Euston v. Pendleton Street Railroad

This motion was argued some months ago, ana afterward I was advised that the parties were negotiating for a settlement, and that it might not be necessary to decide it, so that I did not further consider it at the time.

I have now examined the papers in the case, and have concluded that the motion can not be granted as asked. It is an indirect way of enforcing a right of action of Fisher against Kilgour without bringing a suit. It is right to have the.bonds filed. This provision in the decree was made for the benefit of the railroad company and those interested in it.

But Mr. Fisher has the bonds himself and moves that Kilgour be compelled to file them, which he can not possibly do, unless Mr. Fisher shall let him have them. But he says that he will let them go on receiving so much money.

It seems to me that it is substantially the same thing as if the motion were directly to order Kilgour to pay over that amount of money to Fisher, which would not be a legitimate mode of proceeding. I do not intend to say that Mr. Fisher may not have the right to have the relief which he claims from Mr. Kilgour, but I can not adjudicate that question on this motion to order Kilgour to file the bonds. As to the bonds, now that they are shown to be in the hands of Mr. Fisher, and as we know they have been paid, it seems to me that if the court were to issue an order it would have to include Mr. Fisher, requiring him as well as Kilgour to deliver up the bonds.

The motion will be overruled.