r msron v. Bousrou at ·r. c. mn co. 13
such properties passed into the custody of the present receiver in this
cause under an order of court of date May 26, 1886, where they have
since continuously remained. ‘
The master finds and reports that intervenor’s demand against the de-
fendant railway companylaccrued within six months prior to February
20, 1885; that the earnings from the property- of the defendant company
in the custody of the court have been, since February 23, 1885., in ex-
cess of what has been necessary to defray all expenses incurred during
such period in the care, management. and operation thereof, and in ex-
cess of what also have been adjudged in said cause equitable charges
upon such earnings, superior to the equities of said complainants, to an
extent at least equal to intervenor’s demand- against defendant company;
but also finds ·that there are interventions upon other demands against
such company pending in this court, which, if held to be entitled to
equitable priority over complainants, would be more thansuch excess to
a greater amount than- intervenor’s said demand. Therecord in the
above cause (No. 198) discloses thenfact thatsince the road and other
properties of the defendant company have been in the custody and under
the management and control of the receivers, at~least.$600,000 of the net
earnings during such period have been expendedby the said receivers
in the payment of interest accrued on the bonds heldeby the said coms
plainants, in. the erection and completion_ of costly depot buildings, iu
fencing right ofrway, and in otherwise permanently improving and beta
tering the said properties. .The master,upon the foregoing facts, con-
cludes and finds as a matter of law that the said claim of the Pemberton
Company isnot an indebtedness of such a character as entitles thesaid
intervenor to payment thereof either from the: income or the corpus of the .
estate in preference to the contract- liens of complainants, and that the
intervenor is not entitled to the relief sought by it as against the funds
or the properties of the defendant railway company inthe custody of the
receivers in thiscause;. and he recommends that it be decreed accordingly,
and that the petition of intervenor be dismissed.
` The questions arising upon the exceptions tothe rnaster’s report are
stated by counsel for intervenor as follows: ‘ ' ‘ ` ` z
_ "First, whether or not a claim by the consignee; or hisrassignee, against
an insolventrailroad company as a common.ca1·rier of goods, for the value
of freight lost within six months next before the company’s road and other
propertiespassed. into the possession of a receiverappointed in asuit,f0r fore?
closure of a mortgage given to secure the companyls bonded indebtedness is
enforceable against the net earnings in that omcerfs handsfas aclfarge su-
- perior to the equity of the hondholders; and, if yea, then, second, whether
such aclaimris not enforceable against the comue of the estate in the posses-
sion of the receiver, prior to the claims of the bondholdersy where there are
-no such funds, or an insufficiency therecf. by reasonlof thefact that they have
been appliedto the payment of interest accrued on, the mortgage debt, or to
thp lasting and valuable improvement or bettermentiof the mortgaged prop-
· It is not considered necessary, to specifically answer either one of these
questions, t. A debt. of, a railroad company; arising out. of the loss by