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Opinion of the Court.

propositions that the plaintiff is entitled to bring and maintain this suit for the relief prayed, contends that, by reason of the trust relations existing between the Rock Island and the Southwestern Companies, quite aside from any proof of actual fraud or damage, the decree of foreclosure is no bar to the accounting and relief sought by the bill in this case. To support this proposition the cases are cited of Davoue v. Fanning, 2 Johns. Ch. 252; Michoud v. Girod, 4 How. 503; Koehler v. Black River Falls Iron Co., 2 Black, 715; Drury v. Cross, 7 Wall. 299; Marsh v. Whitmore, 21 Wall. 178, 183, 184; Jackson v. Ludeling, 21 Wall. 616; Twin Lick Oil Co. v. Marbury, 91 U. S. 587; Wardell v. Railroad Co., 103 U. S. 651 ; Thomas v. Railroad Co., 109 U. S. 522; Alen v. Gillette, 127 U. S. 589; Benson v. lleuthorn, 1 Younge & Coll. 326; Aberdeen Railway Co. v. Blakie, 1 Macqueen, H. L. 461; Lydney &c. Co. v. Bird, 55 Law Times, N. S. 558; Hoyle v. Plattsburgh & Montreal Railroad Co., 54 N. Y. 314; and other cases.

But, notwithstanding the general principle laid down in the cases cited, we concur in the views thus taken of the present case by the Circuit Court, and place our decision as to this branch of it on the same grounds.

The next proposition considered by the Circuit Court is as to whether there was any actual fraud perpetrated in the progress of the foreclosure suit, to the prejudice of the present plaintiff.

On that question, the Circuit Court says in its opinion: “The principal ground of complaint under this head is, that the Rock Island Company, being in actual possession and use of the road on which the mortgage was a lien, should have used its revenue first to pay the interest and have postponed the repairs and construction to that purpose. The proper place to have made this defence was in the foreclosure suit. Though it may be said that the Southwestern Company made no such defence because it was in the control of the Rock Island Company directory, which is plausible if not sound, it is to be observed that this suit was in the court for more than a year; that it is hardly possible that the authorities of the county of Leavenworth did not know of its pendency and who

Opinion of the Court.

were the directors in its own company, and if it had at any time appeared in that court and sought to make the defence it now sets up it would have been permitted to do so. Such defence, including also the correctness of the accounts of the Rock Island Company, was made by a Mr. Mueller, representative of the bondholders under the second mortgage made to obtain money to build the Atchison Branch. On his motion he was made defendant and permitted to file a cross-bill. The claim of the Rock Island Company for the interest paid by it as endorser, its claim for expenditures in repairs and construction, and the correctness of its accounts and its appropriation of the receipts from the Southwestern road, were all assailed by him in a cross-bill and referred to a master, before whom his counsel appeared and to whose report he excepted. This report was confirmed and became the basis of the decree as to the amount due the Rock Island Company under the mortgage, and of a personal judgment for repairs and construction. From this decree Mueller took an appeal to the Supreme Court of the United States, where the decree was affirmed. But I must add that even now, after all the proofs taken in the present case, I do not see that, if the county of Leavenworth had been a party to that suit, or if the counsel for the Southwestern Company had been ever so anxious to prevent a foreclosure, what defence he could have successfully presented, or how he could have diminished the amount which the court found to be due from that company on the mortgage. The case is one not uncommon of a road completed which in its first years did not earn enough money to pay its running expenses, its necessary repairs, and the interest on its bonded debt. Such roads have often been sold out under foreclosure proceedings, and passing.into other hands have become successful and profitable enterprises. The original owners see then, when it is too late, that they permitted a valuable property to pass from them which they would gladly reclaim.. But courts of equity do not sit to restore opportunities or renew possibilities which have been permitted to pass by the neglect, the ignorance, or even the want of means of those to whom they were once presented. It follows from these views, without reference to many other

Opinion of the Court.

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matters presented for consideration, that the plaintiff is not entitled to the relief it asks or to any relief founded on this bill. It must, therefore, be dismissed, and it is so ordered."

On the question thus considered the counsel for the appellant cites the cases of United States v. Throckmorton, 98 U. S. 61, and Pacific Railroad of Missouri v. Missouri Pacific Railway, 111 U. S. 505. But we concur in the views of the Circuit Court, and are of opinion that it is not shown that the decree in the foreclosure suit was procured by fraud or collusion. It would serve no good purpose to examine in detail the testimony bearing on this subject.

These conclusions make it unnecessary to consider the defences of the statute of limitations and of laches, as urged by the appellees. The decree of the Circuit Court is


MR. CHIEF JUSTICE FULLER and MR. JUSTICE BREWER did not sit in this case or take any part in its decision.






The first Monday of February, 1790, fixed by the Judiciary Act of 1789 as the day for opening the first term of the Supreme Court of the United States, fell upon the first day of that month. When the judges met in the room which had been assigned to the court in the Royal Exchange, at the foot of Broad Street, on the line of Water Street, in the city of New York, no quorum was present.

Chief Justice Jay was there, then forty-six years of age. The place of meeting was in his own town, where he not only lived, but where he was then assisting Washington in guiding the new ship of state, by taking the practical supervision of the conduct of Foreign Affairs. He had been for years the Secretary for Foreign Affairs under the old form of government; and, when the change took place, he remained there at Washington's request, until Mr. Jefferson should determine whether he would accept the place, and, if accepting, until he should assume the duties of the office. In the language of the President in offering the place of Secretary of State to Jefferson, “Those papers which more properly pertain to the office of Foreign Affairs are under the superintendence of Mr. Jay, who has been so obliging as to continue his good offices.”

Mr. Justice Cushing, just approaching his fifty-eighth birthday, was there,

He had held the first place in the Supreme Judicial Court of Massachusetts, and now took his seat upon the bench of the Supreme Court of the United States.

Mr. Justice Wilson, Scotch by birth, and in his forty-eighth year, had arrived from Philadelphia ; but no other Justice appeared, and, as the statute prescribed four as a quorum, the court of necessity adjourned to the next day at the same place.

Mr. Justice Blair, who was then fifty-seven years of age, reached


New York before the morning of the next day, and the court was then organized. What took place is thus described by Mr. William Allen Butler, in his address at the celebration :

“On the first Monday of February, 1790, the day fixed for the opening of the session of the court, a quorum was not present: on the following day, the first Tuesday of February - one hundred years ago —the room in the Exchange, set apart for the court, the Federal Hall being occupied by Congress, was, as we are informed by the United States Gazette, in its issue of the next day, 'uncommonly crowded.' Numerous Federal, State and municipal officers were present, and a great number of members of the bar.' The Chief Justice and Associate Justices Cushing, Wilson and Blair, took their seats on the bench, attended by the Attorney General of the United States, Edmund Randolph of Virginia; the letters patent commissioning all these officers were read by John McKesson, Esq., who acted as temporary clerk; Richard Wenman was appointed écryer'; proclamation was made, and the Supreme Court of the United States was opened.

“By these acts, marked with true republican simplicity, the full breath of life was breathed into the government of the United States, and it became a living organism.

“John Jay wore on this occasion the ample robe of black silk, with salmon-colored facings on the front and sleeves, which the pencil of Gilbert Stuart has perpetuated in the fine portrait, a copy of which is now in the chambers of the Supreme Court at Washington. It was, as the family tradition declares, the academic gown of a Doctor of Laws, according to the usage of the University of Dublin, which had conferred this degree not long before upon the new Chief Justice; who, in the absence of precedent or rule, thus gracefully associated the garb of the University with the dignity and destiny of the new tribunal in which he presided, a not unfitting attestation that the true equipment and investiture for judicial office is not political affiliation, but professional fitness.

“The Associate Justices wore the ordinary black robe, which has since come into vogue as the vestinent of all the members of the court."

Except to appoint its officers, to frame its rules and to provide for the formation of its bar, there was nothing for the court to do at its opening term. In a little over a week it adjourned. The following is a reduced fac-simile of the entire record for the term; all of which, I am told by the present clerk of the court, is in the hand-writing of Mr. Tucker, the first of his predecessors :

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