526 ·

:':EPERA.I,BEfQRTER,

vol. 52.

the bondclaim: ,¥:earnings have bello diverted from this primary purpose, and used for the advantage of, t4e bondholders, of interest or ip permanent improvenlents which tend to enhance the value of the property, the sums thus, ,divert",d must be restored. This restoration mlJ,Y Ql'l [mm theincorne. If this fail, then the diversion must be met out of the proceeds of sale. There was in this .case a: diversion of some $2,,309. : This the bondholders must rehave, in fact, by consenting to the displacement store. of theirJitW by the issue of certificates to the amount of $30.000. Thesll must be paid out of tij.e ,proceeds of sale. The money they furnish lll¥ti'bet:n applied to claims of the same rank as those held by the this exonerates the.ppndholders from any further assesE',. . . thus appears that the petitioners have no equity which can lien qf the bondholders. The prayer for preference proceeds of sale is

a going

fUi'ANQJl:Co. OF PENNSYLVANIA

,

CO. tit al., (MdciN, Intervener.)

'

tit al..

fl. CHAnLESTON,

C. & O. R.

:(Circuit Oourt" D. BouthQaTolina. November8,lSoo.)
1.

RAII,ROAD

A lawyer, drnployed tiyal'ailroad company at a fixed salary tn a state where the road. is 'in 'course Of constrUction, but, yet in operation; is, not' entitled, on the appeintmept of a, receiver in pJ::OllE\edings, to receive p"yment out of the proceeds of tb.e sale; prior to the satisfactIon of the mortgage bonds, even though earnings of:the:road have been imp1'0petly:diverted from current expenses for the 1;Ienefit of bon,4h0I<lell',8 ; for the a return of diverted eannings applies only in favor of those wbohave helped to Keep the road a goiilg concern. FosrUck v. , " An order appointing a receiver authorized him to payout of income, besides the current eXflenses and charges, all wages due to employes at the date of the order for ,serVices Within 90 Wlys Held, that a lawyel' at a fixed salary per month came within the terms of the order. '
LIEN. . . ' , ,

.....REOBIVER"":'LABOB AND SUPPLY CLAI.PRIORITIES.

2. ltECEIVBRS-ORDERFOR PAYMENT 011' EMPLOyES-SALARIBD I4WYBR.

,

8.,

A lawyer who renders legal services to a railroad company at'a fixed slliary, and Wh,O advances money for the company's purposes, is entitled to a lien for the retention of papers for the whole amount of his claim.

InEquity. Company and others Cinciomiti &, Ohicago, RailrOad Company and agaipst the A was ,4p, Fed. Rep. 436. ' Heard 00 the i,otervening petitioll ofJohn B. Moon. Decree for intervener. HagoofI,}orpetitioner. ' Sam'iJ,el Lord ,and'."; T. Smythe, for respondents. A. <.,,'1. . , ",., ."
:'; ,. '",l

SIMONTON, District Jpdge. This case comes upon the report of the special master. The petitioner, a memher of t?e bar of Virginia, Qf

FINANCE CO.

v;

CHARLESTON, C. & C. R. CO.

527

reputation, was the regular couusel of the railroad company in that state, engaged at a salary of $200 per month." He rendered services of great value to the railroad company in nearly every department of professional duty. He also advanced money for its purposes from time to time. He has in his possession munimeQtsof title and other papers of vlllue. On these he claims a lien for his account proved in these proceedings. The master reports as vouched before bim for salary, exan.d money advanced by the petitioner to the railroad company the sum of $3,.296.81. Of this sum, during the 90 days preceding the appointment of a receiver, there is due for salary 8600, for expenses 8222.30. The order appointing the permanent receiver in this case lluthorize<thim, out of the tolls, income, revenue, and issues of the railroad company, in addition to the current expenses and charges, to pay all the wages due to the employes at the date of the order appointing the temporary receiver herein, for labor llnd services within 90 days fore the same. The petitioner was in the employment of the railroad company under a fixed salary. The order of Judge BOND appointing the receiver provided for all employes without qualification, meaning regular employes, employed generally I and not for a particular act. Railroad 0>. v. Wi/$on, 138 U. S. 505, 11 Sup. Ct. Rep. 405. The .'petitioJ;ler .Qoooes within this class,"and is also within the protection of the order. He shoUld get his pay and necessary expenses for the 90 days preceding the appointment of the temporary receiver out of the income m.ade by the receiver; but in no event can he come upon the proceeds of sale either for the total amount of his bill or for this preferred part of it. The railroad has never been built in Virginia. It was, at the best,in the coUrse of construction. So, even were there any diversion of income for. the benefit of the bondholders, of which there is no eviFinance Co. v. Railroad 00., 52 Fed. Rep. 524, (decided at this te11l:l,)-the equity established in Fosdick v. SchaU, 99 U; S. 235, goes only .to claims against a railroad as a going concern, and does not exist in favor of those aiding in constructing a railroad,- Wood v.Guarantee Trust Co., 128.U. S. 416, 9 Sup. Ct: Rep. 131;-and if, perchance, the income should fail, this will'not of itself give a right to go against the cOTJw,s or the proceeds of sale,-Railroad Co. v. Cleveland, 125 U. S. 658, 8 Sup. Ct. Rep. 1011. Let an order be taken conforming to this opinion. The petitioner may, if he desires, take judgment against the railroad company for so much of his claim as is not preferred. His lien for the retention of papers is recognized and allowed as to the whole claim.

528

FEDERAL REPORTER,

vol. 52.

et al.

BELLOWS 11. SOWLES

rOirauU Court, D.Vermont. Ootober 211, 1899.}
Alegatee under a will brought a bill against the exeoutor and against the l'8o ablmk to reach p,ropertyof the testator held by the bank, aud moved tllat other legatees, of the same amount be ,made parties. Held, that there was no ground forooinpelling the other legatees to become parties to the suit, for, though they qlahned in, the same right,tl1ey not claim the same trust property, b,ut merely their sellarate shares in the avails of it, if any. after the assets had been collected and distributed in some way by decree of the probate court.
TO REOOVlm LEGAOY.

In Equjty.Suit byF,rederickBellows against Edward A. Sowles; as executqro,fthe wills ,of Hiram ,and, Susan Bellows, and against Chester W;Witters;fts,receiver of the First National Bank of St. Albans. 'Motion h}rlc¢mpl9.inant for an DrderQfcourt making Charles Bellows and Bert i13ellQws iparties ,to the, Denied.

!W'LWitter8, pro 86. "

, ,WlIE'EI.lJ:R,District Judge;",> The orator and his brothers, Charles and Bert, are 'll.lleged to be legatees ofe2,OOO eaoh in the wills of Hiram and Susan Bellows, of which the: defendant Sowles is executor. He has bl'o,uglrt this Buit in behalf of himself and all othe1'8 in like interest who wIll join him in it, to reach real and personal estate which was of the testators aqquiredby the First: National' Bank of St. Albans, of which the defendant Witters is receNer.:Tbey have not joined in the suit, and this defendant moves that tliey,be made parties, as claimants of the same property, by order of court. But these legatees are not claimants of the samepropt'rty. Each claims a separate legacy of $2,000 in money. In this state, jurisdiction of distripution of estates of deceased persons is vested exclusively in the probate,courts. The equity jurisdiction of this court ('.annot be restrained by statutes ofthe state. Wayman v. Southard, 10 Wheat. 1; Beer8 v. Haughton, I) Pet. 329. But the rights of the parties are to bEntscertained by the,!awsof the state. The legacies are not made chargeable upon any of the property, and neither of the legatees is entitled to a decree against the receiver merely because the legacies are unpaid, and he has assets of the estates. The assets must be got together, and be distributed by decree under the will in some way, before either will be entitled to them. Boyden v. Ward, 38 Vt. 628. The legatees claim in the same right,buUhat is not enough to warrant forcing either to become a party to a suit of the other. They do not claim the same trust property in litigation before the court, but merely their separate shares in the avails ofit, if any. No ground appears for compelling them to become parties to another's suit. Motion denied.