Manning v. Norfolk Southern R. Co.

29 F. 838

Opinion

Hughes, J.

The common-law right of siting to judgment upon a written obligation admitted to be valid is of too high a character to be taken away by implications, especially if these are drawn from instruments other than that which is given in direct and positive acknowledgment of the debt. The suit at law is brought upon written obligations in the form of coupons cut from bonds payable to the holder. In defense the defendant contends that the right of action upon them has been taken away by the provisions of a mortgage which it executed simultaneously with the execution of the bonds. The mortgage was given for die purpose of securing the payment of the bonds. It contains various provisions looking to the protection of the property of the company which it covers from undue sacrifice. It contains no provision which positively, and none, I think, which impliedly, takes away from a holder of coupons, who 1ms taken no part in instructing the trustee as provided by the ierms of the mortgage, bis right of action upon them at common law. I fully concur in the views of this mortgage deed set out by Judge Hall, in the opinion filed in the case, on the true force and effect of this instrument, and I need not repeat them here. It controls the property which it conveys, but does not, in any of its provisions, affect the common-law right of action belonging to any holder of the coupons of the Norfolk Southern Company who has not participated in the action of the majority of the creditors of the company.

Judgment may be taken for the amount claimed upon the coupons in suit.