cause is continu:d to the next term of the Court '(to-wit :) On the 2nd Monday after the 3d Monday in April, 1870, at which last mentioned term, at the Court House in Marion, before the Honorable J. L. Henry, Judge of said Court, when the following order was made, to-wit : Hiram Kelly, ) Against >• Petition. W N. C. R. R. Co. ,) I It is ordered by the Court with the consent of the parties that C. L. S. Corpening, J. B. Burgin, Thos. Lytle, (Sen.,) J. A. Cox- ey. and Noah Souther, be appointed commissioners, to assess the damages sustained by the plaintiff, and report to the next term of , . ,-T ati 1 • .1 - Commission'rs this Court. And thereupon the cause is continued to the next appointed. ffeerm of the Court, (to-wit :) on the 2nd Monday after the 3rd Monday in September, 1870, at which last mentioned term at the (nS) Court House in Marion, before the Honorable J. M. Cloud, Judge of said Court. At which said term the following report was re- turned unto Court which is in the following words and figures, (to-wit :) North Carolhia, McDowell County, Superior Court : We, the commissioners, appointed by order of Court, to assess the damages sustained by Hiram Kelly by reason of the Western North Carolina Railroad running through his land, in cutting timber, &c, — do assess said damages to the amount of two hundred dollars with the understanding that no (October 3rd, 1870) portion of the grounds occupied by the dwelling house and other out build- ings of the said Hiram Kelly, are condemned or to be claimed by said railroad company, and only a sufficiency of his lands to be used by the corporation as may be necessary for the road-bed, and keeping up the same. fC. L. S. CoBPENING, | Thos. Lttle, (Signed.) ■{ J. A. Coxey, | JOS. B. BlTBGIN, (^NOAH SOUIHEB. We, the commissioners, in making the above allotment for damages intend the store house now occupied by Malone & Co., to be the property of the rail- road at the expiration contract. ("Thos. Lytle, ^c;™„,q -\ J NOAH Southee, (Signed.) { jQS B BuRGi ^ [J. A. Coxey. Also at which said term the following exceptions were filed, which are in the following words and figures, (to-wit :) Hie am Kelly, ) VS. V W. N. C. R. R. Co. ) The applicant, Hiram Kelly, excepts to the report in this case. 1. The commissioners insert terms and conditions which do not legally bind tbe railroad company, and therefore no protection to Kelly. 2. The commissioners have omitted to take in consideration several important E r X e C po P r t t i .° nS t0 elements of damage. 3. Commissioners wrongfully and carelessly refused to inspect the damaged premises, or to hear proof. 4. Commissioners did not give notice of the time and place of meeting. 5. The damage of $200 is wholly inadequate. Report Filed — Exceptions Filed. Keport set aside and continued under former reference to the Report s e t nex t term of the Court, (to-wit :) On the 2d Monday after the 3rd Monday in April, 1871, at which last mentioned term, at the Court House in Marion, before the Honorable James L. Henry, Judge of and judgment. (119) said Court, the parties aforesaid, by their attorneys aforesaid, come when the following proceedings were had, to-wit : Hiram Kelley, ) (Erwin.) against f Petition for damages. Except's with W. N« C. R. R. Co. ) (Gaither.) g™^ «" Exceptions heretofore filed withdrawn ; the reference stricken out ; and judg- ment pursuant to former award : Hiram Kelley, ) Judgment $200.00, with interest against [■ on the same from the 1st day of The Western North Carolina Railroad Co. ) May, 1871, till paid, and costs. A. M. Finley, C. C. C, $7 50 D. O. H. W. Gillespie, C. S. C, 6 85 County Tax 1 00 Att'y A. M. Erwin, 10 00 Sh'ff A. H. Simmons, 10 40 " B. A. Berry, 60 Cons. Thomas Lytle, 5 10 " Noah Souther, 5 10 " Jos. B. Burgin, 5 10 " J. A. Coxey, 5 10 C. L. S. Corpening, 5 10 $62 85 And thereupon execution issued upon the above entitled judg- ment, returnable to Fall Term, 1871, in the following words and figures, ■to-wit : State of North Carolina; To the Sheriff of McDowell County, Greeting: "We command you, that of the goods and chattels, lands and tenements, of Executl0n - the Western North Carolina Railroad Company, if to be found in your county, you cause to be made the sum of two hundred ($200.00,) dollars, with interest on the same from the 1st day of May, 1871, till paid, and costs, which lately, in our Superior Court, lor the county of McDowell was adjudged to be due Hiram Sibley for debt, besides the further sum of ($54.45,) fifty four dollars and forty five eents for costs and charges in said suit expended, whereof the said Railroad Company is liable, as appears to us of record. And, have you the said moneys, besides your fees for this service, before our said Court, at Marion, on the 2d Monday after the third Monday in September next, then and there to render to the said Court the debt, and the costs and charges aforesaid. Herein fail not, and have you then and there this execution. Issued the 14th day of August, 1871. D. O. H. W. Gillespie, Clerk of the Superior Court of McDowell County. And upon the back of the foregoing execution is the following endorsement, ( 120) (to-wit :) No. 38, Hiram Kelley, against the Western N. Ca. Railroad Com- pany, fi fa., returnable to Fall Term, 1S71, McDowell Superior Court ; judg- ment $200.00, with interest on the same from the 1st day of May, 1871, until paid, and costs. A. M. Finley, C. C. C, $ 7 50 D. O. H. W. Gillespie, C. S. C, 6 45 County Tax, 1 00 Sheriff A. H. Simmons, 10 60 Attorney, B. S. Gaither, 4 00 Sheriff B. A. Berry, 60 Commissioners, Thomas Lytle, 5 10 " Noah Souther, 5 10 * " Jos. B. Burgin, 5 10 J. A. Coxey, 5 10 C. L. S. Corpening, 5 10 $ 5 4 45 To hand, Sept. 2, 1871. (Signed.) A. H. Simtcons, Sheriff, Levy on train. Levy made on the Morganton train consisting of one railroad engine, two coaches and ond box car, to satisfy several judgments issued from McDowell Superior Court, now in my hands for collection, September 12th, 1871. (Signed.) A. H. Simmons, Sheriff. Sale of jrain. After due advertising, sale made, when W. H Malone became the last and highest bidder at two hundred and fifty dollars. No money paid into office. No money p'd- (Signed.) A. H. Simmons, Sheriff. The foreging and entitled judgment was carried to Spring Term, 1872, and there stands thus; in the following words and figures, to-wit : Hieam Kelly, } Against The Western North Carolina Railroad Company. ) Judgment $200.00 with interest on the same from 1st day of May, 1871, till paid, and cost $65.17. And thereupon an execution issued upon said judgment return- able to Spring Term, 1872, in the following words and figures, to-wit : State of Noeth Caeolina. To the Sheriff of McDowell County, — Greeting: We command you, that of the goods and chattels, lands and tenements of the Western North Carolina Railroad Company, if to be found in your county, you cause to be made the sum of ($200.00) two hundred dollars with interest on the same, from the 1st day of May, 1871, till paid and cost, which lately in our Superior Court, for the county of McDowell, was adjudged to be due Hiram ( I31 ) Kelly for debt, besides the further sum of sixty-five dollars arid seventeen cents ($65.17) for costs and charges in said suit expended, whereof the said railroad company is liable as appears to us of record : And have you the said moneys, besides your fees for his service before our said Court at Marion on the 2nd Monday after the 3rd Monday in April next, then and there to render to the said Court, the debt, and the costs and charges aforesaid. Herein fail not, and have you then and there this execution. Issued the 25th day of December, 1871. (Signed.) D. O. H. W. Gillespie, Clerk of the Superior Court, of McDo well County. And upon the back of the above entitled execution is the follow- ing endorsement, to-wit : No. 140, Hiram Kelly against the Western North Carolina Eailroad Company. Fi fa returnable to Spring Term, 1872, McDowell Superior Court. Judgment $200.00, with interest on the same from the 1st day of May, 1871, till paid and cost. A. M. Finley, C. C C. D. O. H. W. Gillespie, C. S. C, County Tax, , Atty, A. M. Erwin, Shff. A. H. Simmons, '• B. A. Berry, Commissioner Thomas Lytle, " Noah Souther, " J. B. Burgin, " J. A. Coxey, " C. L. S. Corpening, Docketing to Plaintiff, $65 17 Levied this Execution this day on the following property of the Western North Carolina Railroad Company, all the rights and interests of said company, the real estate, consisting of the road-bed and lands connected therewith, station houses, water tanks, &c, and all the franchises of said railroad company, December 1st, 1871. (Signed.) A. H. Simmons, Sheriff. Also an execution issued to the Sheriff of Burke County, returna- ble to Spring Term 1872, which is in the following words and fig- ures, (to wit.) : State of Noeth Carolina, To the Sheriff of Burke County, Greeting : We command you, that of the goods and chattels, lands and tenements of the Western North Carolina Rail Road Company, if to be found in your coun- ty, you cause to be made the sum of ($200.00) two hundred dollars, with inter- est on the same from the 1st day of May, 1871 till paid, and cost, which lately, in our Superior Court, for the county of McDowell, was assigned to be due Hi- > 7 50 9 17 1 00 10 00 10 40 60 5 10 5 10 5 10 5 10 5 10 1 00 (122) ram Kelley for debt, besides the further sum of sixiy-five dollars and seventeen cents ($65.17) for costs and charges in said suit expended, whereof the said Execution. Rail Road Company is liable as appears to us of record. And have you the said moneys besides your fees for this service before our said Court at Marion on the. 2nd Monday after the 3d Monday in April next, then and there to render to the said court the debt and the costs and charges aforesaid. Herein fail not, and have you then and there this execution. Issued the 25th day of December, 1871. [Seal.] D. O. H, W. Gillespie, Clerk of the Superior Court of McDowell County. And upon the back of the foregoing and entitled execution is the follovring endorsement, to wit. : No. 140, Hiram Kelley against the Western North Carolina Rail Road Company, Ji fa. returnable to Spring Term 1872, McDowell Superior Court. Judgment $200.00, with interest on the same from the 1st day of May, 1881, till paid and cost. A. M. Pindley, C C. C, $7 50 D. O. H. W. Gillespie, C. S. C, 9 17 County Tax, 1 00 Att'y A. M. Erwin, 10 00 Shff. A. H. Simmons, 10 40 " B. A. Berry, 60 / Com, Thomas Lytle, 5 10 " Noah Souther, 5 10 " J. B Burgin, 5 10 " Coxey, 5 10 " C. L. S. Corpening, [5 10 Docketing to Plaintiff, 1 10 $65.17 To hand, December 29th, 1871. E. P. Mooee, Shff. All of the property of the Defendant in my county, and liable to execution, sold by me and the proceeds applied to payment of execution on an older judg- ment. This 23d March, 1872. [Signed.] E. P. Moore, Shff. By Jos. Brittain, Dept. Shff. And thereupon, an execution issued upon the foregoing and en titled j udgment to the Sheriff of Catawba County, returnable to Spring Term 1872, which is in thefollowing words and figures, to wit. : State of Noeth Carolina, Execution to T° the Sheriff of Catawba County, Greeting : cat wba co. -yy e command you, that of the goods and chattels, lands and tenements of the ( 12 3) Western North Carolina Rail Road Company, if to be found in fyour coucty, you cause to be made the sum of ($200.00,) two hundred dollars, with interest on the same from the 1st day of May 1871, till paid and cost, which, lately in our Superior Court, for the county of McDowell, was adjudged to be due Hiram Kelly for debt, besides the further sum of sixty-five dollars and seventeen cents ($65.17) for costs and charges in said suit expended, whereof the said Rail Road Company is liable as appears to us of record. And have you the said moneys, besides your fees for this service, before our said Court at Marion, on the 2nd Monday after the 3d Monday in April next, then and there to render to the said Court, the debt and the costs and c barges aforesaid. Herein fail not, and have you then and there this execntion. Issued the 25th day of December, 1871. [Seal.] D. O. H. W. Gillespie, Clerk of the Superior Court of McDowell County. And upon the back of the said execution is the following endorse- ment, to wit : No. 140, Hiram Kelley against the Western North Carolina Railroad Com- pany, fi fa., returnable to the Spring Term, 1872, McDowell Superior Court ; iud°rnent $200.00, with interest on the same from the 1st day of May, 1S71, till paid, and cost. A. M. Finley, C. C. C, $ 7 50 D. O. H. W. Gillespie, C. S. C, 9 17 County Tax, 1 00 Attorney, A. M. Erwin, 10 00 Sheriff A. H. Simmons, 10 4O Sheriff B. A. Berry, 60 Commissioners, Thomas Lytle, 5 10 " Noah Souther, 5 10 " Jos. B. Burgiu, 5 10 J. A. Coxey, 5 10 C. L. S. Corpening, 5 10 Docketing to Plaintiff, 1 00 $ 65 17 After due advertisement, I sold at the Court House at Newton, county of Catawba, on the 8th day of January, 1872, the entire franchise of the Western North Carolina Railroad Company, together with all the rights and privileges S ^J e . t ? R " Y ' incident thereto, or in anywise connetced therewith, when and where R. Y. McAden became the purchaser, he bidding, the debt and interest, and cost, and taking the property for the limit of time prescribed in the charter of the corpo- ration, McAden's receipt filed on the fi fa., in Catawba, costs paid in Iredell. See levy in Catawba county, at Newton, he, McAden, claiming the debt by purchase, &c. (Signed,) ' J. Clixe, Sheriff. And thereupon an execution issued upon the foregoing and en- (I2 4 ) titled judgment, to the sheriff of Iredell cotinty, returnable to Spring term, 1872, which is in the following words and figures, to- wit : State of North Carolina ; To the Sheriff of Iredell County — Greeting : We command you, that of the goods and chattels, lands and tenements, of the Western North Carolina Railroad Company,!, to be found in your county, Execution y ou cause to be made the sum of ($200.00,) two hundred dollars, with interest on the same from the 1st day of May, 1871, till paid, and cost, which lately, in our Superior Court for the county of McDowell, was adjudged to be due Hiram Kellev for debt, besides the further sum of sixty -five dollars and seventeen cents, ($65.17,) for costs and charges in said suit expended, whereof the said Railroad Company is liable, as appears to us of record. And have you the said moneys, besides your fees, for this service, before our said Court at Marion, on the 2d Monday after the third Monday in April next, then and there to render to the said Court the debt, and the costs and charges aforesaid. Herein fail not. and have you then and there this execution. Issued the 25th day of December, 1S71. [Seal.] D. O. H. W. Gillespie, Clerk of the Superior Court of McDowell County. And upon the back of the foregoing and entitled judgment is the following endorsement, to-wit : No. 140. Hiram Kelley against the Western North Curolina Railroad Com- pany, returnable to Spring Term, 1S72, McDowell Superior Court, judgment $200.00 with interest on the same from the 1st day of May, 1871, till paid, and cost. A. M. Finley, C. C. C, $ 7 50 D. O. H. W. Gillespie, C. S. C, 9 J 7 County Tax, 1 00 Att'y A. M. Erwin, 10 00 Sh'ff A. H. Simmons, 10 40 " B. A. Berry, 60 Com'r Thos. Lytle, 5 10 " Noah Souther, 5 10 " J. B. Burgin, 5 10 " J. A. Coxey, 5 10 " C. L. S. Corpening, 5 10 Docketing to Plaintiff, 1 00 $ 65 17 Not satisfied. I had one from the clerk of the Superior Court of Iredell, for the same amount and for the same man, and it is satisfied in this office in Ire- dell. (Signed,) W. F. Wosson, Sh'ff. And thereupon an execution issued upon the foregoing- and entitled judgment to the Sheriff of Rowan county, returnable to the Spring Term, 1872^ which is in the following words and figures, to-wit : State of North Carolina. To the Sheriff of Rowan county, Greeting : We command you, that of the goods and chattels, lands and tenements of the Execution. Western North Carolina Railroad Company, if to be found in your county, you cause to be made the sum of ($200.00) two hundred dollars, with interest on the same from the 1st day of May, 1871, till paid and cost, which lately in our Su- perior Court, for the county of McDowell, was adjudged to be due Hiram Kelley for debt, besides the further sum of sixty -Ave dollars and seventeen cents ($65. 17) for costs and charges in said suit expended, whereof the said railroad company is liable as appears to us of record. And have you the said moneys, besides your fees for this service, before our said Court at Marion, on the 2nd Monday after the 3rd Monday in April next, then and there to render to the said Court the debt and the costs and charges aforesaid. Herein fail not and have you then and there this execution. Issued the 25th day of December, 1871. [Seal.] D. O. H. W. G-illepise, ■ Clerk of the Superior Court of McDowell county. And upon the back of the foregoing and entitled execution is the following endorsement, to-wit : No. 140, Hiram Kelley against the Western North Carolina Railroad Company. Fi fa returnable to the Spring Term, 1872, McDowell Superior Court. Judgment $200.00 with interest on the same from the 1st day of May, 1871, till paid, and cost. A. M. Finley, C. C. C, D. O. H. W. Gillespie, C. S. C, County Tax, A. M. Erwin, Shff. A. H. Simmons, " B. A. Berry, Commissioner Thomas Lytle, " Noah Souther, " J. B. Burgin, " J: A. Coxey, " C. L. S. Corpening, Docketing to Plaintiff, $65 17 Received December 28, 1871. (Signed.) W. W, Walton, Sheriff. No goods or chattels, lands or tenements of the defendants that is subject to execution to be found in my county to satisfy this fi fa. (Signed.) W. W. Walton, Sheriff. 7 50 9 17 1 00 10 00 10 40 60 5 10 5 10 5 10 5 10 5 10 1 00 (126) And thereupon an execution was issued by the Clerk of the Superior Court of Rowan county, upon the above entitled judg- ment, and returned to the office of the Clerk of the Superior Court of McDowell county, which is in the following words and figures, to-wit : Rowan County — In the Superior Court, The State of North Carolina. To the Sheriff of Rowan County, — Greeting : Whereas, Judgment was rendered on the 1st day of May, 1871, in an action between Hiram Kelley, Plaintiff, and the Western North Carolina Railroad Execution. Company, Defendant, in favor of the said Hiram Kelley, Plainti™, against the said Western North Carolina Railroad Co npany, Defendant, for tha sum of two hundred dollars, as appears to us by the Judgment Roll, filed in the office of the Clerk of said Court; and whereas the said judgment was docketed in said county, on the 27th day of November, 1871, and the sum of two hundred dollars is now actually due thereon, with interest on the same from the 1st day of May, 1871, and the further sum of sixty-three dollars and fifty cents for cost and disbursements in said suit expended, whereof the said Western North Car- olina Railroad is liable. Y' u are therefore commanded, to satisfy the said judgment out of the personal property of the said Defendant within your county; or if sufficient personal pro- perty cann.t be found, then, out of the real property in your county belonging to such Defendant — on the day when the said judgment was so docketed in your county, or at any time thereafter, in whose hands soever the same may be; and have you this execution, together with the money, before our said Court, at the Court House in Salisbury on the 4th Monday after the 3rd Monday in March next, then and there to render the same to the said Plaintiff. Witness : A. Judson Mason, Clerk of our said Court at office in Salisbury, the 4th Monday after the 3rd Mondy in September, 1871. Issued the 27th day of November, 1871. [Seal] A. Judson Mason, Cierk of the Superior Court for Rowan county. And upon the back of the foregoing entitled execution is the following endorsements, to-wit : No. 873, Hiram Kelley, Plaintiff, against Western North Carolina Railroad Com- pany, execution against property, to Spring Term, 1872, Rowan Superior Court. Judgment 1st May, 1871; Principal $200.00. Costs. A. M. Finley, C. C. C, $7 50 D. O. H. W. Gillespie, C. S. C, 6 85 County Tax 1 00 Att'y A. M. Erwin, 10 00 Sh'ff A. H. Simmons, 10 40 " B. A. Berry, 60 s IO 5 IO 5 IO 5 IO 5 IO 1 00 65 ( "7 ) Corns. Thomas I/jt'e, " Noah Souther, " J. A. Coxey, " Jos. B. Burgin, C. L. S. Corpening, Docketing to Plaintiff, A. J. Mason, Clerk, $63 50 Received November 29th, 1871. (Signed.) W. W. Walton, Sheriff. No goods or chattels, lands or tenements of the defendants to be found in my county to satisfy this execution. (Signed.) W. W. Walton, Sheriff. And thereupon an execution issued in Iredell county, and return- ed into the Clerk's office in McDowell county, which is in the following words and figures, (to- wit :) State of North Carolina, Iredell Cottnty, — In the Superior Court. To the Sheriff of Iredell County,— Greeting : Whereas, Judgment was rendered on the 1st day of May, 1871, in an action > between Hiram Kelley, Plaintiff, and the Western North Carolina Railroad Company, Defendant, in favor of the said Hiram Kelley, Plaintiff, against the Western North Carolina Railroad Company, Defendant, for the sum of two hundred dollars as appears to us by the Judgment Roll filed in the office of the Clerk of said Court, and whereas the said judgment was docketed in said county on the 29th day of November, 1871, and the sum of (#200.00) two hundred dol- lars is now actually due thereupon, with interest on $200.00 dollars from the 1st day of May, 1871, until paid. And the further sum of sixty-three dollars and fifty -five cents for cost and disbursements in said suit expended, whereof the said Western North Carolina Railroad Company is liable. You are therefore commanded to satisfy the said judgment out of the personal property of the said Defendant, within your county, or if sufficient personal pro- perly cannot be found, then out of the real property in your county belonging to such defendant on the day when the said judgment was so docketed in your couuty, or at any time thereafter, in whose hands soever the same may be; and have you this execution together with the money before our said Court at the Court House in Statesville on the 2nd Monday after the 3rd Monday in March next, then and there to render the same to the said Plaintiff. Witness C. L. Summers, Clerk of our said Court at office in Statesville, the 2nd Monday after the 3rd Monday in August, 1871. Issued the 29th day of November, 1871. (Signed.) C. L. Summers, Clerk of the Superior Court for Iredell County. And upon the back of the foregoing entitled execution is the (.128) following endorsement, (to-\vit :) No. 640. ~] Hiram Kelley, ; VS. \ The Western North Carolina Railroad Company, J Execution to Spring Term, 1872, Judgment 1st May, 1871. $200.00 with interest from 1st May, 1871, till paid. A. M. Finley, C. C. C. D. O. H. W. Gillespie, C. S. C, County Tax, Atty. A. M. Erwin, Shff. A. H. Simmons, " B. A. Berry, Corns. Thomas Lytle, " Noah Souther, " J. B. Burgin, " J. A. Coney, " C. L. Corpening, Docketing to Plaintiff, Docketing in Iredell, This execution and Sheriff's return, $63.55 Levied this execution tins day on the following property of the Western N. Levy. C. Rail Rroad Company, all the rights and interest of said Company. The real estate consisting of Rail Road bed and lands connected with same, station hous- es, water tanks, &c, and all the franchises of said Rail Road Company, Decem- ber 1st, 1871. (Signed.) W. F. Wosson, Sheriff. Debt principal $ 7 50 6 85 1 00 10 00 10 40 60 5 10 5 10 5 10 5 10 5 10 1 00 $62.85 25 45 Sale of fran- In pursuance of notice heretofore duly given, I, this the 6th day of January 1872, at the Court House door in the county of Iredell, have this day sold the chise, Ac. to franchises, with all the rights and privileges thereof, and all the property &c. e ^ " c * ' " passing therewith by law of the within named, the Western North Carolina Rail Road Company, to satisfy the within fi fa., R. Y. McAden became the last and highest bidder for the same by bidding the amount of this, the within exe- cution and cost, thereon, to-wit. : the sum of two hundred and eighty dollars and forty-six cents ($280.46). Retain $7.91, my fees and commissions, pay into office $271.75 — amount of judgment and court cost. (Signed.) W. F. Wosson, Sh'ff. Received my fee, 45 cents, for issue execution and return. (Signed.) C. L. Summers, C. S. C. State of North Carolina. McDowell County. I. D. O. H. W. Gillespie, Clerk of the Superior Court for the county of Mc- ( 12 9 ) Dowell and State aforesaid, do hereby certify that the foregoing' is a full, true and perfect transcript of the record (in the case up to the rendition of the judg- ment, and a full, true and perfect copy of all the record had and done in the case since the rendition of the said Judgment) wherein Hiram Kelley is Plain- tiff and the Western North Carolina Railroad Company is Defendant. Given under my hand and seal, at office in Marion, the 20th day of October, 1881. [Seal.] D. O. H. W. Gillespie, Clerk Superior Court, McDowell County. I certify that the only money I ever received on my judgment of $200 against the Western North Carolina Rail Road Company was paid me by my Attorney, A. M. Erwin. This money was made by a sale of the Road to R. Y. McAden. Oct. 3d, 1881. Hikam Kelley. Test. : M. E. Carter. I certify that no money was ever paid to me by W. H. Malone or any other person on a sale made by me of a Rail Road engine and coaches, sold under ex ecution on the judg uent of Hiram Kelley vs. Western North Carolina Railroad- Company. My return can be seen on Judgment Docket of McDowell county, to Fall Term, 1871, Page 151. Oct. 3d, 1881. A. H. Simmons. Test. : M. E. Carter. Iredell Judgment Docket, Execution to Spring Term 1871, Page 412. Judgment 1st May, 1871, Principal $200, Cost $63.10. Doeketed 29th Nov., 1871. Bmcution Issued, In pursuance of notice heretofore duly given, I, this the 6th day Jan. 1872J at the Court House door in the county of Iredell, have this day sold the fran- chise, with all the rights and privileges thereof, and all the property &c. , per- taining therewith, by law of the within named, the Western North Carolina Rail Road Company, to satisfy the within Jlfa., R. Y. McAden became the last and highest bidder for the same by bidding the amount of this the within execution and costs thereon, to- wit. : the sum of two hundred and eighty dol- lars and forty-six cents ; into office $271.75, amount of this Judgment and Court cost. W. F. Wosson, Sh'ff . Debt, interest and cost forwarded by express to the Clerk of the Superior Court of McDowell county, January 16th, 1872— $271.30. C. L. Summers, C. S. C. Note. — The Sheriff's deed to R. Y. McAden, founded on the foregoing record, may be seen on page of this Compen- dium. (*3°) (*30 ■''.■ . . (i3 2 ) Pe-rition- TRANSCRIPT FROM McDOWELL COUNTY— THOM- AS Y. GREENLEE, AND THOMAS Y. GREENLEE", TRUSTEE OF M. M. GREENLEE, AGAINST THE WESTERN N. C. R. R. COMPANY. State of North Carolina, ^ Fifth Monday after the 4th Monday in McDowell County.) September, i860. Being the 29th of October in said year. Be it known that a Court of Pleas and Quarter Sessions was opened and held for the county aforesaid, at the Court House in Marion, present and presiding, the worshipful justices to-wit : B. F. Bynum, Chm'n., Elijah Morgan, James Finley. At which said term the following proceedings were had and done, to-wit : At said term the following petition whs handed in to Court, which is in the words and figures following, to-wit : North Carolina, ) Court of Pleas and Quarter Sessions, McDowell County.) Fall Term, 1S60. To the Worshipful, the Justices of said Court : The petition of Thomas Y. Greenlee against the Western No. Ca. Rail- road Company : Your petitioner humbly complaining, showeth to your Worships that he is seized and possessed of a valuable tract of land in said county, lying on the wa- ters of Catawba River, and that the defendant, the Company aforesaid, is au- thorized in its charter to construct a railroad from the town of Salisbury to the French Broad River, near Asheville, and that the said Company has so located said road on the lands of your petitioner as to endamage him very seriously. Your petitioner therefore prays your Worships to appoint a board of com- missioners to ascertain and assess the damage done him under the provisions of the charter aforesaid, and that a copy of this petition, with a subpoena, be served upon A. M. Powell, the President of the said Company, to appear at the next term of this Court, to be held at the Court House in Marion, on the 5th Monday after the 4th Monday in December, and answer the premises, and your petitioner shall ever pray, &c. Dickson, Att'y. Upon the back of said petition is the following, to-wit : Thomas Y. Greenlee vs. VV. N. C. R. R. Company. Petition, McDowell coun ty Court, Fall Term, 1860. Dickson, Att'y. ( i33) Said petition being in Court as aforesaid was placed upon the Appearance Docket, and stands thus : Thomas Y. Greenlee, ) (Dickson.) vs. > Petition. Western North Carolina Railroad Company. ) At which said term the following order was made : Drier for pro- cess. Ordered that process issue as prayed for. Said cause was continued until the next term of this Court, and there stands thus, being Winter Term, 1861. Thomas Y. Greenlee, ) (Dickson.) vs. j- Petition — Copy of Subpoena Western N. Carolina Railroad Company. ) served. At which said Term the following subpoena was returned into Court, which is in the words and figures following, to-wit ; State of North Carolina ; To the Sheriff of Catawba County — Greeting : You are hereby commanded to summon A. M. Powell, President of Western North Carolina Railroad Company, personally to be and appear before the Justices of our Court of Pleas and Quarter Sessions, at the next Court to be held for our said county of McDowell, at the Court House in Marion, on the 5th Monday after the 4th Monday in December inst., then and there answer the petition of Thomas Y. Greenlee, now filed in said Court, a copy of whicn SuD P oena - accompanies this subpoena, which you will deliver to said President. And this you shall in no wise omit, under the penalty prescribed by law. Witness, Alfred M. Finley, Clerk of our said Court, at office, the 5th Mon- day after the 4th Monday in September, i860, and in the 85th year of our In- dependence. Issued 8th December, i860. [Seal.] A. M. Finley, Clerk. Upon the back of said subpoena, is the following : Thomas Y. Greenlee vs. Western N. C. R. R. Co. Subpoena to McDowell County Court, Winter Term, 1861 : service of sub- poena. To hand the 14th December, i860, executed the 18th December, i860, by summoning J. E. Robinson, sheriff, and delivering a copy of petition. J. E. Robinson, Sheriff. Said cause was continued until the next Term of this Court, being Spring Term, 1861, and there stands thus : Thomas Y. Greenlee, ) (Dickson.) vs. >- Petition. Western North Carolina Railroad Company. ) And thereupon the cause was regularly continued from term Cause (without any action had thereon) up to summer term, 1868, when to Sup'r. C't. d (*34) by an act of the Legislature the cause was transferred from the late county Court of McDowell county to the Superior Court of Mc- Dowell county. State of North Carolina, ) The 10th Monday after the 3rd Monday in Sept- McDowell County. - ember, A. D., 1868, being the 30th of November ) in said year. Be it remembered that a Superior Court of Law is this day opened and held, in and for the county of McDowell, at the Court House in Marion; present and presiding, and holding said Court, the Honorable Anderson Mitchell, Judge of said Court. The said cause being returned into Court as aforesaid was placed upon the civil issue docket and there stands thus : Thomas Y. Geeenlee, ) (Dickson. VS. j. Petition. Western North Carolina Railroad Companny. ) (B. S. G., A. C. A. Said cause was regularly continued from term to term without any action being had thereon until Spring Term, 1870, being the 2nd Monday after the 3rd Monday in April, 1870, the Hon. J. L. Henry, Judge presiding; when the following proceedings were had and done, to-wit : Thomas Y. Greenlee, "] (Dickson. VS. J- Petition. Western North Carolina Railroad Comapany. J (B. S. G., A.C. A. It is ordered by the Court with the consent of the parties that all matters of difference in this cause be referred to C. L. S. Corpening, J. B. Burgin, Thomas C to U Cominers d Lytle. J. A. Coxey, and Noah Souther, to assess the damages and report to the next term of this Court. Said cause was then continued until the next term of this Court being Fall Term, 1870, and there stands thus : Thomas Y. Geeenlee, ~) (A. M. E. VS. > Petition. Western North Carolina Railroad Company. J (B. S. G., A. C. A. Said cause was continued under former reference to the next term of this Court being Spring Term, 187 1, and there stands thus: Thomas Y. Geeenlee, "] (A. M. E. VS. [-Petition. Western North Carolina Railroad Company. J (B. S. G., A. C. A. Said cause was continued until thejnext term of this Court under former order being Fall Term, 1871, and there stands thus : Thomas Y. Greenlee, ) (A. M. E. VS. > Petition. The Western North Carolina Railroad Company.) (B. S. G., A. C. A. (i35) Said cause was continued until the next term of this Court being Spring Term, 1872, and there stands thus : Thomas Y. Greenlee, ) (A. M. E. VS. [ Petition. The Western North Carolina Railroad Company. ) (B. S. G., A. C. A. At which said term the following proceedings were had and done, to-wit : Report of commissioners filed which is in the words and figures following, to-wit : STiTE "2MfSE£ jSuperiorCour,. We, the undersigned commissioners, appointed by the order of the Superior Court, made in the case of Thomas Y. Greenlee against the Western North R tore m- Carolina Railroad company, to inquire and assess the damages, sustained by the missioners. plaintiff by reason of the said railroad track, and the construction of the same, through plaintiff's land, and report to this Court, have had the matter under consideration, and have viewed the premises, and now report as follows : we find that the plaintiff is the owner of a tract of land, in fee simple, upon which he resides, and is likewise the owner of another track as the trustee of Martha M. Greenlee, situated immediately below his own tract, commencing at the river at the bridge, and extending down the railroad tract to the tank on the said road, we find that the damages sustained by the plaintiff by reason of said railroad track and construction, running from the river at the bridge through ihe plaintiff's land west to his line to be fifteen hundred dollars, and we further find that the damages sustained by the plaintiff as trustee of Martha M. Greenlee, commencing at the bridge on the river and running east with the railroad to the line of said track near the railroad tank by reason of the said railroad and the construction thereof, to be the sum of seven hundred dollars. Given under our hands and seals, this 20th March, 1872. [Seat.,] Thomas Lytle, [Seal,] J. A. Coxey, [Seal,] N. Souther, [Seal,] Joe B. Burgin. Thomas Y. Greenlee, ) vs. [■ Petition. The Western North Carolina Railroad Company. ) Judgment according to award, for the sum of ($1,500.00,) with Jud s ment - interest on the same from the 25th day of March, 1872, till paid, and cost. Judgment of the Court accordingly, for whisht execution is awarded. I Thomas Y. Greenlee, Trustee of Martha M. Greenlee, "| j against }■ Petition. I The Western North Carolina Railroad Company. J Judgment. Judgment according to award, for the sum of $700.00, (seven hun- IO 6o 6 5« i 00 IO 00 21 00 I 00 6 00 6 00 6 00 6 10 (136) dred dollars,) with interest on the same from the 25th day of March, 1872, till paid, and cost. Judgment of the Court accordingly, for which execution is award- ed. No execution issued until Fall Term, 1873. The following is the judgment and costs on the Execution Dock- et, Fall Term, 1873 : Judgment $1,500.00, with interest on the same from the 25th day of March, 1S72, till paid, and costs. A. M. Finley, C. C. C, D. O. H. W. Gillespie, C. S. C, County Tax, Thomas Y. Greenlee, Att'y A. M. Erwin, Against Fi fa. Sh'ff A. H. Simmons, The Western North Caroli- " J. E. Robeson, na Railroad Company. Com'r Thos. Lytle, " Noah Souther, " J. B. Burgin, •' J. A. Coxey, $ 74 20 Issued 1st May. 1873. And thereupon an execution issued, which is in the words and fig- tr-es following, to-wit : The State of Noeth Caeolina ; To the Sheriff of McDowell County, — Greeting : We command you, that of the goods and chattels, lands and tenements, of the Western North Carolina Railroad Company, if to be found in your county, you cause to be made the sum of $1,500.00, (fifteen hundred dollars,) with inter- Execution to est on the same from the 25th day of March, 1872, till paid, and cost, which, McDowell co. lately in our Superior Court for the County of McDo-vell, was adjudged to be due Thomas Y. Greenlee for debt, besides the further sum of seventy-four dol- lars and twenty cents, for cost and charges in said suit expended ; whereof, the said Railroad Company is liable, as appears to us of record. And, have you the said moneys, besides your fees for this service, before our said Court at Ma- rion, on the 4th Monday in August next, then and there to render to the said Court the debt and cost and charges aforesaid. Herein fail not, and have you then and there this execution. Issued the 1st day of May, 1S73. D. O. H. W. Gillespie, Clerk of the Superior Court of McDowell County. Upon the back of said execution is the following endorsement : Thomas Y. Greenlee against the Western North Carolina Railroad company Fi Fa. returnable to Fall £Term, 1873, McDowell Superior Courts Received May 1st, 1873.. J. G. Neal, Sheriff. Due search made, no goods, chattels, lands or tenements found to satisfy this Fi. Fa. J. G. Neal, Sheriff. No goods. The following is the cost and judgment on the back of this execution : Judgment $1,500.00 with interest on the same from the 25th day of March, 1872, till paid and cost. A. M. Finley, C. C. C, $10 60 D. O. H. W. Gillespie, C. S. C, 6 50 County Tax, 1 00 Attorney, A. M. Erwin, 10 00 Sheriff A. H. Simmons, 21 00 Sheriff J. E. Robeson, 1 00 Commissioners, Thomas Lytle, 6 00 J. A. Coxey, 6 10 " Noah Souther, 6 00 Jos. B. Burgin, 6 00 $ 74 20 Thereupon an alias execution issued returnable to Spring Term of McDowell Superior Court which is in the words and figures following, to-wit : State of Noeth Caeolina, To the Sheriff of McDowell County, Greeting : We command you that of the goods and chattels, lands and tenements of the Western North Carolina Railroad company, if to be found in your county, you cause to be made the sum of fifteen hundred dollars with interest on the same from the 25th day of March, 1872, till paid and cost, which lately in our Superior Aiias execut'n Court for the county of McDowell was adjudged to be due Thomas Y. Greenlee *° McDowell for debt, besides the further snm of seventy-four dollars and seventy-five cents for costs and charges in said suit expended whereof the said company is liable as appears to us of record; and have you the said moneys besides your fees for this service before our said Court at Marion on the 4th Monday in March next, then and there to render to the said Court the debt and the charges aforesaid, herein fail not, and have you then and there this execution issued the 19th day of February, 1874. D. O. H. W.Gillepise, Clerk of the Superior Court of McDowell county. Upon the back of said execution is the following endorsement, to-wit : No. i. Thomas Y. Greenlee against the Western North Carolina Railroad company. Fi Fa returnable to Spring Term, 1874, McDowell Superior Court; received February 19th, 1874. J. G. Neal, Sheriff, N dg Due search made, nothing found to satisfy this fi fa vvith, March 23rd, 1874. * ° g °° ' J. G. Neal, Sheriff. Also the following is the judgment and cost endorsed on the bac of said execution : ' Judgment $1,500.00 with interest on the same from 25th day of March, 1872, till paid and cost. A. M. Finley, C. C. (*, $ io 6o D. O. H. W. Gillespie, C. S. C, 6 95 County Tax, 1 00 Att'y A. M. Erwin, 10 00 Sh'ff A. H. Simmons, 21 00 '" J. E. Robeson, 1 00 Com'r Thos. Lytle, 6 00 "' J. A. Coxey, 6 10 " Noah Souther, 6 00 " J. B. Burgin, • 6 00 * 74 75 Thereupon an alias execution issued returnable to Fall Term, 1874, of said Court, which is in the words and figures following, to wit : State of North Carolina ; To the Sheriff of McDowell County, — "Greeting : We command you, that of the goods and chattels, lands and ten ements, of the Western North Carolina Railroad Company, if to be found in your county, Alias execu'a. you cause to be made the sum of $1,500.00. (fifteen hundred dollars.) with inter- est on the same from the 25th day o:" March, 1S72, till paid, and cost, which, lately in our Superior Court for the County of McDowell, was adjudged to be due Thomas Y. Greenlee for debt, besides the further sum of $75.10, seventy-five dollars and ten cents, for cost and charges in said suit expended ; whereof, the said Company is liable, as appears to us of record. And, have you the said moneys, besides your fees for this service, before our said Court at Ma- rion, on the 4th Monday in August next, then and there to render to the said Court the debt and cos's and charges aforesaid. Herein fail not, and have you then and there this execution. Issued the 13th day of May, 1S74. D. O. H. W. Gillespie, Clerk of the Superior Court of McDowell Countv. The following is the endorsement on the back of said execution to-wit: No. 36. Thomas Y. Greenlee against the Western North Carolina Railroad company Fi fa. returnable to Fall Term, 1874, McDowell Superior Court; received May 15th, 1874. J. G. Neal, Sheriff. ( *39 ) ". The following is the cost endorsed on the back of said execution. Judgment $1,500.00, with interest on the same from the 25th day of March, 1872, till paid, and cost : A. M. Findley, C C. C, $10 60 D. O. H. W. Gillespie, C. S. C, 7 40 County Tax, 1 00 Att'y A. M, Erwin, 10 00 Shff. A, H. Simmons, 21 00 " J. E. Robinson, 1 00 Com, Thomas Lytle, 6 00 ;< Noah Souther, •,. 6 00 " J. B Burgin, 6 00 " Coxey, 6 10 $75.10 Also the following is the Sheriff's return on said execution : Due search made, nothing found to satisfy this Fi fa. with, August 24th, 1874. No goods. J. G. Neal, Sheriff. And thereupon an alias execution issued returnable to Spring Term, 1875, of McDowell Superior Court, which is in the words and figures, following, to- wit : State of North Carolina ; To the Sheriff of McDowelf County, — Greeting : We command you, that of the goods and chattels, lands and tenements, of the Western North Carolina Railroad Company, if to be found in your county, you cause to be made the sum of fifteen hundred dollars, ($1,500.00,) with in- terest on the same from the 25th day of March, 1872, till paid, and cost, which, Alias execu'n. lately in our Superior Court, for the county of McDowell was adjudged to be due Thomas Y. Greenlee, for debt, besides the further sum of seventy-five dol- lars and 45 cents for cost and charges in said suit expended ; whereof, the said Company is liable, as appears to us of record. And have you the said moneys besides your fees for this service, before our said Court at Marion, on the 4th TSlonday in March next, then and there to render to the said Court, the debt and the costs and charges aforesaid. Herein fail nofa^and have you then and there this execution. Issued the 21st day of October, 1874. D. O. H. W. Gillespie, Clerk of the Superior Court of McDowell County, By A. Burgin, Dep. Clerk. Upon the back of said execution is the following endorsement, to -wit : (140) Judgment $1,500.00, with interest on the same from the 25th day of March, 1872, till paid, and cost. A. M. Finley, C. C. C, $io 6o D. O. H. W. Gillespie, C. S. C, 7 83 County Tax 1 00 Att'y A. M. Erwin, 10 00 Sh'ffA. H. Simmons, 21 00 " J. E. Robinson, 1 00 Com'r Thomas Lytle, 6 00 " J. A. Coxey, 6 10 " Noah Souther, 6 00 " Joe B. Burgin, 6 00 I 75 45 No. 105. Thomas Y. Greenlee against the Western North Carolina Railroad Company, Fi fa., returnable to Spring Term, 1875, McDowell Superior Court. Received October 22nd, 1874. No goods. Due search made, nothing found to satisfy this Fi fa., with March 22nd, 1875. Fee 50 cts. J. G. Neal. Sheriff. Thereupon an alias execution issued, returnable to Fall Term, 1875, of McDowell Superior Court, which is in the words and fig- ures following, to-wit : State of North Carolina ; To the Sheriff of McDowell County — Greeting : We command you, that of the goods and chattels, lands and tenements, of the Alias execu'n. Western North Carolina Railroad Company, if to be found in your county, you cause to be made the sum of fifteen hundred dollars, which, lately in our Superior Court, for the county of McDowell, was adjudged to be due Thomas Y. Greenlee for debt, besides the further sum of seventy -four dollars and ninety cents for cost and charges in said suit expended, whereof the said defendant is liable, as appears to us of record. And have you the said moneys, besides your fees for this service, before our said Court at Marion, on the 4th Monday in August next, then and there to render to the said Court the debt and' the costs, and charges, aforesaid. Herein fail not, and have you then and there this exe- cution. Issued the iSth 0y of May, 1S75. D. O. H. W. Gilltcspie,- Clerk Superior Court, McDowell County. Upon the back of said execution is the following endorsement, to- wit : Judgment $1,500.00, with interest on the same from the 25th day of March, 1872, till paid, and cost : A. M. Finley, C. C. C, $10 60 D. O. H. W. Gillespie, C. S. C, 8 20 County Tax, 1 00 Atty. A. M. Erwin, 10 00 Shff. A. H. Simmons, 21 00 '• J. E. Robertson, 1 00 Commissioner Thomas Lytle, 6 00 " J. A. Coxey, 6 10 " Noah Souther, 6 00 " J. B. Burgin, 6 00 $74 90 No. 180. , ( Thomas Y. Greenlee against the "Western North Carolina Railroad company Fi Fa. returnable to Fall Term, 1875, McDowell Superior Court; received May 28th 1875. Due search made, nothing found to satisfy this fi fa with; August 24th, 1875. No goods. J. G. Neal, Sheriff. Thereupon an alias execution issued to Buncombe county, return' ftble to Spring Term, 1876, of McDowell Superior Court, which is in the words and figures following, to-wit : State of Noeth Carolina. To the Sheriff of Buncombe county, Greeting: We command you, that of the goods and chattels, lands and tenements of the Western North Carolina Railroad Company, if to be found in your county, you cause to be made the sum of fifteen hundred dollars, with interest on the A]j as execut'n same from the 25th day of March, 1872, till paid and cost, which lately in our Su- t0 Buncombe * countv perior Court, for the county of McDowell, was adjudged to be due Thomas Y. Greenlee, for debt, besides the further sun of seventy-seven dollars and sixteen cents for costs and charges in said suit expended, whereof the said Western North Carolina Railroad company is liable as appears to us Of record. And have" you the said moneys, besides your, fees for this service, before our said Court at Marion, on the 4th Monday in March next, then and there to render to the said Court the debt and the costs aud charges aforesaid. Herein fail nOt and have you then and there this execution. Issued the 6t day of January, 1876. [Seal.]' D. O. H. W. Gillespie, Clerk of the Superior Court of McDowell County I Upon the back of said execution is the following endorsement : to-wit : Judgment $1,500.00, with interest on the same from the 25th day of March, 1$72, . till paid and ; coSt. A. M. Finley, C. C. C, $i0 6fr D. O. H. Wl Gillespie, C. S. C, fr 46 (MO County Tax, 1 00 Atty. A. M. Erwin, 10 00 Shff. A. H. Simmons, 21 00 " J. E. Robertson, ' 1 00 Commissioner Thomas Lytle, 6 00 J. A. Coxey, 6 10 " Noah Souther, 6 00 " J. B. Burgin, 6 00 $77 16 No. 204. Thomas T. Greenlee against the Western North Carolina Railroad company, Fi fa. to Spring Term, 1876, McDowell Superior Court; received January 6th, 1876. J. M. Young, Sheriff. I hereby levy this execution on the franchise, road-bed and right of way, su- Levy by Sher- perstructure and all property attached, and appurtenant to the franchise of the iff of Bunc'e. Western No^h Carolina Railroad company, this January 6th, 1876. J. M. Young, Sheriff. After due advertisement and notice to defendant according to law, I sold at the Court House door in Asheville, Buncombe county at public auction to the cutiou. * highest bidder for cash, on Monday the 7th day of February, 1876, Jthe franchise, road-bed, right of way, superstructure, and all property attached, and appur- tenant to the franchise of the Western North Carolina Railroad company, Thomas D. Carter, being the last and highest bidder, he bidding full amount of the Franchise &c execu tion, and all costs, and agreeing to take his franchise, &c, for the entire sold to T. D. period of its existence, retain my fees and commissions, $50.00, pay into office, $77.16, costs, (see assignee of the plaintiffs,) receipt on file for principal and interest, $1,876.00, this February 7th, 1876. J. M. Young, Sheriff. Received from J. M. Young, Sheriff, eighteen hundred and forty-five dollars in full of principal and interest on this execution, February 7th, 1876. T. D. Carter, Assignee of Judgment. State of North Carolina,) McDowell County. \ I, D. O. H. W. Gillespie, Clerk of the Superior Court for the County of McDowell and State aforesaid, do hereby certify that the foregoing is a true, full and perfect transcript of the proceedings had and done up to the rendition of the judgment, and a full true and perfect transcript of all the proceedings had on said judg- ment, since the rendition of the same, as appears now on record in my office in the case wherein Thomas Y. Greenlee is Plaintiff' and Trustee, and the Western North Carolina Railroad Company is Defendant. In testimony whereof, I have hereunto set my hand and affixed ( H3.) the seal of said Court at office in Marion, this 15th day of October, 1881. [Seal.) D. O. H. W. Gillespie, Clerk Superior Court, McDowell County. Marion, Oct. 5, 1881. I state that I had a judgment against the Western North Carolina Railroad for $1,500, dated in 1S72, taken 'in McDowell Superior Court. Also one judg- ment in same Court in my name as Trustee of Martha M. Greenlee, for $ 700, dated, 25th March, 1S72. I authorized and employed Col. B. S. Gaither, an attorney, to look after my interests and represent me, il necessary, in the case of Sibley et al.. vs. Western North Carolina Railroad, and others, in the U. S. District and Circuit. Court, and he did, by virtue of this authority, have me represented in said suit . T. Y. Greenlee. Witness : W. W. Flemming. N. B. — Sheriff's deed to T. D. Carter does not appear on the registration books. ( I 44) («45) (i 4 6J JOHN RUTHERFORD AGAINST THE WESTERN NORTH CAROLINA RAILROAD COMPANY. State of North Carolina, / Fifth Monday after the fourth Monday in McDowell County.) June. i860. Being the 30th day of July insaid year. Be it known that a Court of Pleas and Quarter Sessions was opened and held for the county aforesaid, at the Court House in Marion ; present and pre- siding, the Worshipful Justices, to-wit : John- S. Brown, Chairman. Swan P. Burnett, Tuos. J. Halyburton. At which said said Term the following- proceeding's were had and done : At said Term a petition was returned into Couvt in the following Petition. words and figures : State of North Carotin a ; ) Court of Pleas and Quarter Ses- McDowell County.) sions, Summer Term, 1S60. To the Worshipful Justices of the Court of Pleas and Quarter Ses- sions for McDowell County, and State of North Carolina : The petition of John Rutherford against the Western North Car- olina Railroad Company, Defendant : Tour petitioner humbly complaining, showeth unto your Wor- ships, that he is seized and possessed of a tract or parcel of land lying and being in said county of McDowell, on the waters of Shad- rack's Creek, and that the Western North Carolina Railroad Compa- ny is authorized by the Charter to locate and establish a Railroad from Salisbury to the French Broad River, and that said Company has so located and surveyed the track of said Road as to pass through and over the aforesaid tract or parcel of land belonging to your pe- titioner. Your petitioner complains that the track of said road, as surveyed and located by the officers of the Company, will have a long distance through said lands, and will render utterly useless and valueless, a very considerable portion of fertile bottom and other lands, which have heretofore been very productive and valuable, and in other respects will greatly interfere with the conveniences of ( H7 ) said farm. Your petitioner thus believing that he is to be damaged and injured by the construction of said road, as located, and being desirous of having said damages assessed to him, in the mode and manner prescribed by the Charter of said Company, therefore prays Yuur Worships to appoint a board of commission of valuation, as required in such cases by the Charter, to assess the damages which your petitioner may sustain by reason of the location of said rail- road, and that they be required to make their report to this Court, and to the end that the said Western N. C. llailroad Company may be made a party in this petition, may it please Your Worships to order a copy of this petition, together with a subpoena, to issue to the President and Directors of said Company, and that the same be served upon Robert C. Pearson, President of said Company, com- manding them or such of them as may be needful to appear at the next Term of this Court, and answer this petition, &c. ; and may it please Your Worships to grant your petitioner such other and fur- ther relief as the premises may require, or wid justify, and as in duty buund, your petitioner will ever pray. (Signed,) Tob R. Caldwell, Att'y for Petitioner. And thereupon the following order was made: John Rutherford Petition. Western North Carolina Railroad Company. Ordered that process issue as praj^ed for. And thereupon the cause is continued to the next Term of the Court, to wit : On the 5fch Monday after the 4th Monday in Sep tember, 1860. At which last mentioned Term, at the Court House „ ' Order of pro in Marion, before B. F. Bynum, Chairman, Elijah Morgan and cess - James Finley, Worshipfuls of said Court, the parties aforesaid, by their attorneys aforesaid, come ; at which said Term the following was returned into Court : State of North Carolina ; To the Sheriff of Burke County,— Greeting : You are hereby commanded' to summon Robert C. Pearson, President of the Western North Carolina Railroad Company, personally to be and appear be- g U K DOe u a fore the Justices of our Court of Pleas and Quarter Sessions at the nest Court to be held for our said county of McDowell at the Court-house in Marion on (i 4 S) the 5th Monday after the 4th Monday in September next ; then and there to answer the petition of John Rutherford now filed in said court, a copy of which accompanies this subpoena which you will deliver to the said R. C. Pearson f and return this subpoena, and this you shall in no wise omit under the penalty of the law. Witness : Alfred M. Finley, Clerk of our said court, at office, the 5th Monday after the 4th Monday in June, i860, and in the 85th year of our Independence. Issued 31st of August, i860. [Seal.] (Signed.) A. M. Finley, Clerk. And upon the back of the foregoing is the following endorsement' to wit : John Rutherford vs. Western N. C. Railroad Company, subpoena to McDowell county court, fall term, 1860. Process execu- Executed by delivering a copy of the petition to R. C. Pearson, a director of the Western N. C. Railroad, this 6th day of Sept., 1860. (Signed.) B. A. Berry, Sheriff, And thereupon the cause was regularlv continued from term to Cause reraov d L to sup'r ct. term (without any action had thereon,) up to summer term 1868, when by an act of the Legislature the cause was transferred from the lace county court of McDowell county to the Superior court of Mc- Dowell county. State of North Carolina, ) The 10th Monday after the 3d Monday in McDowell County. f Sept., being the 30th of Nov.jn said year. Be it remembered that a Superior court of law is triis day opened and held in and for the county of McDowell, at the Court House in Marion. Present and presiding and holding said court, the Hon. Anderson Mitchell, Judge of said court. The said cause being returned unto court as aforesaid, was placed upon the civil issue docket and there stands thus : John Rutherford, J (T. R. C.) vs. > Petition. The Western N. Carolina Railroad Company. ) The parties aforesaid by their attorneys aforesaid come. And thereupon the cause is continued to the next term of the Court, to-wit : on the 2nd Monday after the 3rd Monday in April, 1869. At which last mentioned term at the Court House in Marion be- fore the Honorable J. L. Henry, Judge of said Court, the parties aforesaid by their attorneys aforesaid come, and thereupon the cause is continued to the next term of the Court, to-wit, on the 2nd Monday after the 3rd Monday in September, 1S69, at which < ( H9) last mentioned term at the Court House in Marion before the Hon- rr ble R. H Cannon, Judge of said Court, the parties aforesaid by their attorneys aforesaid come, and the cause is continued to the next term of the Court, to-wit, on the 2nd Monday after the 3rd Monday in April, 1870, at which last mentioned term at the Court House in Marion before the Honorable J. L. Henry, Judge of said Court, the parties aforesaid by their attorneys aforesaid come, when the following order was made : John Rutherford, ~) Against > Petition. Western North Carolina Railroad Company. ) It is ordered by the Court with the consent of the parties tha Swan P. Burnett, Thomas Hemphill, Allen Conley, Joseph W. cause referred Hunter and Hugh A. Tate, be appointed commissioners to assess t0 Com ' rs - damages sustained by the petitioner, and report to the next term of this Court, and thereupon the cause is continued to the next term of the Court, to-wit, on the 2nd Monday after the 3rd Mon- day, in September, 1870, at which last mentioned term at the Court House in Marion before the Honorable J. M. Cloud, Judge of said Court, the following report was returned into Court, which is in the words and figures, to-wit : State of North Carolina,) „^ f „,„u„„ i KfV , 10™ McDowell CountyJ Se P tember 15th > 18 ™- We, the undersigned commissioners, appointed by the Superior Court of Mc- Dowell county, Spring Term, 1870, to assess the damages that John Rutherford y ^rs r * ° f has sustained by the Western North Carolina Railroad company, have met on the lands, and after due examination, find him damaged to the amount of fifteen hundred dollars above enhancesments, Respectfully submitted, (Signed) J. W. Hunter, (Signed) Thos. Hemphill, (Signed) H. A. Tate, (Signed) Allen Conley, (Signed) S. P. Burnett. Sworn before me 5th October, 1870, as to Burnett, Hunter and Conley. D. O. H. W. Gillespie, C. S. C. And thereupon, the following proceedings were done, to-wit : John Rutherford, ~) Against V Petition for Damages. The Western North Carolina Railroad Company. J Report of the commissioners filed, and on motion of plaintiff's Armed C ° n " counsel confirmed. Whrreupon, it is ordered by the Court that plaintiff do recover of the defendant the sum of fifteen hundred dollars, and the costs to be taxed by the Clerk, and that he have judgment and execu- tion thereof. The commissioners are allowed by the Court five dollars per day each to be paid equally by the plaintiff and defendant. They are to make out and file their account with the Clerk of the Court of the number of days they were each engaged in viewing the premises. Judgments Separated. John Rutherford, ") Against [■ The. Western North Carolina Raih'oad Company. J Judgment $1, 500.00, with interest on the same from the 3rd day of October, 1870, till paid and costs. D. O. H: W. Gillespie, C. S. C, $ 9 83 A. M. Finley, C. C. C, 9 35 County Tax, 1 00 Atty. T. R. Caldwell, 10 00 Shfl. B. A. Berry, 60 " A. H. Simmons, 5 15 |33 03 And thereupon execution issued returnable to Spring Term, 1S71, in the following words and figures, to- wit : State of North Carolina ; To the Sheriff of Iredell County, — Greeting : You are hereby commanded that of the goods and chattels, lands and tene- ments of the Western North Carolina Railroad company, if to be found in your county, you cause to be made the sum of fifteen hundred dollars, with ^interest on the same from the 3rd day of October, 1870, till paid and costs, which was lately Execution to in our Superior Court, held for McDowell county, at the Court House in Mar- ion, adjudged to be due John Rutherford for debt, besides the further sum of thirty-three dollars and three cents ($33.03) for costs and charges in said suit expended, whereof the said Western North Carolina Railroad company is liable as appears to us of record. And have you the said moneys, besides your fees for this service, before our said Court at Marion aforesaid, on the 2nd Mon- day after the 3rd Monday in April next, then aud there to render to the said Court the debt and the costs and charges aforesaid. Herein fail not and have you then and there this execution. Witness D. O. H. W. Gillespie, Clerk of our said Court, at office, the 2nd Monday after the 3rd Monday of September, 1870. Iredell co. ( '50 Issued 3rd January, 1871. D. O. H. W. Gillespie, Clerk of the Superior Court of McDowell County. And upon the back of the foregoing execution is the following endorsements, to wit : No. 64, John Rutherford against the Western North Carolina Railroad com- pany, Fi fa, returnable to Spring Term, 1871, McDowell Superior Court. Judgment $1,500.00, with interest on the same from the 3rd day of October, 1870, till paid and costs. A. M. Finley, C. C. C, $ 9 35 D. O. H. W. Gillespie, C. S. C, 6 93 County Tax. 1 00 , Attorney, T. R. Caldwell, 10 00 Sheriff B. A. Berry,' 60 " A. H. Simmons, 5 15 $33.03 To hand January 10th 1871 . (Signed.) W. F. Wosson, Sheriff. No goods, chattels, lands nor tenements to be found outside of mortgage to No goods, satisfy this fi fa. . (Signed.) W. F. Wosson, Sheriff. Received six dollars and ninety-three cents on this bill of costs, my fee which is to run to the use of John Rutherford, this the 23rd January, 1871. D. O. H. W. Gillespie, C. S. C. John Rutherford, "1 J. W. Hunter, £ $5 05 Against I Thomas Hemphill, i 5 05 The Western North Carolina Rail { H. A. Tate, ^ 5 05 Road Company. f Allen Conley, i 2 56 ! S P. Burnett, i 2 90 J D. O. W. Gillespie, C. S. C, | 1 58 And thereupon execution issued upon the foregoing bill of costs — in the following words and figures, to wit : State of North Carolina ; To the Sheriff of Rowan County, — Greeting : You are hereby commanded, that of the goods and chattels, lands and tene- ments of the Western North Carolina Railroad company, if to be found in your Josts. county, you cause to be made the sum of ($22 08) twenty-two dollars and eight cents, which was lately in our Superior Court, held for McDowell county, at the Court House in Marion, adjudged to be due John Rutherford for costs and charges in said suit expended, whereof the said Western North Carolina Rail- road company is liable as appears to us of record. And have you the said moneys, besides your fees for this service before our said Court at Marion afore- said on the 2nd Monday after the 3rd Monday in April next, then and there to render to the said Court the costs and charges aforesaid. Herein fail not, and have you then and there this sxecution. (^52) Witness D, O. H. W. Gillespie, Clerk of our said Court, at office, the 2nc Monday after the 3rd Monday of September, 1870. Issued 13th of January, 1871. \ D. O. H. W.Gillepise, Clerk of the Superior Court of McDowell county. And upon the back of the foregoing execution is the following endorsonment, to wit : No. 65, John Rutherford against the Western North Carolina Railroad com- pany, Fi Fa. returnable to Spring Term, 1871, ALcDowell Superior Court. Com'r J. W. Hunter,, >£, 5 05 " Thos. Hemphill, %, 5 05 " H. A. Tate, Y±, 5 05 " L. P. Burnett, %\ 2 90 " D. C. H. W. Gillespie, C. S. C. 1 48 $ 22 08 No goods or chattels, land or tenements, outside of levies, to be found in my county to satisfy this execution. 1,0 8° ods - W. W. Walten, Sheriff. Gom,r J. W. Hunter, %, 5 05 " Thomas Hemphill, ^. 5 05 The Western N. Carolina") " H. A. Tate, £, 5 05 Railroad Company, f " Allen Conly. £, 2 55 against [ " L. P. Burnett,, £ 2 90 John Rutherford. J " D. O. H. W. Gillespie, C. S. C, 1 48 $ 22 08 Received of John Rutherford (22.08) twenty two dollars and eight cents in full of this bill of costs, this the 23d day of 6anuary, 1871. (Signed.) D. O. H. W. Gillespie, C. S. C. No, 64 Judgment carried to Fall Term 1871, and there stands thus: John Rutherford, ) Judgment $1500.00, with interest Against V on the same from the 3d of Oct. W. N. C. Railroad Company. ) 1870, until paid and cost A. M. Finley, $9.35 ; D. O. H. W. Gillespie, $7.51 ; County Tax, $1 ; At- torney T. R. Caldwell, $10.00 ; Sheriff B. A. Berry, 60 ; A. H. Simmons, $5- I 5- And thereupon execution issued upon the foregoing judgment, returnable to Fall Term, 1871, which is in the following words and figures : t (153) State of North Carolina ; To the Sheriff of McDowell County, — Greeting : We command you, that of the goods and chattels, lands and tenements, of the Western North Carolina Railroad Company, if to be found in your county, you cause to be made the sum ot fifteen hundred dollars, and interest on the Execution to same from the 3d of October, 1870, till paid, and costs, which lately, in our McU0We 1- Superior Court, for the county of McDowell, was adjudged to be due John Rutherford for debt, besides the further sum of thirty -three dollars and sixty-one cents for cost and charges in said suit expended, whereof the said Western N. C. Railroad Company is liable, as appears to us of record. And have you the said moneys, besides your fees for this service, before our said Court at Marion, on the 2d Monday after the 3d Monday in September next, then and there to render to the said Court the debt, and the costs and charges, aforesaid. Here- in fail not ,and have you then and there this execution. Issued the 17th day of June, 1S71. D. O. H. W. Gillespie, Clerk Superior Court, McDowell County. Upon the b.ick of the foregoing execution is the following endorse- ment : Judgment $1,500.00, with interest on the same from the 3d day of Oct., 1870, tiil paid, and costs. A. M. Fin'ey, C. C. C, $9.35; D. O. H. W. Gillespie, C. S. C, $7.51 ; County Tax. $1.00; Attorney T. R. Caldwell, $10.00; Sheriff B. A. Berry 60 cts. ; Sheriff A. H. Simmons, $5.15. To hand July 1st, 1871. (Signed,) A. H. Simmons, Sh'ff. Levied this Fi fa. on the Morganton train, consisting of .one R. R. engine, two coaches and one box car, to satisfy several judgments issued at McDowell Superior Court, now in my hands for collection. Sept. I2th, 1871. Lev'd on Mor- (Signed,) A. H. Simmons, Sh'ff. gantou train. Judgment No. 65 brought on au I stanls thus : (89.) Com'r J. W. Hunter, }.i, 5 05 " Ti.ijmas H-mphill, 5. 5 05 John Rutherford. ) " H. A. Tate. A, 5 05 against I " Allen Conly. ^, 2 55 The Western N. Carolina j " S. P. Burnett", £ 2 90 Railroad Company, J " D. O. H. W. Gillespie, C. S. C, 2 06 $ 22 66 And thereupon execution issued upon the foregoing judgment, returnable to Fall Term, 1871, in the following words and figures : t? »■ . We command you, that of the goods and chattels. lands arid tenements:, of >jifc ration to , . McD.>we'i. the Western North Carolina Railroad Company, if to be found in your countv, you cause to be made the sum of twenty-two dollars and 65 cents, which lately in our Superior Court, for the county of McDowell, was adjudged to be due John Rutherford for cost and charges in said suit expended ; whereof, the s-aid Western N. C. Railroad Company is liable, as appears to us of record. And have you the said moneys, besides your fees for this service, before our said Court at Marion, on the 2d Monday after the 3d Monday in September next, then and there to render to the said Court, the costs and charges- afore- said. Herein fail not, and have you then and there this execution. Issued the 17th day of June, 1.S71. D. O. H. W. Gillespie, Clerk of the Superior Court of McDowell County. Upon the back of the foregoing execution is the following endorse- . ment: (No. 89.) John Rutherford against the Western N. C. Rail- road Company, Fi fa. Returnable to Fall Term, 1871, McDowell Superior Court. Com'r J. W. Hunter, J, $5.05 ; Thomas Hemphill, |, $5.05 ; Hugh A. Tate, I, $5.05 ; Allen Conley, |, $2.55 ; S. P. Burnett, g, $2.90 ; D. O. H. W. Gilles- pie, C. S. C, $2.06. To hand July 1st, 1871. (Signed,) A. II. Simmons, Sheriff. Lew this Fi fa. on the Morganton train, consisting of one Railroad engine, JjGvv on ATor- J saiiton train, two coaches and one box car, to satisfy this judgment, issued at McDowell Superior Court, now in my hands for collection. Sept. 12th, 1S71, (Signed,) A, H. Simmons. Sheriff. Judgments carried on as before and stand thus r John Kuthekfokd, 1 Judgment f 1,500. 00, with interest Against } on the same from the 3rd day of Western North Carolina Railroad Company, j October, 1870, till paid and costs. A M. Finley, C. C. C, $ 9 35 D. O. H. W. Gillespie, C. S. 0., 8 31 County Tax, 1 00 Att'y T. R, Caldwell, 10 00 Sheriff B. A. Berry, 60 " A, H. Simmons, 5 15 $34.41 Received of A. M. Erwin, Attorney, five hundred dollars on this judgment and costs, March 5th, 1872. D. O. H. W. Gillespie, C. S. C. See John Rutherford's receipt filed in my private papers, witnessed by Major M alone and Dr. Worley, four hundred and twenty dollars and thirty-three cents. D. O. H. W. Gillespie, C. S. C. (*55) Judgment for cost again stated. ] Com. J. W. Hunter, i $5 05 John Rutherford, I " Thomas Hemphill, i 5 05 Western North Carolina Kail < " Hugh A. Tate, £ 5 05 Road Comvany, j " Allen Conley, £ 2 55 j " S. P. Burnett, i 2 90 J " D. O. H. W. Gillespie, CSC, 2 80 D. O. H. W. Gillespie. C 8 O, ) $ 93 to use of Johu Rutherford. > $30.39 And an alias execution issued upon said judgment or the large judgment returnable to Fall Term, 1073, which is in the following words and figures, to wit : State of North.Cakolina, To the Sheriff of McDowell County, — Greeting : We command you, that of the goods and chattels, lands and tenements, ot the Western North Carolina Railroad Company, if to be found in your county, . ,. J - Alms execu.t n you cause to be made the sum of $1,500 00. (fifteen hundred dollars, ) with inter- to McDowell est on the same from the 3rd day of October, 1S70, till paid, and cost, (observe the credit on the back of this fi fa,) which, lately in our Superior Court for the County of McDowell, was adjudged to be due John Rutherford, for debt, besides the further sum of one dollar and fifteen cents, for costs and charges in said suit expended ; whereof, the said Western North Carolina Railroad Company is liable, as appears to us of record. And, have you the said moneys, besides your fees for this service, before bur said Court at Marion, on the 4th Monday in August next, then and there to render to the said Court the debt and costs and charges aforesaid. Herein fail not, and have you then and there this execution. Issued the iSth day of April, 1S73. (Signed.) D. O. H. W. Gillespie, Clerk of the Superior Gourt of McDowell County. And upon the back of the foregoing execution is the following endorsement, to-wit : No. 28, John Rutherford against the Western North Carolina Railroad com- pany. Fi Fa returnable to Fall Term, 1873, McDowell Superior Court. Judgment .$1,500.00, with interest on the same from the 3rd day of October, 1870, till paid and cost. Credit on the above judgment $427.33, March the 5th 1871. D. O. H. W. Gillespie, C. S. C, $1 15 Received April 18th, 1873. (Signed.) J. G. Neal, Sheriff. I have this day levied upon the Western North Carolina Railroad, bed, iron a id fixtures, and on two depots, one located at Marion, and the oilier at O'd Levy on road Fort, and upon the franchise of said company to establish and to run a railrcad £ C "' tral:c 1 ' from Salisbury to the Tennessee line, and upon all the rights and privileges granted to the said railroad company, by their charter, and the several amend- ments thereto, April 18th, 1873. (Signed.) J. G. Neal, Sheriff. And upon all the lands and tenements, tracks, depots from Salisbury to French Broad River, goods and chattels, rolling stock and the franchise, and ail the immunties and privileges of said corporation, April 18th, 1873. (Signed.) J. G. Neal, Sheriff. Having levied this execution on the 18th day of April, 1873, on the lands and tenements, goods and chattels, and the franchise with all the rights and privil- eges thereof, so far as relates to the receiving of fares and tolls of the Western North Carolina Railroad company in McDowell county, and from Salisbury to the French Broad R.ver, and having advertised according to law, I sold said lands and tenements, goods and chattels, and franchise with the rights and privileges thereof, from Salisbury to the French Broad River, when Samuel McD. Tate became the last and highest bidder at the sum of thirteen hundred and twenty five dollars and twenty-one cents ($1,325.21.) I first sold the lands, Return of sale railroad, road-bed and depots, situated in McDowell county, when Samuel McD. to 8. McD. rp t became the last and highest bidder at the sum of one hundred and fifteen l ate. dollars ($115). I then sold the lands, railroad, road-bed, depots, fixtures, roll- ing stock and other corporate property, real and personal, belonging to said company, from Salisbury to the French Br ad River, when Samuel McD. Tate became the purchaser at twenty-five dollars ($25). I then offered the franchise and all the rights, and privileges thereof, so far as relates to the fares and tolls to the person who will satisfy the whole debt of this execution, and all costs thereon, or who shall agree to take the franchise for the shot test period of time, to receive during that time all such fares and tolls as the said corporation would by law be entitled to demand, when Samuel McD. Tate bid the whole amount of said execution and costs, and agreed to take such franchise for the term of eighty years next ensuing, who is declared by me to be the only and highest bidder. Said Samuel McD. Tate filed plaintiff's receipt for twelve hundred and eighty-nine dollars and sixty -nine cents (#1,289.69), the amount of debt and in- terest, and also jaid n e tluity-five dollars and fifty-two cents ($35.52), the whole amount of cost due thereon, retained my fee and coin's, thirty- four dollars and thirty-Seven cents, pay into office one dollar and fifteen cents. This May 31st day, 1873. (Signed.) J. G. Nkal, Sheriff (See this endorsement on Fi Fa.) Received of Sam'l McD. Tate, twelve hundred and eighty-nine dollars and Eecei't of .Ino. sixtv-nine cents, in lull of this execution and costs. 31st Mav, 1S73. Rutherford. .,,. , , T _ (Signed.) Johx Rutherford, By B. S. Gaither. Att'y for Plaintiff. Received on this Fi fa , thirty -five dollars and fifty cents. Retained mv fee and commission, thirty-four dollars and thirty-five cents, paid into office one dollar and fifteen cents. This May 31st, 1873. (Signed,) J. G. Neal, Sh'ff. Statr of North Carolina,^ McDowell County. j I, D. O. H. W. Gillespie, Clerk of the Superior Court for the County of McDowell and State aforesaid, do hereby certify that ( *57 ) the foregoing is a true, full and perfect transcript of the proceedings had and done up to the rendition of the judgment, and a full, true and perfect transcript of all the proceedings had on said judg- ment, since the rendition of the same, as appears now on record in my office wherein John Rutherford is Plaintiff, and the Western North Carolina Railroad Company is Defendant. Given under my hand and seal at office, this 15th day of Octo- ber, 1S81. [Seal.) D. O. H. W. Gillespie, Clerk Superior Court, McDowell County. N. B. — Deed to Tate not inserted, as his title is in friendly hands A. B. Chambers, ) Executions to Spring vs. v Term, 1871. V W. N. C. R. R. Co. ) Judgment 29th August, 1870. Damage, $1,344.00. Costs, $35.68. Issued 7th Oct., 1870. A lias for eost, 5th Oct., 1870. Also for $170.00. The within execution is enjoined. W. F. Wosson, Sh'ff. The Plaintiff has assigned one hundred and seventy dollars of this judgment to W. P. Caldwell, for which execution has issued for $170.00, and the costs of this action satisfied. Retained my fees, and paid to W. P. Caldwell, debt, in- terest and costs. W. F. Wosson, Sh'ff. Received debt, $181.28, for above. W. P. Caldwell. Received cost of this action, from W. P. Caldwell. C. S. Summers, C. S. C. (i55) .} Summons. Complaint. State of North Carolina, County of Burke Be it remembered that on the 22d day of Janu try, 1878, the West- ern North Carolina R R. Co., Eastern Division, sued our, of the Su- perior Court of Burke county, a writ in these words : State of North Carolina ; To the Sheriff of Rowan County, — Greeting : You are hereby commanded to summon R. M. Walker, the Defendant above named, if he be found within your county, to be and appear before the Judge of our Superior Court, at a Court to be hsld for the county of Burke at the Court House in Morganton, on the 2d Monday in March, 1878, and an- swer the complaint which will be deposited in the office of the Clerk of the Su- perior Court for said County, within the first three days of said Term, and let the said Defendant take notice, that if he fail to answer the said complaint within that time, the Plaintiff will apply to the Court for the relief demanded in the complaint. Herein fail not, and of this summons make due return. Given under my hand and seal of said Court, this 22d day of January, 1S78. [Seal,] D. C. Pearson. Clerk Superior Court Burke Countv. Prosecution bond filed. And said summons was duly returned endorsed. After due search the Defendant, R. M. Walker county. January 26, 1878. is not to be found in my C. F. Waggoner, Sheriff Rowan County. And thereupon Plaintiff filed the fallowing complaint : The Plaintiff complaining, alleges : 1. That the Western North Carolina Railroad Company was duly organ- ized on the 31st day of August, 1855, under the act of the General Assembly of North Carolina, ratified on the 15th day of February, 1855, incorporating said Company, for the purpose of constructing a Railroad to effect a communica- tion between the North Carolina Railroad and the Valley of the Mississippi, and to authorize the said corporate Company, under the name and style of the Western North Carolina Railroad Company, when formed in compliance with the provisions of said charter, to exist and continue as a body politic for the term of ninety-nine years. 2. That under the provisions of the said act of incorporation, and other acts of the General Assembly, amendatory of the said original charter, the said Company did locate a Railwaj' from the town of Salisbury, on the North Car- olina Railroad, to the French Broad River beyond the Blue Ridge, in the coun- ty of Buncombe, and from the French Broad River to the Tennessee line in the direction of Ducktown, on the Georgia line, and likewise from the same point, (i59) on the French Broad River, down the said River to the Tennessee line at Paint Rock. 3. That under the said acts of the General Assembly, the said Company has constructed a Railroad from Salisbury, via Statesville, Newton, Hickory, Mor- ganton and Marion, to the Blue Ridge, and has the same in full operation. 4. That on the 19th day of August, 1S68, the General Assembly passed an act entitled, "An Act to amend the charter of the Western North Carolina Rail- road Company ;" "that the Western North Carolina Railroad shall consist of two separate and distinct divisions, one called the Eastern Division, and shall embrace the said Road from Salisbury to French Broad River, near Asheville and the other, called the Western Division, which shall embrace the said Road from the French Broad River to Ducktown and Paint Rock, on the Tennessee line. And the property, appropriations and subscription of stock, heretofore made bv the State and private stockholders for the Eastern Division of said Road, shall be used only for the purpose of the completion and operation of said Eastern Division of said Road, and shall be managed, controlled and di- rected by a Board of Directors, as now provided by law. And that the West- ern Division of said Road shall be managed, constructed and controlled by a Board of Directors, separate and distinct from the Board of Directors of the Eastern Division. And that the said amendment of the charter was duly ac- cepted by the State and the private stockholders of the said Company. 5. That on the 19th of December, 1866, the General Assembly passed an act to'enhance the value of the bonds to be issued for the completion of the Western North Carolina Railroad, in which it is declared that the President and Directors of the Western North Carolina Railroad Company be authorized aid empowered to issue bonds of the Company, and running for such term of years as they may deem expedient, and bearing interest at rate not greater than eight per cent per annum, and to make, execute and deliver a deed or deeds, of mortgage, conveying a whole or portion of the rights, titles and interests of the Company, in any or all the estate, both real and personal, belonging to said Company, or in anj' manner pertaining to the same, to the purchaser or pur- chasers of said bonds of the Company, and conditioned for the payment of said bonds at maturity, and also to pledge the profits of said Company, or so much thereof as may be necessary for the payment of the interest on said bonds as it fa' Is due. 6. That the said last amendment to their charter, the said company on the 21st February, 1867, m full meeting of the stockholders, did ratify, and duly accept and adopt said act as an amendment to the charter of said company. 7. That on the 8th day of January, 1870, the President and Directors of the Western North Carolina Railroad company of the Eastern Divison for the pur- pose, and with the intent to complete said railroad to its western terminus at Asheville, did resolve to issue fourteen hundred thousand dollars of coupon bonds of said company under the authority of the said amended charter, the bonds to bear eight per cent, interest, payable every six months, and to run for twenty years, and to be secured by mortgage or deed of trust on all the road, (i6o) road-bed, charter, iron, cars, engines, depots, rights of way, franchises, rights, credits, and all property, real and personal, belonging to said railroad company, including all the said railroad running as well as that graded and being grad- ed, including the entire line from Salisbury to Asheville, and all the property, real and personal of said company, conditioned for the payment of the said bonds at their maturity, and pledging the profits arising from the road for the pa3 r ment of the interest from time to time as it falls due. That on the 1st day of March, 1870, the said company did issue their coupon bonds amounting to the said sum of fourteen hundred thousand dollars, in one thousand dollar bonds each, and did secure the payment thereof, by executing and delivering a deed of mortgage or trust to Tod R. Caldwell, and Henry Clews for all the road, road-bed, charter, iron, cars, engines, depots, rights of way, franchise aad otlier prop3rty as hereinbefore set forth on that day, 1st, March, 1870. ' 8. That the said mortgage was duly recorded and registered, and the said railroad company put their said bonds so secured upon the market, and sold a number of them to innocent purchasers for a valuable consideration. 9. That afterward a large number of the said bonds came into the hands of one Hiram Sibly, and the said company failing to pay the sa.ne, and thereby caused a breach of the covenant of their said mortgage deed to the said Cald- well and Clews. The said Sibly and others filed their bill in Equity in the Cir- cuit Court of the United States, for the State of North Carolina, at Greensboro, against the said Western North Carolina Railroad company for the eastern divi- sion, and the said Tod R. Caldwell and Henry Clews, and others, demanding an account of the indebtedness of the said company to the plaintiff by reason of their said bonds, and a foreclosure of the said mortgage to the said Caldwell and Clews. 10. That the said Sibly and others afterward in the said Court did obtain a judgment against the Western North Carolina Railroad company for a large sum upon their said bonds, and the said Court did order, adjudge, and decree that all the property of the said company conveyed in said mortgage deed be sold by their commissioners appointed by said Court to the highest bidder for cash, and the said commissioners in pursuance, and in obedience to the said decree on the day of at the towu of Salisbury, did sell all the property of the said railroad company, contained in the said mortgages or trust deed, when and where, which, Curtis H. Brogden, Governor of the State of North Carolina, Robert F. Armfield, President of the Senate, and James L. Robinson, Speaker of the House of Representatives, commissioners, on the part of the State, were the last and highest bidders, at the price of eight hundred and twenty-five thousand dollars, and were declared by the said commissioners to be the purchasers of the property, and were so reported by the said commis- sioners to the said Circuit Court of the United States, at Greensboro, in the wes- tern district of North Carolina. 11. That the said Circuit C -urt of the United States did confirm the sale as reported by the said commissioners, and order the said commissioners on the payment of the purchase money, to convey the property to the State, that the ( i61 ) purchase money was paid, and the conveyance made in pursuance to the order \jf said Court by the said commissioners. 12. That the purchase of the said road was made under the Act of the Gen- eral Assembly, ratified 13th March, 1875, which authorized the Governor, Arm- field and Robinson to purchase the same, and to make the payment of the pur- chase money, and empowered the Governor of the State, by and with the advice a"nd counsel of the Senate, to appoint three commissioners to manage said road and its affairs during the pleasure of the General Assembly. 13. That the Governor did appoint the said commissioners who took charge of the road, and its affairs, and managed the same. 14. That on the 19th day of February, 1877, the General Assembly passed another act, entitled "an act to porvide for the speedy competition of the Wes- tern North Carolina Railroad, and to amend an act, entitled '"an act in relation to the Western North Carolina Railroad, ratified 13th March, 1875, and did enact that the Western North Carolina Railroad company created by virtue of an act, ratified the 13 March, 1875, shall be deemed, and held to be a corporation, and to have all the franchise, powers, rights and advantages, confirmed by the act, entitled "an Act to incorporate the Western North Carolina Railroad company, ratified 15 February, 1855, and all the acts amendatory thereof, except as the same may be modified, abridged, enlarged or repealed by this act, and the act of which it is amendatory, aid that this act, and that which it is amendatory, shall not be so construed as to create any liability of the present company for or on account of any debt of any kind nor a continua ion of the said debt, "the Wes- tern North Carolina Railroad Company " 15. That the said corporation has been regularly organized under the said act of the 19 February, 1877, with a President and Board of Directors as provide for in said act. 16. The effects of the sale of all the property, and effects, and the franchise of the late Western North Carolina Railroad company under the decree of the Circuit Court of the United States, and conveyance of the same to the State of North Carolina, is to dissolve the former corporation known as the Western North Carolina Railroad, and to deprive said corporation of all its franchises. and privileges, and to vest all its property and franchise in tne State of North Carolina, and the effect of the act of February 17th, 1877, and the organization under its provision is to create a new corporation, separate and distinct from the old corporation, and in no way connected with it or liable for any of its liabil- ities. 17. That the defendant^. R. M. Walker, at the Spring Term, 1871, of Rowan Superior Court, obtained payment for $3987, or thereabouts, against the old corporature, known as the Western North Carolina Railroad company, Eastern Division, and has recently caused an execution to issue on the same directed to the Sheriff of Buncombe county, and placed the same in the hands of Levi Plemons, Sheriff of said cou*nty, who has levied upon road-bed, right of way, depots, superstruction, equipments, franchise, and all property attached and appurtenant to the franchise of the Western North Carolina Railroad, the pro- ( i6» ) perty of the plaintiff, to pay and satisfy the said debt due from the late com- pany of that' name, and has advertised the same for sale on the 4th day of Feb- ruary, 1878, at Asheville. 18. That the plaintiff has issued a writ of summons against the defendant, R. M. Walker, returnable to the next term of Burke county Court, commencing on the 2nd Monday in March. 1878, in which this is the plaintiff's complaint to be filed in said action, and plaintiff demands judgment: rrny'rforjudg- ^ That this Court declare the rights of the parties that the plaintiffs area new corporation, separate and distinct from the old corporation, known as the ' Western North Carolina Railroad Company, Eastern Division, and that the pres- ent corporation, the plaimiffs, are not liable for the defendant's debt, created by the former corporation with him. ■* 2. That the plaintiffs derive their title to the said railroad, property, and franchise and appurtenance through the mortgages of said company, decree 1 of said Circuit Court of the United States, sale and conveyance to the State of Nprth Carolina, and from the State to the plaintiff, by the act of incorporation, and that defendant's debt not being in judgment, so as to create a lien before the 1st day of March, 1870, wbdi the lien of the said mortgage attached, that the lein of the mortgage has priority, and that no property included in the mortgage, and sold under the decree of said Court, and conveyance to the plaintiff or to those under whom the claim is liable to be sold under the defend- ant's judgment t'nd execution. 3. That the defendant be enjoined and restrained from selling any of the property of the present corporation in satisfaction of his debt, that the sale of the property would be an act which tends to the injury of the plaintiff, and cast a cloud upon his title, and thereby does serious and permanent injury to the plaintiff by destroying or injuring the markvtable value of their property, and prevent a multiplicity of suits, and prevent litigation, that the Court grant a re- straining order to the Sheriff restraining the defendant from selling or proceeding further in the premises until the hearing of this action or until further orders by this Court, and grant such other and further relief as the premises require or would justify. B. S. Gaithek. Attorney for Defendant. State of North Carolina, > Burke County./ The plaintiff the Western North Carolina Railroad Company by its President, Verification. James W. Wilson, maketh oath that the matters of fact set forth in the fore- going complaint as of his own knowledge are true, and those not of his own knowledge he believesjto be true. James W. Wilson, President W. N. C. R. P.. Sworn to and subscribed before me this the 23rd January, 1878. D. C. Pearson, Clerk of Burke Superior Court. And thereupon the following order was made at Chambers : ( "63 ) Supeeior Court, "1 11th District of Burke county. North Carolina, I The Western North Carolina Railroad Company, I ^ Chambers (Eastern Division,) Plaintiff, f Against I Rostraini'g or- R. M. Walker, Defendant. .J 26th January, 1878. der. In the above entitled cause it appears to the Court as follows : That the plaintiff is entitled to injunctive relief, and on his filing bond in the sum of two hundred dollars, It is thereto e ordered : 1. That notice issue to the defendant to appear at the next term of Burke Superior Court, and show cause (if any he have) why the prayer of the petition should not be granted, and that in the meantime he and all other persons be re- strained from further proceedings under the judgment and execution set forth in said complaint The Clerk of said Burke Superior Court will issue notice, copies, &c, and tax costs to await the further order of the said Superior Court. J. L. Henry, Judge. And in obedience to the foregoing order the plaintiff filed the following bond : State of North Carolina, ) Superior Court. Burke County, i The Western North Carolina Railroad Company,! against ',- R. M. Walker. • ) We, the Western North Carolina Railroad Company, principal, and James W. Wilson, security, are held and firmly bound unto the Defendant, R. M. Walker, in the above entitled action, in the sura of two hundred dollars, to which payment, well and truly to be made, jointly and firmly by these pres- ents. Given under our hands and seals, this 29th January, 1878. The condition of the above obligation is such that, whereas, the Western North Carolina Railroad Company has brought an action in the Sup'r Court of Burke county, against the Defendant, R. M. Walker, returnable to the next Term of said Court, on the 2nd Monday in March next ; and whereas, on the application of the Plaintiff to the Honorable James L. Henry, Judge of this Ju- dicial District, to enjoin and restrain the said Defendant from levying and sell- ing the Plaintiff's property, under a certain execution issued in favor of the De- fendant, against the Plaintiff, on a Judgment recorded in the county of Wake, against the Western North Carolina Railroad Company, Eastern Division, di- rected to the Sheriff of Buncombe county, commanded to him to make the said money out of the property of the Plaintiff in this action ; and whereas, the said James L. Henry, Judge, as aforesaid, has ordered that the Plaintiff is entitled to injunction and relief demanded on his filing bond, in the sum of two hun- dred dollars, before the Clerk of the Superior Court. And that notice issue to the Defendant to appear at the next Term of Burke "ocice of the iresroins Superior Court, and show cause, if any he has. why the prayers of the petition should not be granted, and that in the meantime he and all other persons be restrained from further proceedings under the judgment and execution set forth in said complaint. Now if the said plaintiffs shall well and truly pay and discharge all damages and costs of said restraining order in favor o; the defendant, then the above bond to be void, otherwise 1o remain in full force and effect. Attest : Western N. C. Railroad, by J. W. Wilson, President. S. T. Pearson, J. W. Wilson. [Seal.] And accordingly the following notice was issued to the Coroner of Buncombe county : State of North Carolina, ) Burke County Superior Court. \ To the Coroner of Buncombe County, — Greeting. Superior Court, ") Burke County, nth District of North Carolina. At chambers, W. N. C. Railroad, Eastern Division, )■ Against | 26th of Januarv, 1S7S. ile'r" s "' R. M. Walker. J In the above entitled cause it appeared to the Court as follows: That the plaintiff is entitled to injunctive relief, and on his filing bond in the sum of ($200) two hundred dollars, It is therefore ordered : 1st : That notice issue to the defendent to appear at the next term of Burke Superior Court and show cause if any he has why the prayer of the petitioner should not be granted. And that in the meantime he and all other persons be restrained from further proceedings under the judgment and execution set forth in said complaint. The Clerk of said Burke Superior Court will issue notices, copies, &c, and tax costs to await the further order of tne said Superior Court. J. L. Henry, Judge. You are therefore hereby commanded to serve the above order upon Levi Plemmons, Sheriff of Buncombe county, and to deliver to the said Sheriff at the same time the enclosed copy of the plaintiffs complaint, immediately, and make your return upon the order to the next term of the Superior Court of Burke, to be held for the County of Burke, at the Court House in Morganton, on the 2nd Monday in March next, with your return endorsed thereon, how you shall have executed the same. Herein fail not and have you then and there this process. Given under my hand and seal of office, at office in Morganton, this the 29th day of January, 1878. D. C. Pearson, Cl'k Superior Court. [Seal.] Whi"h sril notice wis duly returned endorsed : Executed the 31st day of January, 1S7S, by delivering a copy of the complaint mentioned in the within to Levi Plemons, Sheriff of Buncombe county. Return of Cor 1 ' oner of Bun- Samuel C. Shelton, Coroner. combe. And the plaintiff filed the following affidavit: The Plaintiff in the above entitled action make the oath that the defendant, R. M. Walker, after due diligence, cannot be found in this State, so that the summons issued in this action cannot be personally served upon him. That Affidavit o f the Plaintiff is informed and believes that he is a resident citizen of another ? ivlrnto State. That the plaintiff has a good cause of action existing against the defend- order of pub- ant, and that he is a necessary and proper party to this action, relating to real property in this State, and that he has property in this State and this Court has jurisdiction of the subject matter of this action. Jas. W. Wilson, Pres't W. N. C. Railroad. Sworn to and subscribed before me, this 29th January, 1878. D. C. Pearson. Clerk Sup'r Court. And thereupon the following order was made : This action has been commenced by summons against the Defendant, return- able to the next Term of the Superior Court of Burke county, on the 2d Mon- day in March, 1S7S. And the Plaintiff has filed a complaint for relief, and - f . upon the hearing of which, at Chambers, His Honor Judge Henry ordered that lication. notice should issue to the Defendant, commanding that an execution issued from the county of Rowan, in favor of the Defendant, against the Western North Carolina Railroad Company, Eastern Division, now in the hands of the Sheriff of Buncombe County, and levied upon the property of the Plaintiff be enjoined, and the Defendant and all other persons be restrained from further execution ol said process, and that Defendant appear at said Court and show cause, (if any he has,)' why the Plaintiff shall n:)t have the relief demanded in said complaint. And it appearing by affidavit, to the Court, that the Defend- ant R. M. Walker, is a resident citizen of another State, and that the summons in this action and the copy of the restraining order of the Court cannot be per- sonally served on him. It is therefore ordered by the Court, that publication be made in the Blue Ridge Blade, a newspaper published at Morganton, once a week for six weeks, requiring the Defendant to appear at the said Court on the 2d Monday in March, 1878, and answer or demur to the Plaintiff's com- plaint, at that term of said Court. This the 29th Jan., 1878. D. C. Pearson, C. S. C. And at the Term of said Court begun and held in and for the County of Burke, at che Court House in Morganton, on the 2nd Monday in March, 1878, before the Hon. J. M. Cloud, Judge, the following order was ncrde : (i66) State of North Carolina, \ Superior Court, Spring Term, 1S78. Burke County.} W. N. C. R. R. Co, vs. R. M. Walker. I jn the above entitled case it is agreed by counsel for both Plaintiff-; an;! D2- Defendant al- fendants, that the Defendants in this case have 60 days allowed them in which lowed to an- tQ fi , e theh . answer And upon the agreement of counsel for Plaintiff and Defendant, it is ordered by ,jthe Court that injunction issue, restraining the Plaintiff from all proje.diigs Injunction till against said Plaintiff company, its franchises, road, property and effects, until further ord'r.s. the further order of this Court. J. M. Cloud, Judge. And at Fall Term, 1878, the case was continue .1, and at Spring 1 Term, 1879, the case was continued. And at Fall Term, 1879, of said Court, the case was continued. And at the Term of said Court begun and held in and for s:iid county, on the 21 Monday in March, 1880, before the H ;n >ra')le John A. Gilmer, Judge. This cj.se coming on to be hdard, the fol- lowing decree was made : North Carolina, "] Superior Court, Burke County. | Spring Term, 1880. Western North Carolina Railroad, Eastern Division, } VS. I R. M. Walker. J This action heard on motion at Spring Term, 1889, to make the injunction final. prayed for perpetual, the Court finds and declares the followin ? facts : On the 23rd day of January, 1878, the plaintiff began his civil action against the defendant, returnable to the Spring Term of 1878, Burke Superior Court, praying for a perpetual injunction against the defendant selling the road, pro perty, franchise and effects of the plaintiff corporation under an execution issuing upon an alleged debt reduced to judgment in their favor. And upon the motion of the plaintiff, it was ordered that the said defendant appear before the Judge of said District on the 28th day of January, 1878, and show cause why an injunction should not issue, and accordingly the defendant did appear, and after hearing the complaint and affidavits, the Judge ordered that the defendant be restrained from selling the said road until he should file an answer, and until the further order of the Court. At Spring Term, 1878, ai agreement was entered by the counsel of the plaintiff and defendant to the effect that the defendant was to have sixty days in which to file his answer, and i the meantime his execution against the road, property and effects of plainti / was to be restrained, and the same was entered upon the Docket as an order the Court. And the Court further finds that said cause has been continued from term fr ( 167) term to the present time, in order that the defendant might file his answer, and no answer being filed, it is now moved by the Hon. B. S. Gaither and Geo. N. Folk, Esq., Attorneys for the plaintiff, thai the said injunction heretofore issued as aforesaid, be made perpetual, and thereupon the Court finds and declares that the facts' s it forth in the complaint in this action are true, and the Court expressly refers to and adopts the statement of facts contained in the complaint as fully as though the same were here repeated and set fortli in the records and figures there issued And thereupon the Court doth order, adjudge and decree that the said defend- ant, R. M. Walker, be perpetually enjoined and restrained from selling under his execution or any execution issuing upon the judgment recited in the com- pi lint, the road, property, franchise and ejects of the plaintiff corporation, and it is also ordered that the said R. M. Walker pay the cost of this suit to be taxed by the Clerk. John A. Gilmer, Judge, presiding. State of North Carolina, \ Burke County, j I, J. H. Hallyburton, Cierk of rfch Carolina Railroad Company, Eastern Division, vs. R. M. Walker, as per original papers now on file in my office. In testimony whereof, I have hereunto set my hand and seal of said Court, this 31st. day of October, 1881. [Seal.] (Signed ) J. H. Hallyburton, Clerk Superior Court Burke County. (i6S) ( '6 9 ) ( *7o) ( i7«) ■WESTERN DIVISION. At Spring Term, 1873, of the Superior Court of Buncombe county, the following judgment was rendered, to wit : E. Clayton, ~) VS. , The Western Division of the Western [ North Carolina Railroad Company. J At a Superior Court held at the Court House in Asheville in the county of Buncombe on the 22nd day of April, 1872; Present, Honorable J. L. Henry, Judge, 11th District. This action having been brought, and the defendants hav- ing accepted service of a summons, and a judgment therein rendered for the Judgment, plaintiff. It is now on motion of J. H. Merrimon, counsel for the plaintiff, E. Clayton, adjudged that the plaintiff recover of the defendants eight thousand six hundred and seventeen dollars and seventy -eight cents ($8, 617. 678,) of which eight thousand one hundred and seventy-four dollars and seventy-four cents ($8,174.74,) is principal, and four hundred and forty-three dollars and four cents ($443.04,) is interest and C03t, to be taxed by the Clerk, with interest upon said principal till paid. This judgment is in no way to interfere with the right of the plaintiff to re- cover in an action against the defendant any sum justly due said plaintiff from said defendant at the time of bringing this action, and not included in this judg- ment. (Signed.) Henry, Judge, &c. Transcripts of this judgment and executions thereon were sent to Haywood and Madison, May 10th, 1872, and execution issued to Buncombe, May nth. 1872. The executions to Buncombe and Haywood were returned as follows : Execution to Buncombe — satisfied, see plaintiff's receipt filed in railroad office, pay into office $12.60, my commissions retained. J. M. Young, Sheriff. Execution to Haywood — levied this execution on the road-bed and franchise of the Western North Carolina Railroad company, lying and being in the county of Haywood in this State, this 21st day of May, 1872. A. J. Murray, Sheriff of Haywood county. The lands levied on was sold on this, and various other Superior Court executions at the Court House in Waynesville, on the 6th day of July, 1872, and Edward F. Ross, Agent for plaintiff, was the last and highest bidder, at the sum of $500.00- (172) No money received by me, but my fees. A. J. Murray, Sheriff. Buncombe County, — Superior Court,'* State of North Carolina. > To the Sheriff of Buncombe county — Greeting : Whereas judgment was rendered on the 22nd day of April, 1872, in an action between E. Clayton against the Western Division of the Western North Carolina Railroad company, defendant, in favor of said plaintiff and against the said defendant for the sum of eight thousand and six hundred dollars and seventy- eight cents, as appears to us by the judgment roll filed in the office of the Clerk of our said Court, and whereas, the said judgment was docketed in said county on the 22nd day of April, 1872, and the sum of 8,617.78 dollars is now actually Execution to due thereon, with interest on 8.174.74 d liars from the 22nd day of April, 1872, uucombe. an( j t j ie f ur th er sum f twelve dollars and ten cents for cost and disbursements in said suit expended, whereof the said Western Division of the Western North Carolina Railroad company is liable. You are therefore commanded, to satisfy the said judgment out of the personal property of the said defendant within your county, or if sufficient personal property cannot be found in your county belonging to such defendant on the day when the said judgment was docketed jn your county, or at any time thereafter, in whos? hands soever the same may be; and further to return this execution at the next term of this Court, to be held for the county of Buncombe at the Court House in Asheville on the 4th Monday after the 4th Monday in August, 1872, to the office of the Clerk afore- said. Issued the 11th day of May, 1872. J. E. Reed, Clerk Superior Court Buncombe County. On the back of said execution was endorsed the following levy ■ For want of personal property I have levied this execution upon the real pro- perty of the defendant mentioned in the said execution situated in Buncombe county along the line of locati n, the track, road-bed and other lands adjoining same purchased by or condemned to the use of the said defendant, and upon the town lot in Asheville, N. C, on the western side of Main street on southern side of the street leading from Main street to Church street joining the lot now be- longing to Mrs. Julia Laxton and the Episcopial church, containing two acres, more or less, on which are situated the offices of the defendant. I also levy this execution on the franchises, and all the rights, and privileges and property incident thereto, or in any wise thereto, appertaining or belonging to the said defendant corporation, 25th May, 1872. J. M. Young, Sheriff. And attached to this execution is a return in the words and figures following, to wit : Return. After due advertisement according to law I proceeded to expose to public sale in the town of Asheville, at the Court House door in said town, it being the 8th day of July, 1872, and the 1st Monday succeeding the 1st Saturday in said month, the following property, to-wit : the office of the western North Carolina Railroad company, (Western Division,) situated in the town of Asheville, officee. opposite the Eagle Hotel, and immediately below the store house of Rankin & ( *73) Son, when and where Thos. L. Clayton and John C. Smathers became the last and highest bidders at the sum of one hundred dollars. Also at the said time and place, the road-bed, right of way including all the real property belonging to the company in the county of Buncombe, when and where the said Thos. L. Clayton and John C. Smathers became the last and highest bidders at the sum of one hundred dollars. At the same time and place the franchise of said rail- road company together with all the rights, privileges and property incident thereto or in any way connected therewith, liable to be sold according to the ^Ms^et?* 111 " laws of North Carolina, was offered on the following terms, to wit : who will pay the amount of the executions in the hands of the Sheriff, together with all the costs for the shortest period of time, whereupon Thos. L. Clayton and John C. Smathers bid the amount of the within executions and costs for the property for the time specified in the charter, and no one agreeing to take the property for a less time they were declared the purchasers. J. M. Young. Sheriff Buncombe. And immediately following the above on the same papers is the following, (in hand writing of J. H. Merrimon, Attorney for creditors.) to wit : By direction of the creditors and the railroad company we assign the above bids to R. Y. McAden, and instruct the Sheriff to make the title to said property to him. Thos. L. Clayton, . . Assignment to July 8th, 1872. J. C. Smathees. McAden. N. B. — The summons, complaint, and answer in the foregoing case have been misplaced. State of North Carolina. \_ Buncombe County, j Know all men by these presents that the undersigned. Sheriff of the county of , and State above written, by virtue of an execution issued from the Superior Court of said county in the case fol- lowing, to-wit: E. Clayton vs. The Western North Carolina Railroad Com- pany, Western Division, as of record doth appear, having levied said execution on the lands and tenements of the said Railroad Company, hereinafter S ? e »l ff 'l s J dee< l r J ' to McAden of described, on the 25th day of May, 1872, and having made advertisement accord- road-bed, ' to McAden of The Western North Carolina Railroad Company, Western Division, as of ' record doth appear, having levied said execution on the franchise of said Rail- road Company and property incident thereto, as hereinafter described, on the 25th day of May, 1S72, and having made advertisement according to law, and sold said franchise and property at public sale for cash on the Sth day of July, (^75) 1872, at the Court House door in said county, when and where R. Y, McAden. of the county of Mecklenburg and State of North Carolina, became the last and highest bidder, by bidding the full am Hint of the execution and costs, and taking the property for the shortest time, to- wit: the time specified in the charter. In consideration of the premises, and in further consideration of the purchase money paid as aforesaid by the said R. Y. McAden, the receipt whereof is hereby acknowledged, hath bargained and sold, and by these presents doth bargain and sell unto the said R. Y. McAden and his heirs, all the right, title and interest of the said Railroad Company as aforesaid in and to the following property levied on as aforesaid, situate in the State of North Carolina and bounded as follows, to-wit: Franchise, together with all the rights, privi- leges and property incidental thereto, or in any way connected therewith, liable to be sold under execution according to the laws of North Carolina. To have and to hold said franchise, property and premises, with its improve- ments and appurtenances, to him the said R. Y. McAden and his heirs and assigns, in as full and ample a manner as the undersigned is empowered by virtue of his office to convey and assure the same. And the undersigned) Sheriff as aforesaid, doth covenant, promise and agree to and with the said R. Y. McAden, his heirs and assigns, that he and they shall and may at all times hereafter have, hold, occupy and possess said land and premises free and clean of and from all incumbrances had, made or done by the undersigned, or his order, means or procurement ; and that the undersigned will forever warrant and defend said land and premises to the said R. Y. McAden, his heirs and assigns, so far as his said office of Sheriff* will authorize and enable him to do, and no further. In testimony whereof, the undersigned, Sheriff as aforesaid, hath hereunto jset his hand and seal, this 8th day of July, 1872. ! Signed, sealed and delivered in presence of Jas. H. Merrimon. [Seal.j J- M. Young, Sheriff". State of North Carolina,) In &e Prohate Court . Buncombe County. ) The execution of the within deed from J. M. Young, Sheriff of Buncombe Icounty, to Rufus Y. McAden, was this 9th day of July, 1872, proved before the undersigned. Judge of Probate for said county, by the oath and examination bf Jas. H. Merrimon, the subscribing witness thereto, therefore let the said deed, together with this certificate, be registered. J. E. Reed, Judge Probate. Registered the 9th day of July, 1872. J. R. Patterson, Register. (176) Whereas, on the 8th day of July, 1872, the franchises, road-bed, right of way, privileges and profits of the Western North Carolina Railroad company, Western Division, was exposed to public sale at the Court House door in the town of Asheville; and whereas, Taos. L. Clayton and John C. Smathers became the last and highest bidders for the franchise and property as aforesaid, all of which more fuily appears by the various executions upon which said sale was made; and whereas, for good and sufficient reaso.is and considerations thereto understood and expressed, the said Thos. L. Clayton and John C. Smathers, transferred and assigned to Rufus Y. McAden, of the county of Mecklenburg, their bid for the same by which the said R. Y. McAden has obtain d the deed of tlie Sheriff of Buncombe county for all the property and rigntsof property pass- ing by said sale. Now this indenture wittenesseth that for and in consideration of premises and agreements made between the parties and the further considera- tion of one dollar to him thy said R Y. M.Aden in hand paid by the said Thos. , , L. Clayton and John C. Smathers, the receipt whereof is hereby acknowledged, to trustees, the said R. Y. McAden has hereby bargained and sold, and doth by these pres- ents, bargain and s> 11, release and quit claim to the said Thos. L. Clayton and John C. Smathers all that portion of the Western Division of the Western North Carolina Railroad, west of the French Broad River to the State line at or near Ducktown, Tennessee, known as the main Lne, together all the franchises, privileges, road-bed, real and personal property to the same belonging or apper- taining, as well as all the effects choses in action, rights, credits to th^ said Western Division belonging or appertaining, except a deed of trust executed to N. W. Woodfin and R. W. Pulliam, trustees for the Western Division of the Western North Carolina Railroad company by G. W. Swepson, and the railroad office in the town of Ashevilie, which by agreement said McAden is to retain to his own use, together with all the adequate remedies in law and Equity to collect and enforce the same in trust; that the said Thos. L. Clayton and John C Smathers will collect and control said property and franchises for the benefits and to the use of the said main line of railroad from the French Broad River to the State line at or near Ducktown, Tennessee, to construct the same according to its present location after paying and discharging whatever debts may remain unpaid against said railroad company after the execution of this deed, it being the intention to pass all the assests of every description to the said Thos. L. Clayton and John C. S.nathers in trust as aforesaid except those heretofore excepted. In witness whereof the said R. Y. McAden has hereunto set his hand and seal the 8th day of July, 1872. (Interlined before signed.) R. Y. McAden, [Seal.] Witness : A. T. Davidson. Buncombe County. I In the Probate Court. The execution of the within deed from R. Y. McAden to Thos. L. Clayton and John C. Smathers was this 10th day of July, 1872, proved before the under- signed Judge of Probate for said county, by the oath and examination of A. T. Davidson, the subscribing witness thereto. Therefore let the said deed together . > (m) with this certificate be registered. J. E. Reed, Registered 10th July, 1872. Judge of Probate. J. R. Patterson, Register. R. R. Office, Asheville, N. C, June 25th, 1872. Pursuant to President's call, a meeting 01 Directors was held at this office this day. Present, Hon. N. W. Woodfin, Hon. A. T. Davidson, Gen. T. L. Clingman and Pinkney Rollins, Esq. A. T. Davidson called to the Chair. A communication being received from President W. W. Rollins, stating that he could not reach here upon that day, in consequence of sickness in his family, and requesting Board to adjourn till to-morrow morning, June 26. Minutes of Pi- On motion, Board adjourned until to-morrow morning at 9 o'clock. ing. A. T. Davidson, Pres't Pro Tem. R. R. Office, June 26, 9 a. m. Board met according to adjournment. Present. W. W. Rollins, President, in the Chair, Hon. N. W. Woodfin, Hon. A. T. Davidson, Gen. T. L. Cling- man and Pinkney Rollins, Esq. Meeting called to order by the President ; When it was Resolved d^c. ; (Matter not relating to our question,) and follow- ing this, on motion of Gen. T, L. Clingman, It was Resolved, That the commissioners are requested to place in the hands of the Treasurer, all available moneys in their possession, to be paid out forth- with to contractors and other creditors, pro rata, and that the trustees are re- quested in like manner to sell, as soon as practicable, the mortgage lands of George W. Swepson, in order that the proceeds of said sale may be applied to the liquidation of the debts of the Company. Carried. It was then, on motion of A. T. Davidson, Resolved, That a contract made by the counsel of the creditors, and ap- proved by R. Y. McA.den, by his agent, W. W. Rollins, which provides : 1st. That the Road in Buncombe and Madison counties shall be sold under executions now in the hands of the sheriffs of said counties ; that the same shall be bought in at said sale by trustees appointed by the Defendants in execution and said creditors, to be held in trust for the purposes therein set forth, to-wit : To the payment of the debts of the Company, and the remainder of the assets to be applied to the construction of the Western line of said Western Division of the Western N. C. R. R. from the French Broad River to the Georgia line, at or near Ducktown, be, and the same is hereby approved. Resolved, That Col. Joseph Cathey, of the county of Haywood, be, and he is hereby appointed, trustee on behalf of this Company, for the porposes of car- rying out the said contract. Adopted unanimously. The contract referred to in the resolution is as follows : Whereas, The Western Division of the Western N. C. R. R. Co. is in- debted to M. J. Fagg & Co.. E. Clayton, M. Tabler, John H. Murphy & Co., Wm. Bird, Phillip Rhea, A. T. Davidson. Ed. Vickers, Dan'l Dougherty, W. Ames, J. B. Neeley, Martin Shea, Thos. Steers. G. M. Roberts, W. W. Rollins, W. W. Hemming & Co., J. L. OffuttJ. Henry Shepherd. L. M. Welch, Pride & Bibb, Baird, Rollins & Roberts, G. M. Roberts, trustee, &c, and J. P. Ken- nedy and others, and the parties above named have heretofore obtained judg- ments in the counties Buncombe and Madison against said Company,. upon said indebtedness and executions have issued theron to sell the road and road bed and franchise in the counties of Buncombe, Haywood and Madison, and the said executions have been levied on said property of said Company, and the same has been advertised to be sold on the sixth and eighth days of July, prox., to satisfy said judgments ; Axd Whereas, It is desirable that the said judgments should be paid, and all the further disputes and litigations between said parties ended, and the road completed as speedily as possible ; Now, this agreement witnesseth : That the said corporation has appointed Joseph Cathey, of the county of Haywood, and the creditors above named, Thos. L. Clayton, of the county of Buncombe, their agents or trustees, for the purposes hereinafter mentioned and specified, to-wit : That they shall attend at the sale, and purchase on behalf of, and for the use and benefit of said cred- itors, the road, road bed and franehise, with all its rights, privileges, &c, and other property levied on, and hold the same subject to the execu- tions of- said creditors, and subject to the following conditions herein agreed upon, it, whether the assets passed by the sale or not, it is agreed they shall pass the said trustees by this agreement, by virtue of said sale. The said trustees are directed to reconvey, bv such instrument as may be necessary, the said assets to said corporation, or any one by them selected, to be held in trust, after such claims are actually and fully paid up, for the construction of the Road on the main line West of the French Broad River. And if any part of said main line, West of French Broad River, road bed, franchise, privileges &c, pass to said purchasers by said sale, that portion is to be reconvened in like manner as the assets. If the ';aid creditors can find a purchaser who can take the road. French Broad Branch, paying said debts and claims, leaving the assets undisturbed, the said trustees shall convey (he title to said French Broad Branch of the said Railroad to said purchaser. If they do not find such purchaser, the trustees are to hold said title, and the contractors and creditors will not release any claim which they may now have on said assets for the payment of their claims and other stock ; and it is further agreed, that if any party shall advance the money to pay the said creditors the full amount of their claims and the costs of their suits, the said trustees shall forthwith convey to said party, the Road so purchased by them, and the said party so purchasing and advancing as aforesaid, is to be re- paid the amounts so advanced from said assets -with interest, but the party so advancing shall have no recourse on said creditors for the amount so advanced. That whether the assets pass by the said sale or not, it is hereby understood (i79) that said assets shall, by force of this agreement, vest in the trustees herein ap- pointed, to be used and disposed of by them as hereinbefore provided. If, however, the trustees and creditors are unable to find a purchaser or pur- chasers under the terms and conditions hereinbefore provided, it shall then be the duty of the trustees, by and under the direction of the creditors, to convey the said French Broad line to any party who will build and complete the same. The said creditors by so doing do not release any claim or lien on the said as- sets, and the said trustees retaining the assets as hereinbefore provided. In witness whereof the various parties have hereto set their hands. This 26th day of June, 1S72. The Western North Carolina R. R., Western Division, (Signed,) By its President, W. W. Rollins. M, J. Fagg & Co., by J. H. Merrimon, Attorney, " E. Clayton, " J. H. Merrimon, " M. Tabler, " J. H. Merrimon. " " John H. Murphy, " J. H. Merrimon, " " A. T. Davidson, " J. H. Merrimon, " (Signed) : Wm. Bird, Phillip Rhea, E. Vickers, Dan'l Dougherty, W. Ames, J. B. Neely, Martin Shea, Thos. Steers, G. M. Roberts and W. W. Rollins, W. W. Flemming & Co.. J. L. Oftut, J. Henry Shepherd, L. M. Welch, Pride & Bibb, Baird, Rollins & Co., G. M. Roberts, Trustee, and J. P. Kennedy, by ther Attorney, Theo. F. Davidson. Endorsed : We, as commissioners of this Company, approve this agreement and assent to its execution. June 26t:i, 1872. (Signed,) N. W.. Woodfin, (Signed,) W. W. Rollins, (Signed,) W. G. Candler. I approve the within agreement so as to allow the trustees mentioned, to pay the debts with the assets, and for the purposes of this agreement, release all claims on the said assets, provided the Road is sold as agreed upon. (Signed,) R. Y. McAden, Per W. W. Rollins, Agent. Order spread upon record. There being no further business, the Board, on motion, adjourned to Fiiday, July 5th, 1872. W. W. Rollins, President. G. M. Roberts, Secretary. R. R. Office, Asheville, N. C, July 5, 1872. Board of Directors met this, Friday July 5th, at 3 o'clock, P. M., according to adjournment. Present : W. W. Rollins, President, in Chair; Hon. A. T. Davidson, Hon. N. W. Woodfin, Gen. R. M. Henry, P. Rollins, and J. H. Rumbough, Esq., when the meeting was called to order. Col. Jno. Cathey having declined to serve as trustee, as per former resolution, J. C Smathers, Esq., was upon motion selected in his stead, who subsequently consented. (iSo) There being no further business, adjourned to 3 o'clock, P. M., Saturday, July 6th. Saturday, July 6th, '72, 3 o'clock P. M. Board met pursuant to adjournment. Present same as yesterday. On motion ■ adjourned to Monday, July 8th, at 9 o'clock, A. M. Monday, July 8th, '72, 9 o'clock, A. M. Board met according to adjournment. Present : W. W. Rollins, President, jn Chair; Hon. N. W. Woodfin, Hon. A. T. Davidson, Gen. R. M. Henry, P Rollins and J. H. Rumbough. When the following was submitted by R. Y. McAden, Esq. : Asheyille, N. C, July 8th, 1872. To the President and Directors of the Western North Carolina Railroad, Wes- tern Division : Gentlemen : — I am advised by attorneys in North Carolina learned in the law, and by Hon. Theo. Cuyler, of Philadelphia, the attorney of the Pennsylvania Central Road, that I own the Western North Carolina Railroad from Salisbury to Ducktown and to Paint Rock, also the entire property of said company, including all claims due to said company. I feel that it would not be just in me to claim this en- tire property unless the parties who have done the work on the road are paid. Proposition of To accomplish this, and to settle all matters in dispute, and thereby secure the a c vden. early construction of the road, I make this proposition : That for the note or draft, due by George W. Swepsonfor about one hundred and sixty-four thousand dollars, secured by mortgage on lands, assigned to me, without recourse on the company, and the conveyance of the lands mentioned in the deed of trust, to me, and for the Sheriff's deeds to the French Broad branch, I will pay to the treasurer of the company, fifty thousand dollars in cash, to be paid to the con- tractors, and will convey to the company all my rights acquired by reason of purchase at execution sale to the Ducktown branch and the property of the company, i eluding claims vs. Swepson, Hopkins, Littlefield & Co. Respectfully, (Signed.) R. Y. Mo Aden. Whereupon the foregoing proposition was fully discussed and understood by the members present, when A. T. Davidson offered the following resolution : Resolved, that the proposition of R. Y. McAden submitted to the Board, this / n^eptance. of McAn'en's pro- July 8, 1872, proposing to pay $50,000 00 for the debt on Geo. W. Swepson for position. $164,400.00 and the lands pledged for the samv, and judicial title for the Fretujbi B:0.adline, of the W. D. W. N. C. R. R. and his further oral proposition to pay the sum of $5,000.00 for the railroad office and lot in the town of Asheville, be aud the same is hereby accepted, and that the trustees to execute the deed of trust in which the lands are pledged for the debt be directed to convey to the said R. Y. McAden by proper releases and acquittances, the interest of this com- pany in said debt and lands so pledged, without recourse on said company. And that the trustees of the funds and assets of this company be instructed to convey to the said R. Y. McAden such title as they may derive at Sheriff's sate i'or the said French Broad road, upon the payment of the sum of $55,000.00 (iSi) being the amount in his written proposition and oral offer for the railroad office, and paying the expenses incidental to the execution and litigation of said deed of trust now in suit, and said R. Y. McAden executing to the trustees of the assets aforesaid, a release in due- form of law to the main line from the French Broad River to Ducktown, Tennessee, and all the assets of the company other than those specially conveyed by this resolution. The question recurring upon the passage of the resolution, Gen. R. M. Henry demanded the yeas and nays which being ordered, resulted as follows : Yeas, N. W. Woodfin, A. T. David- son, J. H. Rumbough, W. W. Rollins and Pinkney Rollins. Nay : R. M. Henry. So that the resolution was declared adopted. On motion it was further ordered that the President W. W. Rollins, notify said R. Y. McAden of the acceptance of his propositions. The President notified the Directors that he had complied with their order, and that the said R. Y. McAden signified his acceptance of the same according to the foregoing resolution. Whereupon it was ordered that the President be authorized and directed to have prepared the necessary papers, conveyances, &c'., to cany into execution the said contract. On motion adjourned to meet upon call of the President. W. W. Rollins, G. M. Roberts, Secretary. President. CALLED MEETING Asheville, N. C, Tuesday, July, 9, '72. Board of Directors met pursuant to call of President. Present : W. W. Rollins, President, in the Chair; Hon. N. W. Wooifin, Hon. A. T. Davidson, J. H. Rumbough, Pinkney Rollins and Gen. R. M. Henry. On motion of N. W. Woodfin, Lawrence Pull .am be allowed the sum of two hundred dollars for auditing accounts vs. George W. Sweps ,n and detecting an error of ten thousand dollars in company's favor. On motion of Col. A. T. Davidson, the following resolutions were adopted, viz : Resolved, That the commissionersjjbe directed to pay the funds on hand to the contractors and creditors as follows ; First to the payment of all the judgments, cosls, and expenses of the same, and in the same ratio on all the admitted debts of the company, and if a surplus shall remain on hand after the payments hereby directed, the same shall be subject to the future order of the Board of Directors, subject to all the equities of the parties. Resolve /, That it is the intention on the part of this Board of Directors, to settle the matters in dispute on the most liberal terms an 1 basis in view of all the facts invo'.ved in the various case', and that they will not stand on the strict legal rights of the parties in the permises. Resolved, That the Board of Directors will meet in the town of Asheville, on the 12th day of August, 1372, for the purpose of aljust'uig these matters. On motion of N. W. Woodfin, the Secretary is ordered to notify the absent Directors of the passage of the above last named resolution and for them to attend at that time. On motion adjourned. W. W. Rollins, G. M. Roberts, Secretary. President. (lS2) (i8 3 ) (i8 4 ) Summons. M.J. FAGG AND OTHERS, VS. THE WESTERN DIVIS- ION OF THE WESTERN N. C. RAILROAD, AND • OTHERS. State of North Carolina, j Buncombe County. \ M - J- Fagg and W. R. Ray, as M. J. Fagg & Co.,1 vs. The Western Division of the Western North Caroli na Railroad Company and N. W. Woodfin, W W. Rollins, W. G. Candler, J. L. Henry and W. I P. Welch, Commissioners. J Be it remembered that on the 3d day of September, 1872, the Clerk of the Superior Court of Buncombe County issued the fol- lowing summons : Buncombe County, | In the Superior Court.) M. J. Fagg and W. R. Ray, as M. J. Fagg & Co., ] against \ The Western Division of the Western North Car- I o ,„,^,„„„ olina Railroad Company, and N. W. Woodlin. '^' W. W. Rollins, W. G. "Candler, J. L. Henry and W. P. Welch, Commissioners. The State of North Carolina ; To the Sheriff of Buncombe County, — 'Greeting : You are hereby commanded to summon the Western Division of the West- ern North Carolina Railroad Company, and N. W, Woodfin, W. W. Rollins, W. G. Candler, J. L. Henry and W. P. Welch, Commissioners appointed by act of the General Assembly, in behalf of said Company the defendants above named, if they be found within your county, to be and appear before the Judge of our Superior Court, at the Court to be held for the county of Buncombe, at the Court House in Asheville, on the 4th Monday after the 4th Monday of August, 1872, and answer the complaint which will be deposited in the office of the Clerk of the Superior Court of said county within the first three days of the next term thereof, and let the said defendant take notice that if they fail to an- swer the said complaint within that time, the plaintiff will take judgment against the said Company and said Commissioners, for the relief demanded in said complaint. Hereof fail not, and of this summons make due return. ( i85 ) Given under my hand and the seal of said Court, this, 3d day of Sept., 1S72. ' [Seal,] J. E. Reed, Clerk Superior Court Buncombe County. On this summons is the following endorsement : Served 1S7 as to all except Welch, not found in my county. J, M. Young, Sheriff Buncombe Co. At Fall Term, 1872, of the Superior Court, of Buncombe county, the plaintiffs filed the following complaint, to wit : SUPEEIOR COTTKT, \ Buncombe County, J M. J. Fagg and W. R. Rat, Plaintiffs, "1 Aagainst I The Western Division of the Western North Carolina In nm „i Q i n t Railroad Company and N. W. Woodfin, W. W. Rollins, f <-° ra piamt. W. G. Candler, J L. Henry and W. P. Welch, Commis- | sioners, Defendants. J Complaint. The plaintiffs allege : 1. That they are partners under the firm name of M. J. Fagg & Co. 2. That the defendant is a corporation duly chartered and organized under the laws of North Carolina. 3. That said defendant became indebted to the plaintiff for work and labor done upon defendant's road in the sum of about $32,749.81 of which amount there remains due and unpaid the sum of about flf te'jn hundred and forty-five dollars and twenty cents, principal with interest on the monthly estimat es of the defendant's engineer. ' 4 That by an act.passed by the General Assembly entitled "An act to provide for the completion of the Western Division of the Western North Carolina Railroad," ratified on the 24th of March, 1870, and assented to by said defendants, N. W. Woodfin. W. W. Rollins, W. G. Candler, J. L. Henry and W. P. Welch were constituted a commission with the duty among other things imposed upon them of collecting and receiving the funds and other assets of the said company, and placing the same in some safe bank, and paying out of the same the just debts of the said company, first as well as to provide for the payment of con- tractors and others for the construction of said road in future. 5. That by another act passed by the General Assembly ratified on the 13th day of December, 1871, it is made the duty, among other things, of such mem- bers of the commission as accepted and undertook to dis charge the duties pres- cribed by the first mentioned act, to pay out of any monies remaining in their hands to contractors who ha ve done work on defendant's road any sum or sums of money justly due them for such work then remaining unpaid. 6, That sufficient funds came to thra hands of said commissioners (who accep- ted and undertook to discharge the duties imposed by the first mentioned act) to pay off and discharge the plaintiff's debt, if the said commissioners had dis- bursed the same in accordance with the provisions and requirements of said act. (iS6) 7. That instead of applying the said funds to the payment of plaintiff's debt as required by law the siid commissioners have misappropriated the same, have failed to deposit the same in any safe bank, but as the plaintiff is informed and believes, and expressly avers have expended a large portion thereof in the prosecution of certain suits in the city of Ne w York and elsewhere, and have deposited other large sums thereof with unknown parties as collateral security for the prosecution of said suits. 8. That the plaintiff has reason to believe and does believe that the said com- missioners are continuing and will continue to misappropriate said funds, and if permitted to do so the plaintiffs will lose their said debt : 1. Wherefore the plaintiffs demand judgment for the sum of $1,545 20 with interest on the engineer's monthly estimates from the 30th day of Sept. 1889. 2. For an order restraining and enjoining said defendants from disposing of said fund and from using the same for any other purpose than the payment of plaintiffs, and the other just debts of said company. 3. For a receiver to collect and receive said f and and hold the same subject to the order of this Court. 4. For such other and further relief as to justice and right may appertain. 5. For the costs of this action. Vaxce & Merrimon, Attorneys for Plaintiffs. M. J. Fagg bein? duly sworn says : I have heard the foregoing complaint Vernation, read, and know its contents; the same is true of my own knowledge except as to such matters therein stated on information and belief, and as to those matters 1 believe it to be true. M. J. Fagg. Sworn and subscribed the 26th day of September, 1872. J. E. Reed, Clerk, &c. At Fall Term. 1872, the defendant, the Western Division of the Western North Carolina Railroad Company filed the following answer, to wit : * nswer of W. „ r . -, D. w. N. c. Superior Court, \ k. R.bo. Buncombe County.) M. J. Fagg & Co., Plaintiffs, 1 Against The Western Division of the Western Norsh Carolina ! Railroad Company, and N. W. Woodfin, W. W Rollins, W. G. Candler, J. L. Henry and W. P. | Welch, Defendants. J The defendant, the Western Division of the Western North Carolina Railroad Company alleges : ( *s 7 ) • 1st. Tbat the first and second allegations in plaintiff's complaint are true. 2d. That the allegation in the 3d paragraph of plaintiffs' complaint of a bal- ance due by defendants to plaintiffs, of fhteen hundred and forty-five dollars and 20 cents, or any other amount, is untrue, as defendant is informed and be- lieves. 3. That the facts set forth in the 4th paragraph of plaintiffs' complaint are in part, true, but the material fact is suppressed; that the board of commission" ers therein named, under tue act of the General Assembly therein referred to' were to act under the direction of the board of directors, of said Railroad Com - panv, as to any further work on said Road. 4. That the 4th, 5th, 6th and 7th p aragraphs of plaintiffs' complaint, relate ■exclusively to the commissioners in said complaint named ; and their answer on file in this cause, is referred to as true, and as containing a full answer to the matters therein alleged. The defendant, for a further answer to the said complaint, al- leges : 1st. That the plaintiff ought not to have or maintain this action, for that before the bringing thereof, to-wit : At Spring Term, 1872, of the Superior Court of Buncombe county, aforesaid, in an action then and there depending between this plaintiff and this defendant, for balance due on account of the work on said Railroad hereinbefore mentioned and referred to, the said plaintiff had and recovered of this defendant, a judgment for the full balance due said plaintiff on account of all the labor performed by said plaintiff for said defendent, as ' aforesaid, which said judgment has been paid, satisfied and discharged, since its rendition. Wherefore, defendant demands judgment for the costs of this action. A. T. & T. F. Davidson, M. Erwin, Woodfin & McLoud. Att'ys for Def'ts. W. W. Rollins, being duly sworn, says : I am the President of the Western Division of the Western North Carolina Railroad Company, the defendant in this action ; that, I have heard the fore- Verification, going read, and know the contents thereof to be true, of my own knowledge, except as to matters stated on information and belief, and those I believe to be true. W. W. Rollins. Sworn and subscribed before me the 5th day of October, 1872. J. E. Reed, Clerk. At said Fall Term. 1872, the defendants, N. W. Woodfin, W. (iSS) W. Rollins and W. G. Candler, commissioners, filed the follow- ing.: SEPARATE ANSWER. North Carolina, ) Superior Court, Fall Term, 1S72. Buncombe County. \ M. J. Fagg & Co., Plaintiffs, ) vs. The Western Division of the Western North Caroli- na Railroad Company and N. W. Woodfin, W. W. Rollins, W. G. Candler, J. L. Henry and W. P.'' Welch, Defendants. The defendants, N. W. Woodfin, W. W. Rollins and W. G. Answer of Candler, answering the complaint of the plaintiffs herein, for a defence thereto, say : 1. That plaintiff cannot maintain this action, for that these defendants are not liable to be sued, except according to the provisions of Section 3, of Chap ter 9, of the Acts of the General Assembly of the State of North Carolina, passed at its session of 1871-72 ; and further, because the said defendants are improperly joined with the other defendant, to-wit : The Western Division of the Western North Carolina Railroad Company. 2. «That since the passage of the said last named act of the General Assem- bly, the defendants have complied with the provisions of the said act, and have made no default in the performance of any duty imposed upon them by virtue of said act. 3. That nothing appears upon the complaint to authorize the relief therein prayed for, to-wit : An order restraining and enjoining these defendants from using the funds now in their hands, for any other purpose than the payment of plaintiff and others, in like case with himself, and for the appointment of a Receiver, &c. 4. That they have never misappropriated any portion of the said fund which has come into their hands, but on the contrary, have applied and disbursed it according to law, and under the order and direction of the Board of Directors of the' Western Division of the Western North Carolina Railroad Company, as is provided by law. 5. That when defendants took upon themselves the responsible duties im- posed by the act of the General Assembly referred to in plaintiffs' complaint, they found the assets of the Company either wasted entirely, or involved in disputes and litigation, which required time and the necessary expenditure of a large amount of money to secure or recover anything at all. Combinations of wealthy and influential parties in New York, Brooklyn, Detroit and London, were able to, and did, by various means, obstruct, hinder and delay, for a long time, and at great costs, and still delay, the enforcement of the rights • with which the commission was entrusted. The State of North Carolina and the Railroad Company, whose interests the commission primarily represented, had ( iSp) neither of them any credit or commercial standing in New York or abroad, and furnished no means for the prosecution and expense of collecting the claims entrusted to the commission. Heavy bonds had to be given before pro- ceedings could be instituted to enforce the contested rights of the Railroad Company, and in order to give such bonds in New York and elsewhere, cash or collaterals equivalent thereto, had to be deposited with those who were in- clined to befriend these defendants in their litigation. Almost every dollar which has been collected, has been collected at the end of a law suit, or upon a compromise of a suit for it, except the first fifty thousand dollars, and some in- considerable sums which were paid on a compromise without suit. 6. That there is now on deposit in solvent Banks, in the City of New York,, the sum of $11,229.26, (eleven thousand two hundred and twenty-nine dollars, and 26 cents,) as appears by the report of the treasurer of the commission, W- W. Rollins, hereto appended, and that sum constitutes the whole fund availa- ble now to defendants for any purpose. 7. The amount thus deposited, as above alleged, is what remains of a large deposit made prior to the 13th of December, 1871, to cover the necessary ex- penses, costs, counsel fees and liabilities of the securities upon the bonds of the commissioners and the Railroad Company, on account of suits instituted and pending prior to the said 13th day of December, 1871, in the City of New York, with J. W. Hopkins & Co., for $800,000, in Florida bonds, and with John Collison, in the City of New York and the City of London, involving the title to $800,000 Florida 8 per cent, bonds, and with the Jacksonville, Pen- sacola and Mobile Railroad Company, of Florida, against the Western Division Western North Carolina Railroad Company, and against the defendants, as commissioners, and a cross action by the Railroad Company against them, in- volving over a million of dollars, directly and indirectly claimed from them as the recipients from George W. Swepson, of that amount of the fnnds of the Western Division of the Western North Carolina Railroad Company, and a suit in Detroit, Michigan, against J. W. Hopkins & Co., and the Michigan Peninsula Railroad Company, involving title to about $80,000 worth of Rail- road iron, and a suit against E. Houston, in the City of New York, involving a large amount of costs, and in which a heavy bond was necessary to be filed, in order to obtain an injunction to restrain the sale of a million of dollars worth of bonds, and several hundred thousand dollars of stocks. 8. That the necessary expenses of the litigation mentioned above, with the amount of the bonds required to carry it on, is greatly in excess of the said sum now on deposit in the City of New York, and one of these defendants, W. W. Rollins, is personally responsible for the same. 9. That, inclusive of the amount of the New York deposit above mentioned the whole amount of receipts and disbursements heretofore had and made by these defendants accounted for in former reports (to which reference is made) of the commission, is about $298,000, (two hundred and ninety-eight thousand dollars,) all of which sum has been paid at various times, upon the order and by the direction of the Board of Directors of the Western Division of the West- ern North Carolina Railroad Company, as provided by law, and which will, (190) Verificrtion. Exhibit. at any time the Court may direct, be more particularly set forth and exhibited for its information, if required. 10. That so far as these defendants are advised it is necessary for them to answer the allegations of the plaintiff's complaint that he is entitled to an unpaid balance from them or the other defendant the railroad company aforesaid, they say : that in June, 1871, the defendants had in hand about fifty-eight thous- and dollars; that about that time the Board of Directors of said road having dis- covered erroneous estimates of the value of the work done by contractors upon their road to a large amount, ordered the defendants to suspend all further pay- ments to contractors, and among such to the plaintiff, on account of their work, until a re-estimate thereof should be made; that upon said re-estimate having been made, by which the said railroad company saved about $27,000 (twenty- seven thousand dollars,) judgment was taken by the contractors including the plaintiff for their demands against said railroad company, upon the re-estimate of their work, and according to that valuation of their work this plaintiff has been paid on an order from the Board of Directors aforesaid, b}' the defendants. Wherefore defendants demand judgment for the costs of this action. A. T. & T. F. Davidson, M. Ekwin, WOODFIN & McLoiTD, Attorneys for Defendants. N. W. Woodfin being duly sworn, says : I have heard read the foregoing answer, and know the contents thereof; that the same is true of my own know- ledge, except as to matters therein stated on information and belief, and as to those he believes it to be true. N. W. Woodfin. Sworn and subscribed before me the 5 October, 1872 J. E. Reed, C. S. C. Hon. N. W. Woodfin, Chairman of commission : I have the honor to submit the following report as to monies received and disbursed as treasurer of the commission since my last report, Nov. 14, 1871 : 1872. Receipts— on hand last report, $44,769 99 Received, R. Y. McAden, 55,000 00 1872. Disbursed to G. M. Roberts, treasurer, March 1st, J. L. Henry, balance expense as commissioner, " '■ N. W. Woodfin, expense to New York, February 21, Franklin Ellis, January 26, J. L. Henry, expense to Washington, " 28 A. T. Davidson, " " 1871, Dec. 1st, N. W. Woodfin, balance traveling expense, 1872, August 15, " " " Trustee, R. W. Pulliam, •' " "CM. McLoud, Attorney of Trustees, <99,769 99 79,398 66 609 00 500 00 300 00 500 00 500 00 583 07 500 00 500 00 ' 100 00 200 00 1,000 00 100 00 100 00 .500 00 600 00 250 00 2,175 00 125 00 (* 9 July 6th, Franklin Ellis, " 8th, N. W. Woodfin, Attorney, 1871, Dec. 13, G. W. Wagner, Esquire, " Nov. 24, " " 1872, July 8, A. T. Davidson, Attorney, " "10, Marcus Erwin, Attorney and expenses, " " " W. G. Candler, Commissioner, Expense account from Nov. 14, 1871, to Oct. 1st, 1872, R. W. Pulliam, expense to New York, $88,340 73 On hand October 1st, 1872, 11,219 26 This does not include the cost of the Brooklyn suit and other expenses paid "by our Bankers. Respectfully submitted, W. W. Rollins, Treasurer of Commission. . At Fall Term, 1872, of the Superior Court of Buncombe county, the following order was made by the Court, to wit : M. T abler, ) VS. > The Western Division of the W. N. C. R. R. Co., et al. ) It appearing by affidavits filed by defendants that they cannot obtain justice < to S po^k"coI ed in any of the counties of the 12th Judicial District. It is ordered by the Court with the consent of the parties that this case be transferred to the county of P. Ik in the 10th Judicial District to be tried, and that the Clerk of this Court make a full, true and perfect transcript of the record of the proceedings hereto- before had therein, and transfer the same under the seal of this Court to Polk county on or before the next Term thereof. (Signed.) J. L. Heney, Judge, &c. The above order applies to this and three other cases against the said defend- ants, one in favor of M. J. Fagg & Co., one in favor of E. Clayton, and one in favor of Martin Shea. On the 26th day of April, 1873, the following transcript of the record of the proceedings in this cause in Polk county was sent to this Court by the Clerk of the Superior Court of Polk county Transcript fm , , . rt» ■ 1 1 , •. Polk to Bun- under his official seal, to wit : combe. State of North Carolina,) Polk County.) Second Monday in March, A. D. 1873, it being the 10th day of March in said year. Be it known that a Superior Court was this day opened and held for said county of Polk at the Court House in Columbus 2nd Monday in March, A. D. 1873, Hon. G. W. Logan, Judge present, and presiding when the following proceedings were had, to wit : ('9 2 ) N °To lk CA C E o°u^:} spring Ter m , 18 73. M. J. Fagg & Co., VS. The Western Division of the W. N. C. R. R. Co., et al. The Clerk will enter these cases on his Docket, and the award of the referees in each case, and also enter that the cases will be heard at Rutherfordton on Monday the 17th instant, on a motion by plaintiff's attorney for judgment ac- cording to award of referees; also enter the agreement signed by Attorneys Erwin, Bynum and Vance. G. W. Logan, J. S. C. v. 12 March, 1873. North Carolina, \ Polk County. f M.J. Fagg & Co., 1 The Western Division of the W. N. C. R. R. { Company, et al. J .Agreement to refer. In this case it is agreed by plaintiff and defendant to refer the matter in dispute to J. G. Martin, W. D. Rankin and Thaddeus Coleman, to ascertain and re- port Avhat is due to the plaintiff, it anything, from the defendants and their award, or a majority of them, to be a rule of Court and judgment final, to be entered thereon. It is further agreed, that all objections to the form of the ac- tions and the parties thereto, are waived, and judgment for any sum ascertained to be due the plaintiffs, if any, shall be rendered against the said Railroad Com- pany, and not commissioners sued as co-defendants. This agreement applies to the suits pending in the same Court, Martin Shea, E. Clayton and M. J. Fagg & Co., respectively, against said defendants, being three suits. Marcus Erwin, Bynum, \ Z. B. Vance, for Defendants.) Attorney for Plaintiff. It is accordingly so ordered. The above entry is made as of the 6th of December, 1872. Superior Court ; / Polk County. ) M. J. Fagg & Co., 1 The Western Division of the W. N. C. R. R. | Report of Referees. Company, et al. J By an agreement of attorneys dated Dec. 6th, 1S72, this action was referred to J. G. Martin, Win. D. Rankin and Thaddeus Coleman to ascertain and re- port what is due to the plaintiff, if anything, from the defendant. This case, end the others referred to in the same paper, were brought to trial before a\\ the referees from the 12th of February, 1S73, to the 19th of the same month, in Asheville, counsel for both parties attending and evidence received. On the 20th of Februarv the referees met for consultation as to the general rules that ( m ) should control them in making their award, and all finally agreed, but no case was taken up. They adjourned to meet on the 25th of February, 1873, then to take up and report on each case. Before that day Mr. Rankin was so serious- ly injured as to be totally unable to meet the other referees. Under these cir- cumstances, the undersigned having regard to the words of agreement to refer, met on the 6th, 7th and Sth of March, 1S73, and took up each case and exam- ined it. j n this case we find there is due, from the defendants to the plaintiff, the sum of sixteen hundred and seventy-three dollars and thirty-five cents, ($1,673.35,) with interest thereon from July 10th, 1872. J. G. Martin, T. Coleman, Referees. Superior Court; I Polk County.) M. J. Fagg & Co., 1 vs. I The Western Division of the W. N. C. R. R. [ Company, j By consent of parties this action is ordered to be transferred to the county of Buncombe, to be docketed in said county of Buncombe, in the Superior Court, at its Spring Term, 1873. The case of Ephraim Clayton and the same defendants, M. J. Fagg & Co., and the same defendants, and Martin Shea, and the same defendants, will be likewise transferred to the county of Buncombe. G. W. Logan, J. S. C, 9th District. 10th April, 1873. State of North Carolina, | Polk County. f I, R. S. Abrams, Clerk Superior Court for Polk County, do hereby certify that the foregoing proceedings is a true copy of the case to which it refers. In testimony whereof I have hereunto set my hand and seal of office, at Columbus, this the 26th of April, 1873. [Seal.] R. S. Abrams, Cl'k Sup'r Court for Polk County. At Spring Term, 1S73, of the Superior Court of Buncombe county, the following judgment was rendered in this cause, to- wit : Superior Court, ) Spring Term, 1873. Buncombe County. f M. J. Fagg and W. R. Ray, partners under the firm-] Judgment name of M. J. Fagg & Co., vs. The Western Division of the Western North Caroli- na Railroad Company. ( l 9A) At a Superior Court held at the Court House in Asheville, on the 21st day April, 1873. Present, Honorable J. L. Henry, Judge of the Eleventh District. This action having been brought to a trial by the Court, a trial by Jury having been waived, and a decision therein rendered for the plaintiffs, it is now, on mo- tion of Z. B. Vance and J. H. Merrimon, counsel for the plaintiffs, M. J. Fagg and W. R. Ray, adjudged that the plaintiffs recover of the defendant sixteen hundred and seventy-three dollars and thirty-five cents, ($1,673.35,) °f w hich sixteen hundred and seventy-three dollars and thirty-five cents ($1,673.35) * s principal, and bears interest from July 10th, 1872, and costs of action, to be taxed by the clerk, with interest on said principal till paid. (e J. L. Henry, Judge nth Judicial District. Transcripts of this judgment, and executions thereon, were is- sued to Haywood and Madison, and execution to Buncombe, on the nth day of November, 1873. Transcript and execution to Jackson, Nov. 13th, 1873. Executions to Haywood, Jackson, Madison and Buncombe, May 23d. 1S74. The executions to Madison, Haywood and Buncombe, were levied on the property of the defendants, and returned as follows, to-wit : Execution to Madison : January 30th, 1874. I this day levy this execution on the Railroad and bed, and right of way, cro s-ties, and all things pertaining to said Road, and shall offer for sale, at the Court House door in Marshall, the 1st Saturday in March next. Date above. March 7th, 1874. This day offered sale of the above, and postponed until the first Saturday in May. A. G. Tweed, Sheriff. Returned by order of the plaintiffs' counsel. My fee $1.10. A. G. Tweed, Sheriff. Execution to Haywood returned by order of the Court. S. J. Shelton, Sheriff of Haywood County. August 3rd, 1874. Suspended by order of plaintiffs' att'y, J. H. Merrimon. S. J. Shelton, Sh'ff. Levy on Bun- I hereby levy this execution on the franchise, road-bed, right of way, and all property attached to the franchise of the W t _i Division Wee n Return of sale. ( 195 ) North Carolina Railroad Company, and also on a lot of land of said Company, situated in the town of Asheville, whereon the Post Office is now located, ad- joining lands of E. T. Clemmons and others, to satisfy this execution, and one in favor of E. Clayton, and one other in favor of Martin Shea, and one other in favor of M. Tabler. The levies on the three last named executions are hereby referred to. This, 2nd day of June, 1S74. J. M. Young, Sheriff. The above property was sold as follows : The lot of land was put up and sold for five hundred and fifty dollars. The road-bed was then sold for one thousand dollars, and the franchise, and other property, was sold together for the balance of this execution; and one in favor of E. Clayton, one in .favor of M. Tabler, and one in favor of Martin Shea, and all cost. This, nth day of July, 1S74. J- M. Young. Sheriff. I this day after due advertisement, sold the property levided on under this execution at public auction at the Court House door in the town of Asheville to E. Clayton, M. Tabler, Martin Shea, M. J. Fagg and W. R. Ray, who were the highest bidders for the sum of $1,229.69, being the full amount uf principal, in- terest and all cost due on this execution, and one in favor of E. Clayton, one in Another ret'rn favor of M. Tabler, and one in favor of Martin Shea, see plaintiff's receipt for of sale. $1,874.15. I retain my fees and commission, and pay into office $56.00. The sale of the property was made on this execution, and the other three executions named in this return, and the proceeds of sale satisfied them all in full of prin- cipal, interest and all cost. The purchasers bid for the franchise of said railroad company for the entire period of its existence, paying therefor, together with the other property levied on the full amount of all the judgments on which it was sold, and all cost. This July 11th, 1874. J. M. Young, Sheriff. This judgment is registered on the Judgment Docket as follows, to wit : Received eighteen hundred and seventy-four dollars and fifteen cents in full r . Judgment re- of this judgment. July 11th, 1874. M. J. Fagg & Co. ceipted. By M. J. Fagg. Know all men by these presents that whereas at the Spring Term, A. D., 1873, of the Superior Court of Buncombe county, and the State of North Caro- lina, E. Clayton recovered judgment against the Western Division of the Wes. Sheriffs deed tern North Carolina Railroad company for the sum of four thousand seven hun- a ° d ' thersf S dred and fifty-one dollars and ehdUy cents ($4,751.80,) with interest on said sum from the 10th day of July, A. D., 1872, and for fifty-eight dollars and forty cents cost, and M. J. Fagg & Co. recovered judgment against said railroad com- pany for one thousand six hundred and seventy-three dollars and thirty-five c .1 s, it interest on said sum from the 18th day of July, 1872, and for $58.43^ costs; and Martin bhea, recovered judgment against said railroad company for the sum of one thousand three hundred and forty-three dellars and eighty-six cents, with interest on said sum from the 9th day of July, A. D., 1872, and for (i 9 6) $58.40 costs, upon which judgments, executions issued from the said Court on the 23rd day of May, 1874, directed to me as Sheriff of said county, and where- as, by virtue of said writs of executions, and in order to satisfy the same, I did afterwards, to wit: on the 2nd day of June, A. D., 1874, levy on the right, title, and interest of the said Western Division of the Western North Carolina Railroad company, on its franchise, road-bed, right of way, and all the property attached to its said franchise, and also one lot of land situate in the town of Asheville whereon the post office buildingis now located, adjoining lands of E. T. Clemmony, and others, and whereas, afterwards, to wit : on the 6th day of July A. D., 1874, by virtue of said writs of executions, having duly advertised the premises according to law, I offered the aforesaid property for sale at public auction at the Court House door in Asheville, and for want of bidders, duly post poned said sale from day to-day until the 11th day of July, A. D., 1874, on which said last named day I sold the aforesaid property at public auction at the Court House door in Asheville to E. Clayton, M. Tabler, Martin Shea, M. J. Fagg and W. R. Ray who were the highest bidders and purchasers at said sale for the sum of twelve thousand two hundred and ninety-five dollars and sixty- nine cents ($12,295.69,) being the full amount of the said judgments hereinbefore mentioned, and set forth, and all costs, which was the highest sum then bid therefore, I, James M. Young, Sheriff as aforesaid for and in consideration of the premises and for the further consideration of the said sum of twelve thous, and two hundred and ninety -five dollars and sixty-nine cents to me in hand paid by the said E. Clayton, M. Tabler, Martin Shea, M. J. Fagg and W. R. Ray, the receipt whereof is hereby acknowledged, have bargained, sold and conveyed and by these presents do bargain, sell and convey unto the said E. Clayton, M. Tabler, Martin Shea, M. J. Fagg, W. R. Ray and their heirs, successors and assigns all the right, title, interest of the said Western Division of the Western North Carolina Railroad company in its franchise for the Eastern Division of its existence, its road-bed, right of way and all the property attached to the said franchise, with all the immunities and privileges which by law belong to said corporation, and also the lot of land hereinbefore mentioned belonging to said corporation situated in the town of Asheville where the post office is now loca- ted adjoining the lands of E. T. Clemmons and others. To have and to hold the aforesaid property, with all the appurtenances thereunto belonging unto the said E. Clayton, M. Tabler, Martin Shea, M. J. Fagg and W. R. Ray and their heirs, successors and assigns to their only use and behoof forever, and I, the said J. M. Young, Sheriff as aforesaid, do hereby covenant to and with the said E. Clayton, M. Tabler, Martin Shea, M. J. Fagg and W. R. Ray, their heirs, successors and assigns that I will warrant and defend the title to the aforesaid property in as full and ample a manner as I am empowered to do by virtue of my office. In testimony whereof, I, the said J. M. Young, Sheriff as aforesaid, have hereunto set my hand and seal, this the 11th day of July, A. D., 1874. J. M. Young, [Seal.] Sheriff Buncombe County. State of Noeth Caeolina,) t „ ., T > .„t > „ 4 .„ n . Buncombe County! \ In the Probate CourL Be it remembered that on the day of September, A. D., 1874, before ( i97 ) the undersigned Judge of Probate for said county, personally came J. M. Young, She. iff of said county, who signed the foregoing and acknowledged the due execution thereof by him as his act and deed. Therefore let the said deed with this certificate be registered. J. E. Reed, Judge Probate. Received and registered Sept. 30th, 1875, at 3:40 o'clock P. Mjj J. R. Patterson, Register. August 18th, 1877, stockholders of the Western Division met pursuant call ot of the President Rollins. 20,369 shares of private stock, and 13,578 of State stock by Dr. J. A. Reagan, -'who held authority from the Governor as State proxy," represented, a quorum. They elected four Directors on the part of the stockholders, viz : Thos. L. Clayton, (one of the Trustees,) James H. Rum- bough, C. M. McLoud and C. A. Mcholls. On motion of M. J. Fagg. it was resolved that the Directors of this company be instructed to employ competent counsel to investigate the liabilities to the company of George W. Swepson and resolution.' of any other person, and to bring suits if thought advisable in order to enforce and secure the rights of the company in the premises. On motion of M. J. Fagg, it was resolved that this meeting express thanks unanimously to Major Rollins for his untiring energy displayed in the prosecution of the suits in Florida and elsewhere, and the stockholders suggest him as President of the company in the election of to-day. (198) Ns ( r 99) ( 300 ) THE A. T. DAVIDSON JUDGMENT. - BUNCOMBE COUNTY, — J.N THE SUPERIOR COURT. A. T. Davidson, ) 'VS. - Summons. The Western Division of the W. N. C. R. R. Company. ) 'Phe State of North Carolina, To the Sheriff of Buncombe County, — Greeting : You are hereby commanded, to summon the Western Division df the Western North Carolina Railroad company, the defendants above named, if they be found within your county, to be and appear before the Judge of our Superior Court, to be held for the county of Buncombe at the Court House in AshevLle on the 4th Monday after the 4th Monday of April, 1872, and answer the complaint which will be deposited in the office of the Clerk of the Superior Court of said county within the first three days of the next term thereof, and Jet the said defendants take notice that if they fail to answer the complaint within that time the plaintiff will take judgment against them for the sum of one thousand and fifty-five dollars and twenty-eight cents, with interest on one thousand dollars from the 1st day of May, 1872, to the day of payment. Herein fail not, and of this summons make due return. Given under my hand and the seal of said Court, this 11th day of April, 1872. [Seal.] (Signed.) J. E. Reed, Clerk of the Superior Court of Buncombe County. Which said summons is endorsed as follows : I accept service within as Treasurer W. D. W. N- C. R. R. Company. (Signed.) G. M. Roberts. Sec. & Treas. W. D. N. C. R. R. Co. J Superior Court, ) Buncombe County. J A. T. Davidson, Plaintiff, ) Against ( r . • . The Western Division of the W. N. C. R. R. f ^ om P iamt - Company. J The plaintiff alleges : i. That the defendant is a corporation properly constituted by law, and as such may sue and be sued. 2. That the defendant is justly due to the plaintiff the sum of one thousand and fifty-five dollars and twenty-five cents, for professional services as Attor- (SOI) ney of said Railroad Company. Therefore, the plaintiff demands judgment for one thousand and fifty-five dollars and twenty-five cents, with interest on one thousand dollars from the ist day of May, 1872. (Signed,) - J. H. Merrimon, Pl'ffs' Attorney. County of Buncombe ; ) In the Superior Court. J A. T. Davidson, . 1 At a Superior Court held at the Court Against | House in Asheville, in the county of The Western Division of the West- j- Buncombe, on the 22d day of April, ern North Carolina Railroad | 1872. Company. J Present, Honorable J. L. Henry, Judge nth District. This action having been brought, and the defendant having accepted service of the summons, and a judgment therein rendered for the Plaintiff, it is now, on. motion of J. H. Mer- rimon, counsel for Plaintiff, A. T. Davidson, adjudged that the Plaintiff recov- er of the Defendant, one thousand and fifty-five dollars and twenty -five cents, of which one thousand dollars is principal, and 55 dollars and twenty-five cents is interest, and costs of action to be taxed by the Clerk, with interest on said principal till paid. (Signed,) J. L. Henry, Judge, &c. Said judgment is docketed in Superior Court Clerk's office, of Buncombe County, in Book C, of Judgments, page 243. Executions were issued to Buncombe, Madison and Haywood counties, and transcripts of Madison and Haywood, May 22nd, 1872. On the execution to Haywood County, the following endorse- ments are made : For the want of personal property, I have levied this execution upon the real property of the defendant mentioned within, situated in the county of Haywood, along the line of location, and track and road-bed, and other lands adjoining the same, purchased or condemned to the use of the defendants. I also levy this execution on the franchise, and all rights, privileges and property, there- unto, or in anywise thereto belonging, or appertaining to t.ie said defendant corporation. May 27th, 1872. (Signed,) A.J.Murray, Sheriff of Haywood County. The lands levied on were sold on this and various other Superior Court Fi fa., at the Court House in Waynesville, on the 6th day of July, 1872, and Ed- ward F. Reesser, Ag't for Plaintiff, was the last and highest bidder, at $520.00. No money received by me but my fees. • (Signed,) A. J. Murray, Sh'ff. Levy. ( 202 ) An execution was in the hands of the Sheriff of Buncombe on the 8th day of July, 1872, when he sold, upon the Clayton execu- tion, but no levy or return was endorsed thereon. Another execution was issued to Buncombe County on the 3rd day of Nov., 1875, upon which the following endorsements are made : Seven hundred dollars of the within named judgment was paid me by the defendant not long after the judgment was rendered, for which the Treasurer holds toy receipt. Dec. 6th, 1875. (Signed,) A. T. Davidson. "I hereby levy this execution on the franchise, road-bed and right of way, and all property att-iched, and appurtenant to the franchise of the Western Division of the Western North Carolina Railroad company, and a^o on the lot of land belonging to said railroad company situated on Main street, in the town of Asheville in Buncombe county, North Carolina, where the post office is now situated, and a new building is in process of construction, adjoini g lands of E. T. Clemmons and. others. This Nov. 3rd. 1875. (Signed.) J. M. Youxg, Sheriff," Sale - "After due advertisement and notice to defendant according to law, I sold at the Court House door iu Asheville, Buncombe county, at public auction, to the highest bidder for cash, ou Monday the 6th clay of December, 1875, the lot of land described in the above levy, when Thomas D. Carter became, and was the last and highest bidder at the sum of fifty dollars, and I also sold the franchise, road-bed. right of way, superstruction, and all property attached and appurten- ant to the franchise of the Western Division of the Western North Carolina Railroad company, and Thomas D. Carter being the last and highest bidder, he bidding the full amount due on said execution, and all costs, and agreeing to take said franchise, &c, for the entire period of the existence of said franchise, was by me declared the purchaser, and said Carter having complied with his bid, I conveyed to him the said franchise and property. This 6th Dec, 1875. (Signed.) J. M. Yorxo, Sheriff." Know all men by these presents that whereas at Spring Term, 1872, of the _ ._ , Superior Court of Buncombe county in the State of North C irolina, A. T. Sheriff's deed _ ■ . , , . , . J , __ _. , . , A ' toT.D. Car- Davidson recovered judgment against the western Division of the \\ estern North Carolina Railroad company for the sum of one thousand and fifty-five dollars and twenty-five cents, with interest on one thousand dollars from the said 22nd dav of April. 1872, and for cash, seventeen dollars and fifty cents, and afterwards the said defendant paid seven hundred dollars on said judgment: upon which judgment a writ of execution issued from said Court on the 3rd ter. ( 2 °3 ) day of November, 1875, directed to me as Sheriff of said county, and whereas by virtue of said writ of execution and in order to satisfy the same, I did after- ward, to wit : on the 3rd day of November, 1875, levy on the right, title, and interest of the said the Western Division of the Western North Carolina Rail- road company in its franchise, road-bed, right of way, and all the property, appurtenant and attached to its said franchise, and also one lot of land situate on Main street in the town of Asheville in said county of Buncombe whereon the post office building is now located, adjoining lands of E. T. Clemmons and others, and whereas, afterwards, to wit: on the 6th day of December, A. D., 1875, by virtue of said writ of execution, having duly advertised the premises according to law, I offered the said property for sale at public auction at the Court House door in Asheville, as follows, to wit : I first sold the lot of land to Thomas D. Carter for the sum of fifty dollais, in the said Thomas D. Carter being the highest bidder, and that being the highest bid therefor, and the said sum not being sufficient to satisfy the said execution and costs, I immediately offered the said franchise, road-bed, right of way, and all the property appurten- ant and attached to said franchise of the Western Division of the Western North Carolina Railroad company to the highest bidder for cash. I explained that he would be the highest bidder who would satisfy the execution and ail costs, and take said franchise for the shortest period of time, and receive during the time all such fare and tolls as the said the Western Division of the Western North Carolina Railroad company would by law be entitled to demand; and I sold the said property to the said Thomas D. Carter, who bid the full amount of said execution and c^-sts, and agreed to take the said franchise for the full period of its existence, (no one agreeing to take it for a shorter period of time,) and receiv- ing during the time all such fare and tolls as the said the Western Division of the Western North Carolina Railroad company would by law be entitled to demand. Now, therefore, I, James M. Young, Sheriff as aforesaid, for and in consideration of the sum of three hundred and eighty-eight dollars ($388) in hand paid by the said Thomas D. Carter, the receipt whereof is hereby acknow- ledged, the said sum being the balance due on said execution, including costs, after deducting seven hundred dollars as if paid on 22 April, 1872, and the sum ol fifty dollars bid for said lot, have granted, bargained, sold and set over, and conveyed, and by these presents I do grant, bargain, sell, set over and convey unto the said Thomas D. Carter, his heirs, successors and assigns, all the right, title and interest of the said the Western Division of the Western North Caro- lina Railroad company in its franchise for the entire period of its existence, its road-bed, right of way, and all the property attached or appurtenant to the said franchise, with all the immunities and privileges which by law belong to the said corporation, and in consideration of the sum of fifty dollars to me paid by the said Thomas D. Carter, the receipt whereof is hereby acknowledged, I hereby bargain, sell and convey to the said Thomas D. Carter and his heirs the said lot of land belonging to said corporation, situate on Mam street in the town of Asheville in Buncombe county, North Carolina, whereon the Post Office building is now located, adjoining lanus of E. T. Clemmons and others, to have and to hold the aforesaid property, the said franchise, for and during the entire period of its ex- ( 204 ) istence. and the said lot in fee simple, with all the appurtenances thereunto, belong unto the said Thomas D. Carter, his heirs, successors and assigns, to his and their only use and behoot forever. And j , the said James M. Young Sheriff, as aforesaid, do hereby covenant to and with the said Thomas D. Car- ter, his heirs, successors and assigns, that I will warrant the title to the afore- said property in as full and ample a manner, as by virtue of my office I am em- powered to do. In testimony whereof, I, the said James M. Young, Sheriff, as aforesaid, have hereunto set my hand and seal, this, the 6th day of December, 1875. [Seal.] J. M. Young, Sheriff Buncombe County. North Carolina, ) In the Probate Court. Buncombe County.) Be it remembered, that on this, the 7th day of December, 1875, personally appeared before me, J. E. Reed, Judge of Probate, in and for the county of Buncombe and State aforesaid, James M. Young, Sheriff of said county, to me known to be the person who executed the within and foregoing deed, and acknowledged the due execution thereof by him, and for the purposes therein contained. Therefore let the said deed with this certificate be registered. « J. E. Reed, Judge Probate. Registered February 3rd, 1S75. J. R. Patterson, Register. Asheville, N. C, Aug. 14, '72. I gave Col A. T. Davidson a draft on Charlotte, N. C.,for $40.00 ; Maj. W. \V. Rollins rendered to G. M. Roberts, Treasurer, an account of moneys fur- nished to Col. A. T. Davidson, with no receipt furnished to me of, to-wit : $ 500 00 The above by G. M. Roberts, Treas., 40 00 $ 540 00 $700. Ashevilie, N. C, Aug. 14, '72. Rec'd of G. M. Roberts, Treasurer W. D. W. N. C. R. R. Co., seven hun- dred dollars, part payment on judgment in my favor, against said Company, in Buncombe Sup'r Court. A. T. Davidson. ( 2 °5) (206) (207) RECORD OF G. M. ROBERTS' SUIT. Buncombe County ; > In the Superior Court.) G. M. Roberts, 1 n-u -lit ^ ams j^. • • c ., „, XT - (^ -c D 1* Summons for Relief. The Western Division of the W. N. C. R. R. Company, J The State of North Carolina, To the Sheriff of Madison County — Greeting : You are hereby commanded to summon the Western Division of the West- ern North Carolina Railroad Company, the Defendant above named, if it be found within your county, to-be and appear before the Judge of our Superior Court, at a Court to be held for the county of Buncombe, at the Court House in Asheville, on the 2nd Monday in August, 1880, and answer the complaint which will be deposited in the office of the Clerk of the Superior Court of said county, within the first three days of the next term thereof, and let the said De- fendant take notice that if it fail to answer the said complaint within the time prescribed by law the Plaintiff will apply to the Court for the relief demanded in t -ie complaint. Hereof fail not, and of this summons make due return. Given under my hand and seal of said Court, this 31st day of March, 1S80. [Seal.] (Signed,) E. W. Herndon. Clerk Sup'r Court Buncombe County. Said summons endorsed as follows : We acknowledge ourselves bound unto the Western Division of the Western North Carolina Railroad Company, the Defendant in this action, in the sum of two hundred dollars, to be void, however, if the Plaintiff shall pay to the De- fendant all such costs as the Defendant may recover to the Plaintiff in this ac- tion. Witness our hands and seals, this 31st day of March, A. D., 1S80. [Seal.] (Signed,) G. M. Roberts, [Seal.] (Signed,) M. J. Fagg. R-eceived April 1st, 1SS0, served April 1st, 1880, by reading contents of this summons, to W. W. Rollins, President of the Western Division of the West- ern North Carolina Railroad Company. A. G. Tweed, Sheriff Madison County. North Carolina, \ Superior Court. Buncombe County.) G. M. Roberts, ] Complaint. Against I The Western Division of the W. N. C. R. R. j Company. J (208) The Plaintiff alleges : i. That the Defendant was a corporation chartered by an act of the Gene- ral Assembly of North Carolina, entitled, "An Act to amend the charter of the Western North Carolina Railroad Company," ratified the 19th day of Au- gust, 1868, and was duly organized under said charter, and had its principle place of business, and held its usual meetings in the town of Asheville, in said county of Buncombe. 2. That by the first section of an act of the General Assembly of said State entitled, "An Act to repeal any and all acts creating, recognizing, or continu- ing in existence, the Western Division of the Wesstern North Carolina Rail- road Company," it was enacted, the said charter of the said Defendant corpora- tion was repealed and annulled. 3. That the Plaintiff is a creditor of the said Defendant corporation, and at the Spring Term, 1876, of the Superior Court for Buncombe county, State aforesaid, he recovered judgment against said Railroad Company, for the sum of four thousand and two hundred dollars, and costs of action, no part of which sum has been paid. 4. That, as Plaintiff is informed and believes, the property and assets of said corporation consists mainly of certain interests owned by it in two Rail- road Companies in the State of Florida, which said interests are now involved in litigation, which may not be determined for several years. 5. That in order to provide for a speedy and proper adjustment and settle- ment of the affairs of the said amended corporation, it is necessary to have ap- pointed receivers or trustees of the same, to the end that they may be invested with rights, power and duties specified in the sixth Section of Chapter 26 of the Revised Code of North Carolina. (Signed,) H. A. Gudger, Pl'ff's Att'y G. M. Roberts being duly sworn says : 1 have heard read the foregoing com- plaint and know the contents thereof; the same is true of my own knowledge, except as of matter therein stated on information and belief, and as to those matters I believe it to be true. (Signed.) G. M. Roberts. Sworn and subscribed before me this 5th day of April, 1880. (Signed.) E. W. Herndon, Clerk, [Seal.] By Wm. R. Whitson, D. C. Buncombe County. North Carolina, ) Superior Court. Buncombe County. > To Fall Term, 1880. G. M. Roberts, VS. Answer. The Western Division of the W. N. C. R. R. Company. The defendant, the Western Division of the Western North Carolina Railroad company answering the complaint of the plaintiff herein says : — 1. That the allegations of the first paragraph of the complaint are untrue in ( 2G>9 ) so far as it is therein al legedthat the defendant corporation had its-existence 7 by vir- tue of the said act of. August 19, 1868; but it is true that the defendant corporation was duly organized and had its principal place of business, and holds its usual meet- ings at Ashevill«- ;and it Still maintains said organization, and has its principle place, of businpjss.abdiholds. its .usual meetings at said town of Ashev!ill>, and all this under and by virtue of its charter as contained in an act of the General As- sembly of the said State of North Carolina, entitled '-'an -act-to "incorporate tlie Western North Carolina Railroad company,?' ratified the 15th day of Februsiry, 1855, and the various Sets subsequently passed by Saidi General 1 Asseihb!y v amendatory to the said charter. ., ' _ . . . . T 2. That it is true that the said General Assenibly of the said State, by the act referred to in the second paragraph of the complaint, undertook to repeal arid annull the said charter Of the said defendant' corporation, but this defendant, denied that the said act had the effect to repeal its said charter or in any manner abridge,' destroy or annull its corporate rights or 'power derived, under and, by ; virtue of said charter, the said act being unconstitutional in all its parts and provisions. , . ' i 3. The defendant admits that the plaintiff is a creditor of the defendant cor- poration for the amount alleged in the 3rd paragraph of the complaint, and in ; manner and form as therein alleged. .. .. 1 4. Defendant also admits the matter alleged in the fourth paragraph of the r COniplaint iii manner arid form as therein, alleged. -,,-... * f 9P a The defendant further answering the complaint herein, and in reference to' the matter alleged in the 5th paragraph of tlie same, says : that while it fivers, that its -said charter lias not been repealed, and 'cannot by any' legislation • •'■' be repealed 'br ; a 1 tm ulled, yet nevertheless, as the question as to the effect ; of said act undertaking such repeal is still unsettled, and is iiivolved in difficulty arid /doubt, and may' not t be determined in a Court of" last resort; for several years to pome; the defendant corporation submits, to sucfr action as 1 tlie Court may see proper to take. with reference to the appoint- ment of ~a receiver or receivers, till such time as the validity of the said repealing. act shall be properly and finally determined by judicial decision. 6. The defendant further answering says, that at present it has no assets or monies hi hand, and that its only property consists in its franchise, and the interests it has 1 in 'the Florida Railroads aforesaid; wiieli depend entirely on the result -of the litigation now pending in reference to said interests. If said litig- ation. results -favorable, then its assets win be more than one hundred thousand dollarsybut if unfavorably, the only property left will be its franchise and right of way as aforesaid. '<' .' > ■r u ■ Q ■ I i J '■' \il iJ . ids Ion . - Wherefore defendant demands judgment : l.J'TjhatSthe said corporation charter has not been repealed. i^oJ^JP'tfit ^,£^erJ^J;r^g^i^pefl^^i^4tft€bs^ ')i!j "k>i3VO09T[ o1 8fCl ififo 1: i j i-ilj-slf; 9fIT 'i .:'■. :.., ; ...■.■■ ta ,BJajvi noo ,abnod .■.•■.■■:.•' .■■■.• ,,".'.'. :. i n ,■■ . vrij vd La/i .■ '•>:.. 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North Carolina. | Superior Court, Fall Term, 1S79. Buncombe County. j "ase agreed. The Western North Carolina Railroad Company, \ Against > W. W. Rollins. ) Case agreed upon in a controversy without action. The plaintiff claims to recover of the defendant, all the property, rights, cred- its, books, records, papers, moneys, bonds, contracts, effects, and evidences of debt, consisting, among other things, of ninety-four (94) bonds, of one thou- sand dollars each, ($1,000,) being first mortgage bonds of the Florida Oentral Railroad Company, the date of issue being the day of December, 1S76, received by the defendant, in his capacity as President of the Western Division of the Western North Carolina I ailroad Company, and now in his possession. And the defendant, W. W. Rollins, resists such claim. The following are the facts : The foundation of this controversy is the claim of the plaintiff growing out of the adoption of the General Assembly, at its session in the year 1879, of an act entitled, "An Act to repeal any and all acts creating, recognizing or con- tinuing in existence, the Western Division of the Western North Carolina Railroad Company," ratified the 13th day of March, 1S79. In pursuance of this act, the Governor of the State of North Carolina, on the 15th day of May, 1879, made the demand required by said act, which de- fendant refused to comply with. The further facts of this controversy arise out of Legislation creating the Western North Carolina Railroad Company, and all acts amendatory of the charter of said Company, or in auywise effecting said Company. It is admitted, that at the time the act of 1S79, above referred to, was passed, the indebtedness of the Western Division of the Western North Carolina Rail- re. d Company amounted to fifty thousand dollars, or more, and that said in- debtedness still subsists, a large portion of which is in the form of judgments against the said Western Division of the Western North Carolina Railroad Company. The State subscribed for $666,666.66% of the capital stock of the Western Division, and issued bonds to this amount under the amendatory acts. It is admitted, that the private stockholders of said Western Division of the Western North Carolina Railroad Company own, of paid up stock of said Company, about fifty thousand dollars, ($50,000,) and that forty-nine thousand dollars ($49,000) of this stock was paid for by a sale and transfer of the Bun- combe Turnpike Road by the Buncombe Turnpike Company. The questions submitted to the Court upon this case are as follows : 1. Is the first Secticn of Chapter 230, Laws of 1879, valid ? 2. Is the second Section valid ? 3. Is the third Section valid ? (2i5) If the Court shall decide for the plaintiff or defendant, as to either of these questions, judgment shall be pronounced according to law. (Signed,) John S. Henderson, Attorney for the W. N. C. R. R. Co., J. L. Henry, C. Ms McLoud, J. H. Merkimon, ot Counsel for Deft. Superior Court, [ Buncombe County. | Western North Carolina Railroad Company, ^ vs. W. W. Rollins. W. W. Rollins, the defendant in the above entitled action, and John S. Hen- derson, a Director of the Plaintiff Corporation, and under its direction prose- cuting this action, being duly severally sworn, say, each for himself, that the controversy mentioned in the foregoing case is real, and the proceedings in good faith, to determine the rights of the parties. Aug. 20th, 1879. (Signed,) W.W.Rollins, John S. Henderson. Sworn and subscribed, this, 20th August, 1879. E. W. Herndon, C. S. C. Western North Carolina Railroad Company. vs. W. W. Rollins. This was a controversy submitted without action, and heard before Graves, Judge, at Fall Term, 1879, Buncombe Superior Court. His Honor filed a written judgment, which is herewith sent as part of the case. The plaintiff being dissatisfied with that portion of the judgment which de_ clared the 2d and 3rd Sections of the Act of 1879, relerred to in the case agreed, prayed an appeal therefrom, which was allowed ; and the defendant being dis- satisfied with that portion of the judgment which declared third Section of said Act valid, likewise appealed to the Supreme Court. It was agreed that notice of appeal should be waived by both parties, and that each party should file bond on appeal in the sum of thirty dollars. Henderson and Davidson, for Pl'ff. McLoud and J. H. Merrimon, for Defendant. (&■! OPINION .OF THE SUPREME: COURT. ,zoaa3aKaH .8 stko^ ,.o'J .JT ~H M .77 ■. . i ! naUA State of Np.RTjt Carolina ; ) January Term, 1SS0. Supreme Court.) The W,,N ; ,- C. R; R ; ; Cq., 1 January Term, 1SS0. J"1jY?-toi banuo'O la r W. W. Rollins. J 82, N. C, p. <:2*. ( . ' ' : 1 01 I'l '• Controversy submitted without action under section 315 of the code, and heard at Fall Term, 1879, of Buncombe Superior Court, before Grazes, S£. / The plaintiff company claims fhe right to recover all the property .of the Western Division of the Wester^ North Carolina Railroad Gtfrftpany in the hands of the de/endant who was president of said Western • Division, and the defendant' resists the .same upon the ground that the act of assembly dissolving, the "Western Division and transferring its property, to the plaintiff, is unconsti- tutional; and void. ' Upon consideration of the question, His Honor was of bpiniofi with" defendant", arid, the plaintiff appealed from the judgment. Messr&fiJgg^ft&fMWdecai, J. S. Henderson, T. F. Z?avidsAH'Hi\d W. H. Ma lone, for lPfeij*$i.T Messrs. J. H. Merrimon, M~ ~ Erxyin and C. M. AfcLotfd, for, Defendant. Sm3k$CO$!t9aK*3.H -W .3 ©pinion of the The Western North Carolina Railroad was incorporated and formed under- Supreme C t, I ."'I'".'!.)-- 'Li. ..'■.. f- - h ... -■ .:-.---. an act of the General Assembly, ratified on the 15th day of February, .1S55, to construct and operate a Railroadffrom the town of Salisbury "to -some- point on the Frencji Broad-River, beyond. the Blue Ridgq, .and if- the .Legislature snaHnereaftef determine., to such Loint as it. shall designate at, a future ses- sion." Acts, 1S54, 55 ch. 2^8. : By s uxes^ive. amendments,, and after- surveys, the projected Road" was extended Westward by branches, one of which was, to, terminate "at a point on the line of the Blue Ridge Railroad on- the Tennessee River, or on the Tennessee line at or. near, Ducktoyvn in the county of Chero* ; kee" ,'" c and' the other,, 'ajor near Paint Rock." Apts 1S5S, 59 eh- 170, _ "py the apt of August, 1S6S,. the contemplated Road was.severed at the French BroacfTEciver into ,f twb separate and distinct divisions^" one to be called the Eastern Division and to .embrace the Road to the east ; : the other, the Western DrvTsiohVto embrace, the dive.rgen.t lines to the west, of the^Rj^trr. . The proper- , ty. appropriations and subscription of stock' are left in possession of t le East- ern 'Division,' to be used exclusively in the completion of -its part of the divided Road, under the management of the existing board of directors, while the West- ern Division is placed under the direction of another board of directors, consti- tuted by appointments of the State and individual stockholders in the new organization under the act, to whom is entrusted the "selection of its own offi- cers and agents, a distinct treasurer, and otherwise independent of the other ;" and for its construction, funds are to be raised by stock subscriptions, as in the original act of incorporation, and the aggregate capital of the Western North (217) Carolina Railroad Company, for the two divisions, is increased to a sum not exceeding twelve millions of dollars. Private Acts, 1S6S, ch. 24. This statut ; was renacted and confirmed by two subsequent acts, one ratified December 18th, 1868, and the other January 29th, 18G9. Acts 1868 '69, chap. 7 and 20. repealed by Act of April 5th, 1871, Acts 1870-'71, chap. 249, and again restored with modifications and the repealing act itself r pealed by the act of February 8th, 1872, and power was conferred upon the revivi d company "to lease or sell, or otherwise dispose of the whole or any part of said road to any person or corporation, on such terms as may be agreed on" in order to its early competition; acts 1871 '72, cliap. 150. On March 13th, 1879, was passed the act whose validity is called in question in the present suit, the first section of which repeals the acts of August 19th, 1868, of January 29th, 1869, and of February 8th, 1872, by special mention, "and any and all other acts and parts of acts, creating, recognizing, or continu- i g in existence the Western Division of the Western North Carolina Railroad Company." The second section is in these words : -'That all the properly, rights, credits* rights of action and effects that now exist in favor of the said Western Division' of the Western North Carolina Railroad company, or which may result from auy existing matters, causes, circumstances or contingencies shall become abso- lutley the rights and property of the Western North Carolina Railroad company; and the said Western North Carolina Railroad company is hereby authorized and empowered to prosecute, defend and manage any and all suits, and actions pending in the Courts of this State in the Courts of the United States or the Courts of any other State or Territory, in reference to the property, rights and credits of the said Western Division of the Western North Carolina Railroad company; provided the said Western North Carolina R lilroad company shall not be liable or responsible for any debt, contract, obligation or other liability of the said Western Division of the Western North Carolina Railroad company, beyond the sum it shall actual 1 .}' realize and receive from the transfer of property rights, credits, &c, provided for in this section. The third section requires officers, directors and agents of the dissolved com- pany, within thirty days after demand of the Governor, to surrender to the B.~ rectors of the Western North Carolina Railroad company "all books, records, papers, moneys, bonds, property, contracts, effects and evidences of debt" in their possession, or under "their control, and makes their failure or refusal a mis- demeanor, punishable by fine or imprisonment. The defendant, who was, at the time of the passing of the act, president of the annulled company, has in his hands ninety-four first mortgage bonds, of one thousand dollars each, of the Florida Central railroad company, which with other of its effects are sought to be recovered in this action. The claim is resis- t d on the ground of the unconstitutionality of the act, and for the further fact disclosed in the case agreed, that there are outstanding debts of the company, most of them reduced to judgments, fifty thousand dollars or more in amount, which the defendant alleges attach as a trust to the funds he holds, and must be paid therefrom. The State subscribed six and two third millions to the capital (2lS) stock of the Western Division. and bonds were issued therefor, while private stockholders own of paid-up stock fifty thousand dollars, whereof all expect one thousand dollars was paid by a sale and transfer of the property of the Buncombe Turnpike company. Upon this statement of facts two questions only are pres- ented for determination. 1. Has the general assembly the power to destroy by a mere enactment the existence of the organization designated the "Western Division of the North Carolina railroad companj'" ? and if it has, 2. Can it transfer and vest the property of + he annulled company in a new corporation, bearing the name, but not being in fact the same, as that formed undep the act of 1855, so as to entitle the plaintiff to sue and recover ? The solution of these enquiries disposes of the two appeals. First — As to the repealing power exercised in the first section and its effect : The constitution of 1868 contains this provision, viz: "Corporations maybe formed under general laws, but shall not be created by special act, except for municipal purposes and in cases where, in the judgment of the legislature, the object of the corporation cannot be attained under general laws. All general laws and special acts, passed pursuant to this section, may be altered from time to time or repealed. Art. VIII. § 1. And the term "corporation," as used in the article, is defined in section three, "to include all associations and joint stock companies having any of the powers and privileges of corporations, not possess- ed by individuals or partnerships." Invested with the attributes conferred by the various enactments which form and shape the Western Division, as a separate and distinct organic body, with capacity to contract debts, to sue and be sued, to mortgage the road to secure borrowed money, to lease and sell it, to appoint its own officers and agents and manage its own affairs, (with* a succession which preserves its own integrity amidst changes among its members) if the possession of these facilities do not constitute a corporation, it will be difficult to point out :.ny absent that would have the effect, within the purview of the constitution. But it is not material to solve the question, so earnestly and elaborately pressed in the argument, whether the Western Division by the effect of the legislation became and was a corporate body itself, or an agency and branch only of the original Western North Carolina railroad company, since in cither case the effect of the legislation is the same. If it was but an agency, the same efficient power that created could destroy and again restore to life, as was done by antecedent acts. If it was a corporate body, it was formed under the controlling force of the constitu- tion, and remained subject to the repealing power of the general assembly. The case mainly relied on in opposition to the power to dissolve is that of New Jersey v. 2'ard, 95 U. S., 104. with a brief review of which we will be content. In 1835, the Morris and Essex railroad company was chartered. In March, 1865, an amendment was made authorizing the construction of a branch road. Two years later another amendment was added. In 1846 the legislature enacted "that the charter of any corporation which should thereafter be granted by the legislature should be subject to alteration, suspension and repeal in the (2I 9 ) discretion of the legislature." In March, 1863, an act was passed for the assess- ment and taxation of the full amount of the capital stock of corporations, paid in and its accumulation, and the right to pass and enforce this enactment was the point before the Court. Mr. Justice Miller, speaking for the Court, uses this language : "The case before us differs from those iu which, by the con- stitution of some of the States, this right to alter, amend and repeal all laws creating corporate privileges becomes an inalienable legislative power. The power thus conferred cannot be limited or bargained away by any act of the legislature, because the power itself is beyond legislative control. The right iu this case to amend or repeal legislative grants to corporations, being itself but the expression of the will or purpose of the legislature for one particular session or term of the State of New Jerse} r , cannot bind any succeeding legislature which may choose to make a grant, or a contract not subject to be ahered or repealed. * * * * It follows that unlike the constitutional provision in other States, it is in New Jersey a question in every case of a contract made by the legislature, whether that body intended that the right to change or repeal it should inhere in it, or whether, like other contracts, it was perfect and not within the power of the legislature to impair its obligation." The reasoning of the Court, so far from denying concedes the power to modify or dissolve a corporation, when reserved in the fundamental law in force when the corporation was formed, and maintains the competency of the general as- sembly, notwithstanding a previous general enactment of similar import to enter into an inviolable contract, and that whether this is done in a particular case is a question of construction and intent. Tomlinsdn v. Jessup, 15 Wall, 454; Ho/yoke v. Lyman, Id., 500, Miller v. Stale, Id., 498. Secondly. As to the assigment of the property to the plaintiff and the right of recovery from the defendant : The dissolution of the Western Division, as an organized body, posssessing property and owing debts, renders necessary the appointment of a suitable person to take charge of, collect and apply its assets in the discharge of its liabilities. When the dissolution is brought about by a judg- ment of the Court, a receiver is appointed for the purpose, who acts under its supervision and control. When it is the result of a lawful act of legislation, it is reasonable that the repealing act should make provision for such administra- tion, and we see no reason why the plaintiff should not be thus appointed as well as a natural person. The transfer to the re-incorporated Western North Carolina railroad company is absolute, it is true, but (as we understand the proviso) in full recognition of the trusts in favor of creditors and their right of satisfaction therefrom. Its language clearly imports this in declaring that the plaintiff company shall not be liable or responsible for any debt, contract, oblig- ation or other liability of the said Western Division of the Western North Caro- lina railroad company, beyond the sum it shall actually realize and receive from the transfer of property, rights, credits," &c, a distinct implication of such liability to the extent Snd value of the funds received. But in the absence of such provision, the trusts in favor of creditors and of stockholders, if there be any surplus, would attach to the transferred property and the plaintiff could be ( 220 ) compelled to discharge the trusts therefrom. The creditors as such, are not complaining of this portion of the act, and so far as we know acquiesce in the transfer. They are not represented by the contesting defendant, nor is he the protector of their rights in the premises. He can only resist the legal operation of the act which takes from him the possession of that which he no longer holds as an officer, and places it in other- hands. His objection lies solely to the change of trustees, unaffected by inhering trusts for others. The validity of the act is fully sustained by the case of Read v. Frank-ford Batik, 23 Maine, 318. On March 29th, 1S41, the legislature passed an act re- pealing the charter of the defendant and appointing receivers who were required to demand and receive from the officers, the property of the bank in their hands. On April 16th lollowing, another act was passed requiring creditors in order to entitle them to participate in the distribution of the assets and prevent their claims from being barred, to exhibit and prove them to the receivers on or be- fore the 1st day of July thereafter. The repeal was by virtue of a power re- served in a general law passed in 183 1. The bank was incorporated afterwards and subject to its provisions. Some creditors who had previously attached were the plaintiffs in the action, asserting their lien. The judge delivering the opinion of the court, says : "The obligation of the contract between the plain- tiffs and the bank was not impaired by a repeal of its charter, but the mode of obtaining indemnity for its violation was changed. The bank was created by the legislature, and by the charter there was no provision for the* prosecution of suits against it, if that charter should be declared by the same power forfeited and void. But a mode has been provided in the repealing act, by which credi- tors are enabled to obtain satisfaction for their claims to the extent of the means existing therefor." Sustaining the validity of section two, it is needless to consider that which follows and enforces compliance with appropriate penalties. For the same rea- sons it must also be sustained. It is to be observed that the defendant sustains towards the controversy the relation of an officer of an extinct organization and sets up a defence not open to the debtor, but to the creditor only, who, as we have before remarked, may be content with the legislation and substitution of the plaintiff as trustee in his place. While it is true that each corporator may object to the repeal or to any material modirication of the provisions of a charter granted for other than municipal purposes, and constituting a legislative contract protected by the con stitution of the United States, yet in the absence of complaint, acquiescence in the change may be inferred, and ultimately its acceptance by the corporators. Mills v. Williams, n Ired., 558 ; State v. Petivdy, 2 Jones Eq., 396. It must therefore be declared that there is error in the ruling of the court that sections two and three of the act of March 13th, 1S79, are inoperative and void; and the plaintiff's exceptions to the ruling are sustained. Judgment must there- fore be entered that the defendant deliver to the plaintiff the bonds and other effects and property of Ihe Western Division of the Western North Carolina Railroad Company, as claimed in the action, and it is so Ordered. Error. Reversed. ( 221 ) In the same case upon defendant's appeal : Smith, C. J.: The matters involved in this appeal are considered and discussed in the opin- ion in the plaintiff's appeal, and for the reasons therein stated it must be de- Defendant's clared there is no error in the ruling of the court to which the defendant ex- a PP eal - cepts. and his exception is overruled. A true copy. [Seal.] Test : Wm. H. Bagby, Clerk. North Carolina, } January Term, 1S80. Supreme Court.) The Western North Carolina Railroad Company, ) Against W. W. Rollins. Complaint. This cause came on to be argued upon the transcript of the record from the Superior Court of Buncombe County, and upon consideration thereof this Court is of opinion that there is error in the record and proceedings ot said Superior Court. Therefore it is adjudged by the Court here that the opinion of the Court, as delivered by the Honorable W. N. H. Smith, Chief Justice, be certified to the said Superior Court, wit.i a copy of this judgment, to the end that the proper orders may be made in said Superior Court. And it is adjudged further, that the plaintiff recover of' the defendant, and that the defendant, the said W. W. Rollins, without delay, deliver to the plain- tiff, the said the Western North Carolina Railroad Companj', all the property, rights, credits, books, records; papers, moneys, effects, contracts, evidence of debt and bonds, including ninetv four first mortgage bonds of the Florida Cen- tral Railroad Company, received by him, the said Rollins, in his capacity as President of the Western Division of the Western North Carolina Railroad Company ; It is further adjudged that that plaintiff recover of the defendant, the said Rollins, the costs of the appeal tn this Court incurred, to-wit : The sum of fourteen dollars, ($14,) and let execution issue therefor. A true copy. [Seal.] Test : Wh. H. Bagby, Clerk. V ( 222 ) / (22 3 ) (224) EXTRACTS FROM CHAPTER 26, REV. CODE, ON CORPORATIONS. Corpnrat'ns to Sec 5. All corporations, whose charters shall expire by their own limina- years alter tion, 3r shall be annulled by forfeiture or otherwise, shall nevertheless be con- p're^etc 5 linu 3d bodies corporate, for the term of three years after the time when they would have been so dissolved, for the purpose of prosecuting and defending suits by or against them, and of enabling them gradually to settle and close their con- cerns, to dispose of and convey their property, and to divide their capital stock: but not for the purpose of continuing the business, for which such corporations may have been established. Sec. 6. When the charter of any corporation shall expire or be annulled, as provided in the preceding section, the Court of Equity for the county wherein When corpora- shall have been the usual meetings of the expired corporat on, or the (out etc" r 6 c nvers wn i c h s ' iau adjudge the forfeiture of charter, on application of any creditor of or trustees to such corporation, or of any stockholder or member thereof, at anv time within be appointed. ., „ ., . *.!_-'■ the said three years, may appoint one or more persons to be receivers or trustees of and for such corporation, to take charge of the estate and effects thereof, and to collect the debts and property due and belonging to the corporation; with power to prosecute and defend, in the name of the corporation, or in the name Their powerf. f j^ receivers or trustees, all such suits as may be necessary or proper for the purposes aforesaid; and to appoint agents under them, and to do all other acts, which might be done by such corporation, if in being, that may be necessary for the final settlement of the unfinished business of the corporation; and the powers of such receivers may be continued beyond the said three years, and as Equity juris- long as the Court shall think necessary, for the purposes aforesaid. receiver^or* ^ ^he sa ^ Court shall have jurisdiction in equity of such application, and trustees. of all questions arising in the proceedings thereon; and make such orders, in- junctions, and decrees therein, as justice and equity shall require. 8. The said receivers shall pay all debts due from the corporation, if the Receivers to funds in their hands shall be sufficient therefor; and if not, they shall distribute distribute sur- the same ratably among all the creditors, who shall prove their debts in the pluSl manner that shall be directed by any order or decree of the Court for that pur pose; and if there shall be any balance remaining after the i ay nent of said debts, the receivers shall distribute and pay the same to and among th)33, wh > shall be justly entitled thereto, as having been stockholders or members of the corporation, or their legal representatives. 9. If any judgment or decree, at law or in equity, shall be rendered against a corporation, the plaintiff may sue out a distringas ox fieri facias, as he may think proper, which may be levied, as well on the current money, as on the ( 22 5 ) goods, chattels, lands, and tenements of such corporation; and if the judgment whatexecut's or decree be against any railroad or other corporation, authorized to receive fare or to if 5116 - an(i 3 J ' what may be tolls, the franchise of such corporation, with all the rights and privileges, thereof, sold.— k. 8. c. so far as relates to the receiving of fare or tolls, and aK) all other corporate pro- " S- " pert} - , real and personal, may he taken on execution and sold under the rules regulating the sale of real estate. 10. In the sale of the franchise of any corporation, the person, who shall fl e j> me d ih e satisfy the execution, with all costs thereon, or who shall agree to take such highest bid'er franchise, for the shortest period of time, and to receive during that time all such fare and toll, as the said corporation would by law be entitled to demand, shall be considered as the highest bidder. 11. The officer making sale shall by deed convey to the purchaser all the Officer maki'g immunities and privileges which by law belong to the corporation, so far as nonvey the relates to the right of demanding fare and toil: and the officer shall, immediately rig ?| ?, f fa 5f after such sale, deuver to the purchaser possession of all the corporate property connected with the franchise, belonging lo such corporation, in whatever county the s-ame may be situated,' and the purchaser may thereupon demand and receive, to his own use, a 1 the fare and toll, which may accrue, within the time limited by the term of his purchase, in the same manner and under the same regulations, as such corporation was before authorixed to demand and receive the same. 13. Any person who may have purchased, or shall, under the provisions of Purchaser of a , . , j. i , j- , • j! mt 1 franchise to this chapter, hereafter purchase the franchise of any railroad or other corpora- have same tion, and the assignee of such person, may recover in such action as the corpora- c^r!w^ation S lion might have brought, any penalties imposed by law for an injury to the etc. franchise or for any other cause, and which such corporation would have been entitled to recover, during the time limited in the said purchase of the franchise; and during that time, the coiporation shall not be entitled to prosecute for such penalties. 13, The corporation, whose franchise shall have been sold as aforesaid, shall, in all other respects, retain the same powers and be bound to the discharge of , , , -, • i ,. . ^ , , • , ,. ,. • , ,. ■ , labilities of the same duties, and liable to the same penalties; and forfeitures, as before such corporation to _i_ continue after OPINIONS CONSTRUING THE FOREGOING SEC- TIONS. Mary Taylor v. Alonzo T. Jerkins, 6 Jones, 316. A sale of the franchise of a corporation, under the loth section of the 26th chapter of the Revised Code, must be predicated on a hid for the entire sum demanded S'li the execution, with costs, and the only competition allowed by said act, is ts to who will take the income (226) for the shortest length of time, paying the whole debt and costs, demanded in the execu- tion. Where, therefore, the bid was for a small fraction of the debt, though, for a term far short of the limit of the franchise, it was Held that the sheriff had no power to convey the fran- chise to the bidder. Action of assumpsit, tried before Heath, J., at the Fall Term, iS<;S, of Craven Superior Court. The action was brought by the plaintift", to recover certain tolls for the trans- portation of produce on the Neuse River, alleging that she had bought the fran- chise and right of receiving toll, tiat had theretofore belonged to the Neuse Rivev, Navigation Company, and the only question considered by this Court was, whether she had so purchased the right of the corporation. Upon that point, the plaintift" showed the recovery of a judgment for $1,616, in favor of R. X. Taylor, and a writ of fieri facias, commanding the sheriff, that of the goods and chattels, lands and tenements of the Neuse River Navigation Co., he cause to be made. Sic. On which writ, was endorsed as a return of the said writ, by the sheriff, as follows: "Levied, this April 39th, 1S56, on the Neuse River Naviga- tion Company's right and franchise, h: and on the River Neuse, locks and dams, and all appurtenances thereu to belonging, or in any wise appertaining to the said company," and further, was endorsed thereon as follows: "Sold for $10." The plaintift" then offered in evidence, a deed from Norman Jackson, the sheriff of Craven county, professing to "grant, bargain, sell, alien, set over and confirm to the said Mary Taylor, her executors, &c, all the said estate, right, claim and franchise of the said Neuse River Navigation Co. before mentioned, as levied on and sold, with every privilege and appurtenance, to have and to hold the same, to the said Mary Taylor, &c, for and during, and until the full end and term of eighty-nine years." The extent of the franchise, as it appeared from the charter, is perpetual. R. JV. Taylor, a witness for the plaintiff, stated that he attended the sheriff's sale of the franchise in question, and as the agent for his mother, bid it off for $10, to have it for eighty-nine years, and that was the lowest bid, as to time, for which the franchise would be taken. Among various other objections to the plaintiff's right to recover, the follow- ing is only deemed to be material : "5th. That the plaintift" never purchased the franchise of the Neuse River Navigation Company, or bid the same oft" bv herself or agent ; that she never satisfied the execution, or took the said fran- chise for the shortest period of time to receive such tolls and fare as the said company would, by law. be entitled to demand, and was not the highest bidder for the same." The Court being of opinion that the plaintiff was not entitled to recover, or- dered a nonsuit, from which she appealed. Haughton, McRae and E. G. Haywood for plaintiff. Badger, J. W . Br van, Stephenson, Donnell and Greene for defendant. Battle, J. Upon the trial, the right of the plaintift* to recover was resisted, upon many grounds, one of which, is so clearly fatal to the action, that we have ( 2 27 ) deemed it unnecessary, if not improper, to consider any other. The 5th of the defendant's grounds of objection is thus stated : "That the plaintiff never pur- chased the franchise of the Neuse River Navigation Company, or bid the same off by herself or agent ; that she never satisfied the execution, or took the said franchise for the shortest period of time, and to receive such tolls and fare as the said company would, by law, be entitled to demand, and was not the high- est bidder for the same." In order to understand the force of this objection, it is necessary to premise, thatprior to the enactment of the Revised Code, the fran- chise ot a corporation, such as that of a railroad, or navigation company, could not be levied upon and sold under a writ of ftera facias, or any other writ of execution, known either to our common, or statute law. In the celebrated case of State v. Hives, 5 Ire. Rep. 306, the Court say : "We agree that the franchise itself (that is of the Portsmouth and Roanoke Railroad Company) cannot be sold. It is intangible and vested in an artificial being of a particular organization, suited, in the view of the Legislature, to the most proper and ben- eficial use of the franchise ; and therefore it cannot be assigned to a person, natural or artificial, to which the Legislature has not committed its exercise and emolument." After stating that though the franchise of the corporation could not be taken and sold under execution, any vested property it might have in anything tangible, either personal or real, might be so seized or sold, however useful, or even indispensable it may be to the enjoyment of the franchise, the Court add : "It may be very unfortunate, and cau?e much loss, in a pecuniary sense, to arrest the exercise of a franchise, by depriving its proprietor of an estate, or thing needful to its exercise, when of the two, the franchise, or the tangible thing, the former is much the more valuable. We regret, sincerely, that it has hitherto escaped the attention of these companies and of the Legislature, that some act was necessary, in order that such sales, when unavoidable, might be "made with the least loss to the debtors, and the greatest advantage to the cred- itors and purchasers, by providing for keeping the franchise with the estate. Or, if it so please the Legislature, an act might provide for putting the road into the hands of a receiver and subjecting the Income to the creditors, instead of the estate in the land, stripped of the franchise." The intimation thus thrown out from such high authority, no doubt induced the Legislature, in enacting the Revised Code, to provide for the sale of the franchise of a railroad or other corporation, under a "Writ of fieri facias, issuing on a judgment or decree against it. This is done by the ninth and several sub- sequent sections of the 26th chapter ot the Revised Code, concerning "Corpo- rations." The ninth section declares that the franchise of the corporation "with all the rights and privileges thereof, so far as the receiving of fare or tolls, and also all other corporate property, real and personal, may be taken on exe- cution and sold under the rules regulating real estate." By the tenth section, which is the one upon which t.ie question in the case arises, it is enacted as fol- lows : "In the sale of the franchise of any corporation, the person who shall satisfy the execution, with all costs thereon, or who shall agree to take such franchise, for the shortest period of time, and to receive during that time all (228) such tare and toll as the said corporation would by law be entitled to demand shall be considered as the highest bidder." The plaintiff" claims to be the pur- chaser of the franchise of the Neuse River Navigation Company, at an cxecu » tion sale of the same upon a bid far below the amount of the execution and costs, and the question is, can she be considered as the highest bidder within the meaning of the above recited section of the act. The plaintiffs council con- tend that she can, and they insist that a fair construction of the section is, that the officer who conducts the sale, must offer the franchise until he gets the high- est bid which any person present is willing to make, and that he is then to offer the franchise to any person who is willing to take it for the shortest time at that price. In other words, his auction is to be a singular compound of the English and the Dutch ; beginning with the former an ! ending with the latter, There are two fatal objections to this construction. One is. that it loses sight altogether of the requirement to pay and satisfy the execution and costs. The second is, that until the execution and costs are satisfied, the sheriff or other of- ficer will, whenever the bid is for a period of the franchise short of the whole duration, have to go on selling it out by piece-meal, until the whole is disposed of. Such a mode of selling, certainly, was never in the contemplation of the Legislature. It cannot be denied that the language of the section is somewhat obscure, and this obscurity is caused by the attempt of the writer to make it concise ; but by attending to the object which he had in view, we can discover^ Avith unerring certainty, the meaning of the provision. A prominent purpose was, undoubtedly, to have the execution and the costs thereon satisfied by the sale of the franchise. To accomplish this purpose, the section distinctly desig- nates two persons, either of whom, may, according to the circumstances, be the highest bidder, and therefore, the purchaser. The first is the person who, if there be no other bidder, will take the corporate franchise for the whole period of its existence upon the terms of paying off the execution and costs. But if any other person will, upon the same terms of paying the execution and costs, take the franchise for a shorter period, then he shall be considered lo be the highest bidder, and therefore the purchaser. The section consists of only one sentence, and that is mantfestly eliptical. if expressed without the elipsis, the sentence will read thus : In the sale of the franchise of any corporation, the person who shall satisfy the execution, with all costs thereon, shall be considered the highest bidder : Or the person who, upon paying such execution and costs, shall agree to take such franchise tor the shortest period of time, and to receive during the time all such fare and tolls as the said corporation would by law be entitled to demand, shall be considered the highest bidder. Thus expressed, the object of the Legislature is obvious, and its meaning clear beyond a doubt. Neither the judgment creditor, nor any other person can become a purchaser under the ex- ecution, unless he satisfied it, together with all the costs thereon ; but by pay- ing the execution and costs, he may become the purchaser unless some person will over-bid him bv agreeing to take the franchise upon making the same pay- ment lor a shorter period, and he who will take it for the shortest period, shall, in the language of the act "be considered as the highest bidder." If this con- struction of the section be correct, (and about that we have no doubt,) the plain- ( 22 9 ) tiff was not a purchaser of the franchise which she claims, and consequently her action fails. She was therefore, properly nonsuited, and the judgment must be affirmed. Per Curiam, Judgment affirmed. Gooch vs. McGee, 83 N. C. Rep, 59. Execution Against Corporation — What Property Subject to. The real estale acquired by a public corporation in exe-cise of a delegated right of emi- nent domain, and ueeessrry for uses in which the public is concerned, cannot be sold un- der execution apart from the franchise and its incidents, so as to give the purchaser a ti- tle 10 the property divested of all the duties and obligations assumed by the company. (State v. Kives, 5 Irtd., 297, cited and commented on.) Civil Action to recover land, tried at Spring Term, 1879, of Halifax Superior Court, before Eure, J. Case agreed : In the year 1812. the legislature granted a charter to the Roan- oke navigation company, under an act entitled "an act lor improving the navig- ation of Roanoke river from the town of Halifax to the Virginia line," and a company was duly organized thereunder at a meeting of the stockholders held in the town of Halifax on the fourth Monday of October, 1815; the proceedings of which meeting were ratified by the legislature at its session of 1816. And said corporation has since fully performed and complied with the provisions of its charter and the acts amendatory thereof. On the 23d of October, 1818, a tract of land belonging to the heirs of Daniel Weldon, deceased, (of which the land in dispute is a part) was condemned under the provisions of said charter, and an act subsequently passed (1817). Said land was necessary for the purposes of the company, was then paid for and entered, and has ever since been in pos- session of said company. The locus in quo (which is particularly described in the case) is occupied by the defendant, under a lease from said company. In 1878, judgments were recovered against the company in favor of certain per- sons, executions issued thereon, and at the sheriff's sale in 1879, the plaintiff became the purchaser. Under the act of 1874 '75, ch. 198, an action was in- stituted in Halifax Superior Court (and is uo.v pending) for the dissolution of the company, appointment of a receiver, &c. If upon these facts the Court shall be of opinion that the plaintiff is entitled to recover, tnen judgment shall be rendered in his favor for the possession of the land and for costs; but if other- wise, then a judgment of nonsuit shall be entered. The Court adjudged in favor of plaintiff and ordered a writ of possession to issue, and the defendant appealed. Messrs. Day &• Zollicoffer, Gilliam c£- Galling, Mullen & Moore and J. B. Batchelor, for plaintiff. Mr. Theo. N. Hill, for defendant. Smith, C. J. The plaintiff purchased at a sale under execution against the ( 2 3°) Roanoke navigation company, certain land which had been theretofore condemn- ed for its use, under the provisions of the act of Incorporation, including the bed covered by the waters of the canal, at its terminus near Weldon, and in this suit seeks to recover possession. The defendant had leased th^ land from the com- pany for a period which had expired before the day of sale, but still continued in possession, refusing to surrender to the plaintiff. Under an act of the general assembly entitled "an act for the dissolution of the Roanoke navigation company," passed at the session of 18T4-'75, ch. 198, proceedings bad been instituted in the Superior Court of Halifax and the com- plaint filed, but no further action taken at the date of sale. Two objections are urged ''for the appellant : 1. That the proceeding to annul the corporation and dispose of its property directed by the statute supersedes and renders litigatory the interference of a creditor, and that no title passed by the sheriff's deed; and 2. That the canal bed, as severable from its general property and franchise, is not subject to execution. We propose to consider the last proposition first. In State v. Rives, 5 Ired., 297, a sale of so much of tbe road bed of the Portsmouth and Roanoke railroad company as was within the county of Northampton, under an execution at the instance of a judgment creditor, was held to be legal, and the purchaser to have acquired title to the land. This was because of the assumed want of any other remedy for tbe creditor, and by force of the statute which authorized a plaintiff to sue out against a corporation debtor, "a distringas or fieri facias, as he may think proper, and tbe said writs of distringas ox fieri facias may be levied as well on the current money as on the goods, chattels, lands and tenements of the said corporation." Rev. Stat., ch. 26, § 5. The result of upholding this diver sion of the property from the original and intended purposes of its condemnation to the use of the company, and the injustice done the former owner, whose damages were lessened by the advantages to be derived from the construction of the proposed improvement, conducted the mind of the late Chief Justice, who presided at the trial in the Superior Court, to the conclusion that the sale was not authorized by law. In delivering the overruling op.nion in this Court, Ruf- fin, C. J., declaring that '"the legislature can prescribe what shall or shall not be the subject of execution," proceeds to say : "We agree that the franchise can- not be sold. It is intangible and vested in an artificial being, of a particular organization, suited in the view of the legislature to the most proper and bene- ficial use of tbe franchise, and therefore it cannot be assigned to a person natu- ral or artificial, to which the legislature bas not committed its exercise and emolument," and he adds : "We regret sincerely that it bas hitherto escaped the attention of these companies and of the legislature, that some act was neces- sary, in order that such sales, when unavoidable, might be made with the least loss to the debators and with the greatest advantage to tbe creditors and pur- chasers, by providing for keeping up tbe franchise with the estate." The correctness of the general proposition that the property, real and personal, of corporations formed for the prosecution of objects of personal benefit, as that belonging to individuals, may be seized and by sale appropriated to the payment ( 2 3 r ) of its debts, does not admit of question. Between them the law makes no dis- tinction, as has been repeatedly decided. Maryland v. Bank, 6 Gill & John., 205; Ev. /... c(V.. to. Buf. //yd. Association, G4 N. Y., 561; ^_aeen v. Vict. Park Co., 41 E. C. L. R., 544. But so far as the opinion, except by force of the statute, extends the liability to the estate, of corporations created for public purposes, indispensable to the exercise of the conferred franchise and to the per- formance of correlative duties, it is not in harmony with adjudications elsewhere of the highest authority, and we are not disposed to enlarge the sphere of its operation. Some of the cases on the subject will be noticed. In Ammant v. President, <&c, Turnpike Co., 13. Serg. & Rawle, 2l0, the plaintiff bought at execution sale, "all the right, title, interest and dawn," of the company, "'of, in and to ten miles of its road," with specified limits, and it was held that he acquired no property by his purchase. Tilguiman, C. J., declaring that "the inconvenience would be excessive, if the right of the company could be cut up into an indefinite number of small parts and invested in individuals,'' and that the turnpike company "alone were confided in, and they alone looked t "), for a faithful performance of the important duties incumbent upon them." In Gue v. Tide Water Canal, 24 How., (U. S.) 257, execution had been levied "on a ho ;se and lot, sundry canal boats, a wharf and sundry other lots,'' and an injunction asked to restrain the sale. Chief Justice Taney delivering the opinion, uses this language : "The property seized by the marshal is of itself of scarcely any value apart from the franchise of taking toll with which it is connected m the hands of the company, and if sold under this fieri facias without the franchise, would bring scarcely anything, but would yet, as it is essential to the working of the canal, render the property of the company in the franchise, now so valuable and productive, utterly valueless," and he adds : "It would be against the. principles of equity to allow a single creditor to des- troy a fund to which other creditors had a right to look for payment, and equally against the principles of e luity to par nit hi n t) d33troy ta3 value of the pro- perty of the stockholders by dissevering from the franchise property which •was essential to its useful existence." In Coe v. R. R. Co., 10 Ohio, 372, the rule is thus laid down : "When power is given to acquire an interest in real estate, for the single and exclusive purpose of the exercise of a franchise, and particularly when to acquire such interest there is a delegation of the power of eminent domain, the interest can- not be separated from the use to which alone it can be applied, and if the franchise cannot be convej'ed, neither can the interest in real estate, with "Which it is connected." A very forcible and clear view of the subject is presented by Woodward, J., 'in R. R. Co. v. Co/well, 39 Penn., 337. "Lands bought and not dedicated to corporate purposes are bound by the lien of judgments and are liable to be levi- ed in execution and sold by the sheriff in the same manner, and with the same effect as the lands of any other debtor. As to land which has been appropria. ted to corporate objects, and is necessary for the full enjoyment and exercise of any franchise of the company, whether acquired by purchase or by exercise of the delegated power of eminent domain, the company hold it entirely exempt \ Kb* ) from levy and sale, and this on no ground of prerogative or corporate immunity, for the company can no more alien or transfer such land by their own act than can a creditor by legal process, but the exemption rests on the public interests involved in the corporation. For the snke of the public, whatever is essential to the corporate functions shall be retained by the corporation. A railroad compa- ny could scarcely accomplish the end of its being after the ground on which its rails rest had been sold to a stranger." ''The road, with all its appurtenances," remarks Sharswood, J., in the more recent cased of Youngman v. R R. Co , 65 Penn., 278, "being necessary to the exercise of the franchise granted by the sale, could not be levied on and sold under execution on a judgnent agiinst the corporation." TheMistinction between corporate property which can an'i cannot be reached by a fieri facias is well defined and strongly presented in the opinion of Thomp- son, C. J., in a case determined in 1838, (Foster v. Foivler, 60 Penn., 27,) in which, after discriminating between "those corporations that are agencies of the public, directly affecting it, and those which only affect it indirectly, by adding to its property in developing its natural resources or in improving its mental or moral qualities," he says : "Of the former are corporations for the building of bridges, turnpike roads, railroads, canals, and the like. The public is directly interested in the results to be produced by such corporations, in the facilities afforded to travel and the movements of trade and commerce. It is well settled that this use is not to be disturbed by the seizure of any part of their propeily, essential to their active operation-, by creditors. They must recover their debts by sequestering their earnings, allowing them to progress with their undertaking to accommodate the public. This direct benefit to, and accommod- ation of the public clearly distinguish this class of companies from the second class, viz : private corporations, or those in which the public is but ndi rectly interested, such as mining and manufacturing, coal and iron companies, libraries, literary societies, schools, and the like." In our researches we have met with a single case, (Arthur v. Bank, 9 Sine &Mar., Miss., 394,) recognizing the authority and approving the decision in State v. Rives, and in opposition to the current of judicial opinion. The general words of the statute, which to some extent influenced that decision may without violence to their meaning admit of a narrower scope and be re- stricted to the property of private corporations, and to that of public corpora- tions, which may be replaced and is not indispensable to the exercise of tl ( ir necessary functions and the discharge of public duties, upon the distinction taken in the cases cited. But we are not required to question the correctness of the construction which so widely extends the application of the law. It has since been amended in accordance with the suggestion of the chief justice and the very remedy pointed out has been given. The franchises of a class of cor- porations, to which that then under consideration belongs, with all the corporate property may now be reached and its profits applied to the satisfaction of the claims of creditors. To the section, remaining substantially unchanged, has been added the following : "And if the judgment or decree be against a rail- road, or other corporation authorized to receive fare or tolls, the franchise of ( 2 33 ) such corporation, with all the rights and privileges thereof, so far as relates to the receiving of fare or tolls, and also all other corporate property, real and per- sonal, may be taken on execution and sold, under rules regulating the sale of real estate." Rev. Code, ch. 26, § 9. The amendments further provide f ,r the manner of selling and that the sheriff shall "deliver to the purchaser possession of all the corporate property connected with the franchise belonging to such corporation in whatever county the same may be situated." §§ 10, 11. In furtherance of the same policy of preserving intact the corporate privileges bestowed for the public benefit, it has been enacted that purchasers of the pro- perty at a mortgage sale shall ipso facto become a body Corporate and "succeed to all such franchises, rights and privileges, and perform all such duties" as the preceding corporation possessed, except that they shall not incur liability for its obligations. Bat. Rev., ch. 26, §§ 46 and 47. It will be observed that the subjection of the franchise to execution is confined to such corporations as may "receive fare or tolls," leaving all others to the operation of the pre-existing law, and both acts look to the continued association of the property with the franchise. Thus the public interests remain unaffected by proceedings that result in a change of ownership merely, and a transfer of public duties from one to another party. This legislation springing out of the decision in Rives' 1 case, and intended to obviate the inconveniences of a disrup- tion of the company and the loss of those facilities for travel and transportation which it had afforded, must, we think, be deemed an expression of the legisla- tive will, to substitute the new in place of the former remedy. It secures to creditors all their just rights, yet in subordination to the higher public demand for an unobstructed road, and without wrong to those from whom the land has been taken and appropriated to its use. It must therefore be declared that the plaintiff acquired no estate in the land by virtue of the sale and sheriff deed. It is unnecessary to pass upon the other defence. According to the case agreed, a nonsuit must be entered and it is so ordered. Error. Reversed. ( 234 J ( -\35 ) (236) FLORIDA COMPROMISE— WILLARD CONTRACT In the Circuit Court of the United States, Jor the Northern District of Florida : The Western North Carolina Railroad Company, ) I Geoi ge F. Drew, (governor. Trustee. &c. 1 he j Florida Central Railroad Company et al. J The Western Notth Carolina Railroad Company.") I George i . Drew, Governor, Trustee. &c. 1 Ik* J- Jacksonville, Pensacola, and Mobile Railroad [ Company, et al. J J. Fred Schutte, Jans Prius. et al., t vs. | The Jacksonville, Pensacola and Mobile Railroad ( Co., George F. Drew, Governor of the State of | Florida, et al. I Memorandum of an agreement made and entered into, this i-^th day of September. A. D. 1S79. between James W. Wilson, Wil- liam T. Dortch and John S. Henderson, a special committee duly appointed and fully empowered to represent the Western North Carolina Railroad Company, and Charles D. Willard, of the city of Washington. D. C the attorney in fact and solicitor ot the complainants, J. Fred Schutte and others, in the above entitled suits, witnesseth : Whereas, The said complainants, J. Fred Schutte and others, did obtain a decree of sale of the Florida Central Railroad and the Jacksonville. Pensacola and Mobile Railroad, on the 31st day of May. 1879. fro™ which said decree the said Western North Carolina Railroad Company has appealed and filed a su- persedeas bond in said suits ; And whereas. The said complainants, Schutte and others, are desirous of procuring the dismissal of said appeal, and the withdrawal and vacation of said bond, so that a sale of said railroads under said decree shall take place as now advertised, or at the earliest practicable day ; and are also desirous of succeed- ing to all the rights, claims and demands which said Western North Carolina Railroad Company may have acquired in and to the stock and other property of the Florida Central R. R. Company and the Jacksonville, Pensacola and Mobile Riilroad Company, and all the rights, claims and demands of every ( 237 ) kind, nature and description against said Florida Central R. R. Co., now be- longing to the said Western North Carolina R. R. Company, with a vie^of settling, compromising and forever adjusting all litigation, differences and dis- putes between said Western North Carolina R. R. Co., and the said complain- ants, y. Fred Schutte and others, in respect to the said Florida railroads ; And Whereas, The said Western N. C. R. R. Co. is equally desirous of terminating all said litigation and compromising the questions and disputes at issue between said complainants, J. Fred Schutte and others, and said Western North Carolina R. R. Co., in respect to said Florida railroads ; Now, therefore, it is hereby mutually agreed between said parties hereto that in consideration of the premises and the dismissal of said appeal, and the vaca- ting of said supersedeas bond filed by the said W. N. C. R. R. Co., as afore- said, and in full settlement forever o^ all claims of said W. N. C. R. R. Co. upon and against and on account of said Florida railroads, and also the trans- fer of said claims to the said complainants, J. Fred Schutte and others, that the said C. D. Willard, attorney in fact and solicitor of said complainants, hereby obligates himself and agrees to pay to the order of said special committee, for the use and benefit of said W. N. C. R. R. Co., the sum of twenty-five thou- sand dollars, upon the delivery to him or his order of a duly certified copy of the appointment of said special committee accompanied with a copy of the res- olution of the Board of Directors of said W. N. C. R. R. Co., under which said appointment was made, the same to be under the Company's seal, being the resolution vesting said special committee with full and absolute power to settle and compromise said claims and litigation, and also the stipulation or agrecment this day signed by James W. Wilson, Pres't., W. T. Dortch, Solic- tor, of said W. N. C. R. R. Co., and said C. D. Willard, solicitor of said com- plainants, Schutte and others, a copy of which is hereto annexed. It is further agreed that any and all further resolutions or action necessary or required hereafter, in the opinion of said C. D. Willard, from said W. N. C. R. R. Co., in order to make the dismissal of said appeal and vacation of said supersedeas bond operative and effective, shall be supplied on request of said Willard. by said W. N. C. Railroad Company, at his cost and expense. It is further agreed that the sureties on the said supersedeas bond shall withdraw from the same at or before the time of the payment of the said sum of twenty-five thousand dollars. It is also further agreed that the said C. D. Willard, solicitor as aforesaid, shall be vested with full power and authority to proceed in the name of the said Western North Carolina Railroad Company, in the courts or otherwise, in any manner he may deem for his benefit as said assignee, to recover title to any stock, bonds, or other property relating to the said Florida railroads, except as hereinafter mentioned, provided the said W. N. C. R. R. Co. shall be saved harmless from any costs and charges whatever, hereafter arising in any and all proceedings. It is further agreed that the said C. D. Willard, solicitor, shall pay or cause to be paid, all costs or charges that may be, or have been taxed against said Western North Carolina Railroad Company in said suits. It is hereby further agreed and understood that the W. N. C. R. R. Co., ( 33S) does not transfer or surrender anv right or title to #94.00;) of the b^nds of the Florida Central R. R. Co.. heretofore received by W. W. Rollins. President of the W. 1). of the \V. N. C. R. R. Co.. or anv other asseV. that may have been received by him. The said W. N. C. R. R. Co. also reserves the right to pros- ecute the suits now pending, or which may be hereafter instituted by said Company to recover any such assets from the Western Div'n of W. N. C. R. R. Co., iis ofhYers, agents or attorneys. W. N. C. Railroad Company, By James W. Wilson, Pres't, Wm. T. Dortch, Director, John. S. Hendekson, Director. Jas. W. Wilson, Director. C. D. WlLLARl}, Solicitor for Complainants, J. Fred Schutte, and others. Signed, sealed and delivered in duplicate in our presence. Thos. 13. Keogh, S. H. Wiley, ( syj (240) ( 2 4 I ) SUIT OF T. D. CARTER. Buncombe County : — In the Superioe Court. Thomas D. Carter, ) Against [• Summons. The Western North Carolina Railroad Company. ) The State of North Carolina, To the Sheriff of Buncombe County — Greeting : You are hereby commanded, to summon the Western North Carolina Railroad Company, the defendant above named, if it he found within your county, to be and appear before the Judge, of our Superior Court, at a Court to be held for the county of Buncombe at the Court House in Asheville on the 4th Monday after the 4th Monday in August, 1876, and answer the complaint which will be deposi- ted in the office of the Clerk of the Superior Court of said county, within the first three days of the next term thereof, and let the said defendant take notice that if it fail to answer the Si.id complaint within that time, the plaintiff will take judgment for the relief demanded in the complaint. Hereof fail not, and of this summons make due return. Given under my haud and seal of said Court, this 31st day of August, 1876. (Signed.) J. E. Reed, Clerk Superior Court, Buncombe County. Said summons endorsed as follows : Service accepted this 31st. August, 1876. W. W. Rollins, Chm'n Commissioners. Superior Court, ) Fall Term, 1S76. Buncombe County. \ Thomas D. Carter, ) Against [- Complaint. The Western North Carolina F_ailroad Company. ) The plaintiff above named alleges : 1st. That he is the owner in fee of the property, franchises and effects of the Western North Carolina Railroad Company. Complaint. 2nd. That W. W. Rollins, William S. Pearson. W. P. Canady, Samuel McD. Tate, are in possession of the property, franchises and effects of said Western North Carolina Railroad Company, holding and using the same with- out lawful authority so to do. ( 242 ) 3rd. That the said W. W. Rollins, William S. Pearson, W. P. Canady and Samuel McD. Tate withhold the possession of the said property, franchises and effects of the said Western North Carolina Railroad Company from the said plaintiff. Wherefore the said plaintiff demands judgment, ist. For the possession of the property, franchise and effects of the said Western North Carolina Railroad Company. 2nd. For thirty thousand dollars the plaintiff's damages by the withholding of the same, together with his costs. (Signed,) Erwin & Reed, fc Pl'ff's Attorney. Thomas D. Carter, the plaintiff above named, swears that he has heard read the foregoing complaint, and understands the same; that the facts therein stated, of his own knowledge are true, and those stated on information and belief, he believes to be true. (Signed,) T. D. Carter. Sworn to and subscribed this 27th day of September, 1876. (Signed,) J. E. Reed, Clerk. Thomas D. Carter, ) Amended com- vs I ' The Western N. Carolina Railroad Company. J The amended complaint of the plaintiff asks to substitute for the first allega- tion of the complaint on file, the lollowing : ist. That on the 7th day of January, 1S76, he purchased at execution sale, the franchise and corporate property of the said the Western North Carolina Railroad Company, and he is advised and believes that he acquired in himself, by said purchase the legal title to said franchise and property, and that he be- came the owner thereof in fee simple by his said pm-chase. (Signed.) M. Erwix, Att'y. Thomas D. Carter, the plaintiff in the foregoing action, swears that the amended complaint above has been read to him and he understands the same ; that the facts therein stated, as of his own knowledge are true, and those which are stated on information and belief, he believes to be true. (Signed,) Thos. D. Carter. Sworn to and subscribed before me, this nth day of Sept.. 1S77. (Signed,) J. E. Reed, Cl'k. North Carolina, ) Superior Court, Fall Term. 1S76. Buncombe County.) Thomas D. Carter, ) vs. vAnswer. The Western North Carolina Railroad Company. ) The defendants, through W. W. Rollins, the President of the commissioners of the Western North Carolina Railroad Company composed of himself, W. ( 2 43 ) S. Pearson, W. P. Canady and Samuel McD. Tate, answering the complaint of the plaintiff herein, for answer should say : ist. That he is advised and believes that the plaintiff is not the owner in fee or otherwise of the property, franchise and effects of the said Western North Carolina Railroad Company nor any part thereof; and he avers that the first paragraph of the plaintiff's complaint is untrue. 2nd. That lie admits that he and his co-defendants are in possession of the property, franchise and effects of the said W. N. C. R. R., but avers that they hold the same lawfully, under and by virtue of an act of the General Assembly of the State of North Carolina, entitled, ".-Vri Act in relation to the Western North Carolina Railroad," ratified the 13th of March, 1875. 3rd. That the allegation of the third paragraph of said complaint that the defendants withhold the possession of the said property, franchises and effects of the said Western North Carolina Railroad Company from the plaintiff is untrue. Wherefore defendants demand judgment for their cost's in this behalf incurred. (Signed.) James H. Merrimon, (Signed,) McLouo Si Pulliam, Def'ts Attorneys. W. W. Rollins being duly sworn, says : I have heard read the foregoing answer and know the contents thereof, that the same is true of my own knowledge, except as to matter;; therein stated on information and belief, and as to these he believes it to be true. (Signed,) W. W. Rollins. Sworn to and subscribed before me this 7th October, 1S76. (Signed,) J. E. Rekd, Cl'k Sup'r Court. (By Geo. W. Reed, D. C.) (M4 ) ( 2 45 ) (2 4 6) APPENDIX, DEED FROM W. F. WOSSON, Sh'ff, TO R. Y. McADEN, Know all men by tlie.se presents that I, W. F. Wosson, of the county of Iredell, in the State of North Carolina by virtue of a writ of fieri facias issued from the Superior Court of Iredell county in said State in the case to wit : Hi- ram Kelly against the Western Nortli Carolina Railroad Company, and directed to me, as of record doth appear, having levied said peri facias on the franchise with a 'I the rights and privileges thereof of the said "the Western North Car- olina Railroad Company" ou the l*t day of December, A. D., 1871, and having made advertisement of sale of same according to law, and having given said company due notice of said sale, have soid sail franchise and all the right, and privileges, and all other corporate property, real and personal of said company on the 6th day of January, A. D., 1872, at the Co irt House door in said county of Iredell, when and where R. Y. McAden, of the county of Mecklenburg, in said State of North Carolina, became the last and highest bidder for said franchise and tlie rights, and privileges thereof, and the said other corporate property, &c, by bidding for the same amount of said judgment and cost in that behalf to wit : the sum of two hundred and eighty dollars and forty-six cents, which said sum of money has been paid to me as such Sheriff according to the terms of said sale. And that I, W. F. Wosson, Sheriff, as aforesaid in consideration of the pre- mises, and in consideration of the said purchase money paid to me by the said R. Y. McAden as aforesaid, the receipt whereof I hereby acknowledge, have bargained and sold and by these presents do bargain, and sell, and convey unto the said R. Y. McAden and his heirs, the said franchise, and all the rights, and privileges, and immunities thereof, which belong to said corporation, and all the other corporate property both real and personal of the said "the Western North Carolina Railroad Company" to have and to hold the said franchise, and all matters, and things, and all rights, and privileges, and immunities, and all the said property both real and personal, incident belonging and appertaining thereunto him the said R. Y. McAden and his heirs in as full and ample a man - ner as the said Sheriff is empowered by virtue of his said office to convey and assure the same. And the said W. F. Wosson, Sheriff, as aforesaid, doth covenant, promis?, and agree to and with the said R. Y. McAden and his heirs that he and they shall and may at all times hereafter, have, hold, occupy, enjoy and possess said franchise, and the rights, and privileges thereof, aud incident ( 247 ) thereto, and said property, real and personal of said company, free and clear of and from 1 all incumbrances had made and dune, by him the said W. F. Wosson, Sheriff aforesaid, or by his order, means or procurement, and the said W. F. Wosson, Sheriff, &c, will warrant said franchise, and said property both real and personal to the said R. Y. McAden and his heirs so far as he may do by virtue of his said oifice, and no further : In witness whereof the said W. F. Wosson, Sheriff, as aforesaid, has hereunto set his hand and seal the 6th day of January, A. D., 1872. W. F. Wosson, Sheriff. [Seal.] Witness : S. J. Rickkrt. DEED FROM R. Y. McADEN TO BUFORD, LOGAN AND CLYDE. This indenture, made and entered into, this ist day November, i88i, between R. Y. McAden, of Charlotte, North Carolina, of the first part, and A. S. Bu- ford and T. M. Logan, of Richmond, Virginia, and W. P. Clyde, of New York City, New York, of the second part, witnesseth ; That whereas, R. Y. McAden entered into an agreement to convey his title and interest in the Western North Carolina Railroad (Eastern Division) and Western North Carolina Railroad (Western Division,) to the State of North Carolina ; And whereas, the said Buford, Logan and Clyde have become, by the act of March 29th, 18S0, and the assignments of W. J. Best, J. Nelson Tappan and J. D. Fish, the owners of all the right, title, interest and estate of the said State of North Carolina in said Railroads, and are entitled to have the interest of the said R. Y. McAden assigned to them. This indenture therefore wit- nesseth, that in consideration of one dollar in hand paid to the said R. Y. Mc- Aden, the receipt whereof is hereby acknowledged, and for the considerations mentioned in the recitals to this deed, the said R. Y. McAden hath given, granted, bargained and sold and released to the said A. S. Buford, T. M. Lo- gan and W. P. Clyde, and their heirs, all his right, title, interest and estate in and to the franchises and property of the Western North Carolina Railroad, (Eastern Division,) and the Western North Carolina Railroad, (Western Di- vision,) so as to embrace all the interests in the said Railroads, beginning at Salisbury and having Paint Rock and the Tennessee line at or near Ducktown for its Western termini. And the said R. Y. McAden doth hereby authorize the said Buford, Logan and Clyde to enter upon, keep and enjoy said franchise and property in as full and complete a manner as he is entitled to by vrtue of any deeds or titles which (2 4 8) he now owns or claims to own. In witness whereof the said R. Y. McAden hath hereunto set his hand and seal, this ist day of October, 1881. [Seal.] R. Y. McAden. Witness : D. Schenck, ASSIGNMENT OF JUDGMENTS BY R. Y. McADEN TO BUFORD, LOGAN, AND CLYDE. Know all men by these presents that I, R. Y. McAden, of Charlotte, North Carolina, in consideration of one dollar to me in hand paid, the receipt whereof is hereby acknowledged, hath assigned and by these presents doth assign to A. S. Buford, T. M. Logan and W. P. Clyde all my interest and right in and to one certain judgment in Buncombe county, Superior Court Docket, standing in thi name of the Bank of Cape Fear vs. the Western North Carolina Railroad Company for jibout twenty thousand dollars, also two judgments on the Snperic r Court Docket, Rowan county, in the name of R. Y. McAden vs. the Western North Carolina Railroad Company, the two amounting to about $250,000.00; said judgments were taken as near as I can recollect in 1872 or 1873. And I authorize said Buford, Logan and Clyde to collect said judgments, and if neces sary to use my name to any suits or actions at law or equity for that purpose, and to manage, control and own them in as full a degree as I myself might here- tofore have done. In witness whereof I do hereuuto set my hand and seal this 1st day Novem- ber, 1881. R. Y. McAden, [Seal.] Witness : D. Schence. ( 3 49 ) ( 2 5°) (25i) INDEX. EASTERN DIVISION. Page. Record of Sibley Suit. Writ, « 1 Executed on Erwin, Rutherford and Kelley, . 1 Alias ordered, 1 Complaint, 2 Parties, 2 Defendant a corporation, 3 Puwer to issue bonds, 3 Issued bo i ids, 4 Aggregate bonds $1,400,000. 5 Mortgage 1st March. 1870, 5 Default in payment of interest, 7 Sibley's bonds, 9 McAden claim, 10 Bank of Cape Fear judgment, 10 McAden agreement, 11 Sale under Bank of Cape Fear judgment, 11 Confederation alleged, 12 Interrogatories, 13 Prayer for relief, 13 C'ipy of Mortgage attached to complaint, 15-22 Trustees' Acceptance, 23 Probate and registration. 23 21 Answer W. N. C. R. R. Co., 24 Corporation admitted, 25 Power to borrow money admitted, 25 Power to make mortgage admitted, 25 Mortgage 1st March 1870 admitted, 27 Bonds sold to divers persons named, 28-30 Principal and interest unpaid, 30 Admissions relating to Cape Fear Judgment, 30-32 Exhibit "A" referred to on page 30. 33 Answer of other defendants. 34 ( *& ) Page. Joint of Rutherf >rd, Kelly. Greenlee, et ill., 34 Separate of Erwin, 34 Separate of Rutherford, 34 Separate ut Thomas Y. Greenlee, 34 Separate of James Greenlee, 35 Separate of Hiram Kelly, 35 Separate of Mary Carson, 3,=) Joint submission to decree, 35 Order making other parties defendants, 35 Order of reference for an account, 35 Report of Master under said order, 36-38 Cause transferred to Asheville, 38 Judgment pro confesso as to McAden. et ah, 38 " " as to Howerton, et al., 38 Cause set for hearing, 39 Minutes of decree of foreclosure, 31) Master's report confirmed and decree of sale, 40 43 Cause transferred to Greensboro, 43 Temporary receiver appointed, 43 Permanent receiver appointed, 44 Order paying counsel, 45 Foreclosure of the mortgage, 45 Decree of sale, 1874, 46 Notice of sale by commissioners, 51 Report of commissioners, 52 Petition of C. H. Brogden, et al, 54 A. S. Merrimon's assigment of bid, 56 Supplemental report of sale, 56 Bonds cancelled, 57 Sibley's assignment to Mathews, 59 Minutes of decree confirming sale, 62 Decree confirming sale, 63 Agreement between Wilson, McAden and others, 69 " " Mathews, Wilson and McAden, 75 " " Southern Sec'y Co , McAden and others, 76 " " Sibley and others, 81 " " McAden, Wilson and others, 86 " " S mthern Sec'y Co., NCR. R. and others, 91 " " Wilson, McAden and others, 95 Final decree, 97 Deed of Commissioners to State, 89 Deed of Trust from State to Jenkins, 101 Record of the Hiram Kelley Suit. Petition, iir ( mj k Page. Subpoena, 1 16 Subpoena executed, 116 Cause transferred to Sup'r Court, 117 Commissioners appointed to assess damages, 117 Report of Commissioners, 11S Exceptions to report, 11S Report set aside, 118 Exceptions withdrawn and judgment, 119 Execution to McDowell, 119 Levy on train, 120 Sale of train but no money paid, 120 Execution, 120 Levy on franchise, 121 Execution to Burke, 121 Return of this execution, 122 Execution to Catawba, 122 Sale of franchise to McAden. 123 Execution to Iredell and return, 124 Execution to Rowan and return, « 125 •' from Rowan, returnable to McDowell, 126 Return of no goods, 227 Execution from Iredell, returnable to McDowell, 127 Levied on franchise. &c, 128 Sale of franchise to McAden, 128 Certificate of Hiram Kelley, 129 Certificate of Ex-Sheriff Simmons, 129 Record of The Greenlee Slit. Petition, 132 Order of process, 133 Subpoena Served. 133 Cause transferred to Sup'r Court, 1^3 Reference to Commissioners, 134 Report of Commissioners, 135 Judgment, i 35 Execution to McDowell, 137 Return, no goods, 137 Alias to McDowell, 138 Return, no goods, 130 Alias to McDowell, 140 Return, no goods, ij. 1 Execution to Buncombe, 141 Levy by Sheriff Buncombe, 142 Franchise, &c, sold to T. D. Carter, 142 Certificate of T. Y.Greenlee, 143 ( 2 54 ) Record of the John Rutherford Suit. Page. Petitions, 146 Process ordered, 147 Served, 148 Cause transferred to Superior Court, 148 Order of reference and report. 149 Report confirmed, 149 Judgment. 150 Execution to Iredell, 150 Return, no goods, 151 Executiou to McDowell, 153 Levied on Morganton train, 152 A. M. Erwin's receipt and plaintiff's receipts. 154 Alias execution to McDowell, 155 Levied on road-bed. franchise, &c, 155 Return of sale to S. McD. Tate, 156 Plaintiff's receipt, 156 Deed to Tate, 157 Mem. of Chambers' execution, 157 W N C. R. R. Co. vs. R. M. Walker. 158 Summons, 158 Complaint, 158*62 Temporary restraining order, 163 Notice to Coroner of Buncombe, 164 Publication o.dered, 165 Defendant allowed time to answer, ^ 166 Injunction till further ord rs, 166 " made final, 166 WESTERN DIVISION. Record E. Claytox Suit, 171 Judgment. 171 Execution to Buncombe, 172 Levy and return of sale, 172 Assignment to McAden. 1 73 Sheriff's Deed to McAden for road bed, 1 73 " •' " •• for franchise. 174 McAden's Deed to Trustees, 176 Minutes of Directors' meeting. 177 Proposition of McAden, 180 Acceptance, 181 ( 2 55 ) Record of M. J. Fagg suit, Summons, Summons served, Complaint, Answer W. D. W. K C. R. R. Company, Separate answer commissioners, Exhibit, Removed to Polk and back to Buncombe, Agreement to refer and order, Report of referees, Judgment, Executions to Madison, Haywood and Buncombe, Levy and return of sale, Sheriff's deed to Fagg and others, Fagg's resolution, Record Davidson Suit. Summons and complaint, Judgment, Executions to Haywood and levy, Levy and sale, SherirFs deed to T. D. Carter, Davidson's receipt, Record Roberts Suit. Summons and complaint, Answer W. D. W. N. C. R. R. Co., Order appointing Receiver, Record Suit W. N. C. R. R. Co. vs. Rollins, Case agreed, Case for Supreme Court, Opinion of Supreme Court, Extracts From Revised Code, Taylor vs. Jerkins, Gooch vs. McGee. Florida Compromise — Willard Contract, Record of T. D. Carter Suit. Summons, Service accepted by Rollins, Complaint, Amended Complaint, Answer of Commissioners, Page. 184 185 185 186 188 190 191 192 192 193 194 T 95 193 197 200 201 201 202 202 204 207 208 214 2I 5 216 224 225 229 236 241 241 241 242 242 (2 5 6) Page. Appendix. Deed from W. F. Wosson, Sheriff, to McAden, 246 Deed from McAden to Buford, Logan and Clyde, 247 Ass'mt of Jn.GMTs by McAden, to Bcford, Logan & Clyde, 24S IPPfi