50 i rsnmrm. nurosrnn.
In the case of Paine v. Little Rock if Ft. S. R. Oo., April term,
1874, application was made to this court to authorize a receiver to
issue certificates, which were to be a first lien, to build 60 miles of
road, in order to earn a large and valuable land grant, which would
lapse in a short time unless the road was completed. A majority in
value of the first-mortgage bondholders concurred in the application;
and the orders of the court in the case of Stanton v. Alabama ct O. R.
Oo. 2 Woods, 506, (the case was not then reported,) and the case of
Kennedy v. St. Paul rl Pac. R. C0. 2 Dill. 448, were pressed upon the
attention of the court. But the order was refused upon the ground
that it was no part of the duty of a court of chancery to build rail-
roads, and thatthe assent of all the parties interested in the property
could not make it such. And there is no difference, so far as relates
to this question, between building a. railroad and making extensive and
general repairs and bettorments, the cost of which sometimes approx-
imates the cost of original construction. In the case referred to, of
the Fort Smith Railroad, the proceedings to foreclose were speeded,
and a decree rendered to meet the exigencies of the case, which the
supreme court approved, and said "was a much more desirable plan"
than to issue’receiver’s certificates. Shaw v Railroad Co. 100 U. S.
612. —· ‘ · A ` ‘ A · »
Before the orderauthorizing the receiverto incur debts for repairs
and other purposes was rescinded, he had incurred debts tothe amount
of some $22,000, chiefly for ties and a machine-shop. The ties were
Q indispensable if trains were to be kept running, and the machine-shop
’ ‘ was a necessary and valuable propertyto the road, and its use a ne-
cessity, though that could probably have been had without purchas-
ing the property. A final decree of foreclosure was rendered on the
seventeenth day- of March, 1877. By the terms of the decree the
purchaser was required to pay $40,000 in cash. This sum was re-
quired to pay the receiver’s certificates, and other costs and expenses
of foreclosure. Any amount bid in excess of the $40,000 could be
paid in first-mortgage bonds. Unusual pains were taken stoconvey
to the bondholders actual notice of the foreclosure proceedings, and
holders of $661,000, out of a total of $720,000, of the first-mortgage
t bonds had actual notice of the foreclosure proceedings, and the time
and place of sale. The present plaintiffs had opened negotiations
lookingto a foreclosure- of the mortgagebefore the bill for that pur-
pose was tiled by the trustee; and before the sale under the decree it
' A filed and proved in the master’s office bonds to the amount of $461,-
000, being the very bonds on which this suit is bottomed. The road