him. He is a better and a greater man because he is taught that he is their fellow.

Our complex system so increases the number of courts, judges, and lawyers, and so separates them from each other that we cannot bind the profession together as they do in England. And it is especially impossible that the legal surroundings of the process of legal education, should appeal, as there, to imagination and ambition. The more need that effort should be made to immortalize useful and noble lives-to stimulate ourselves to be worthy of the noble profession to which we belong.

It is the tendency of the times to degrade the profession into a trade; to make it a means of self-aggrandizement, a ladder to political office; to forget or despise its lofty theory-the theory which in almost every land has regarded the advocate as a minister of justice, and required of him the exhibition at all times of moral courage, of self-forgetfulness; the vindication of truth; a tender and unflagging protection of weakness and distress.

It is our duty to struggle against this demoralizing tendency, to elevate ourselves and elevate each other into the atmosphere, moral and intellectual, of the great exemplars of the profession; and for that puropose, to contemplate and remember their virtues, and hold them up for admiration and emulation.

There stands, if indeed the commune has not destroyed it, at the great stairway leading to the court rooms in the halls of justice, in Paris, a statue which no lawyer can behold without intense emotion. It is that of Malesherbes, the brave defender of Louis XVI on his trial before the crowd of cowards, fanatics, and assassins, which doomed him to death. He was a man of three score years and ten. He had been a minister under the king, and distinguished for the boldness with which he then asserted popular rights, and aided in the march of progress. He had retired from office defeated, while other counsels than his ruled the hour. But when his king was dethroned, accused, and in danger of his life, he came promptly to his rescue, and begged and was accorded the

dangerous privilege of joining in his defence. Fearlessly and earnestly he pleaded his foredoomed cause before the eight hundred excited men, who were both the accusers and the judges of the unhappy prince, standing beside him to the last, regardless of the fate for himself, which he knew he invited. That fate he met. Ere long, he and his family followed their master to the guillotine, their only crime that he had defended Louis Capet. Yet, it seems to me, it was reward enough for all, that there, just there, where every advocate in Paris must forever see it, his statue should be placed; its calm duty-loving eyes invoking the veneration of the profession through all the ages, inscribed with the epitaph which chronicles his history-" Strenue semper fidelis regi suo, in solio veritatem, praesidium in carcere, attulit." "Faithful ever to his king, when on the throne he told him the truth; when he was in prison he brought him aid."

Moral courage-bravery for the truth, as one sees the truthbravery for the helpless, the greater in proportion to their distress-all, not for gain, but because he is a minister of the law, sworn to seek and to do justice and follow right, hercin is epitomized the moral duty of the advocate.

Such courage-such appreciation of duty, thank God, is not rare. The opportunity for its exercise seldom comes without finding the man ready. If we would have it always so, let us look back often, at the heroes of the bar; let us study and rival their virtues; let us make this association and its meetings a means of perpetuating their fame, and with it their selfdevotion and their love of their country and their kind.

PAPER

READ BY

GEORGE TUCKER BISPHAM.

Rights of Material Men and Employees of Railroad Companies as against Mortgagees.

In a comparatively recent treatise on railroad securities, by a gentleman of the Boston Bar, the following observation occurs:

"Railroad bondholders have, within the last few years, sometimes experienced much surprise, to say nothing of other and stronger emotions, at finding in the course of events that mortgage liens, which were nominally and actually, at the time they were created, first liens upon the mortgaged property, have been adjudged by the courts to be subject to other claims, subsequently incurred."

This was published early in 1879. About eighteen or twenty months later, namely, on the 9th of the present month (August, 1880), the special masters in the foreclosure suit of Taylor vs. The Philadelphia and Reading Railroad Company, filed their report (which was approved by the court), in which they state that "it may now be taken to be the well settled doctrine of the American courts that when the holders of railroad mortgage bonds obtain the appointment of a receiver, pending proceedings for foreclosure, the court will apply the net income, in its discretion, to the payment of the employees and the material men who have furnished the labor, materials, and supplies necessary for the operation of the road."

The above sentence from Mr. Jones' book on railroad securities has been quoted, because it may be taken as a fair indication of the general view, expressed in professional literature, upon the subject which it is proposed to discuss in the present paper, and because it indicates also a feeling of dissatisfaction with the present condition of the law which is believed to prevail in a good many professional minds;-while the quotation from the master's report in the Reading Railroad case has been made for the purpose of showing the progress which, in the opinion of some gentlemen of the Bar and some members of the Bench, has taken place within the past two years in the doctrine under consideration, and the rapidity with which that doctrine is assuming definite shape.

The topic, indeed, is one which has not only attracted the attention of text writers, but has been the occasion of no little. thought among members of the Bar, and has given rise to the expression of some diversity of opinion from the Bench. It is one of great practical importance;-it has been illustrated during the last ten years by some, but not many, decisions of courts of the highest authority;-it can be properly examined only by a constant reference to precise principles of law, and a careful avoidance of vague and unscientific considerations of public policy;—and the present state of the law in reference to it may be said to be in a formative condition, which it is the province. of a convention like this to do something towards controlling, in order that the crystallization into hard rules may take such shapes as may be most conducive to justice, and most consonant with the true business interests of the community.

A hasty examination into the present condition of railroads throughout the United States, shows that on the first day of the present year more than ten thousand miles of railway were being operated under the control, more or less immediate, of courts: while we can roughly estimate the vast pecuniary interests involved, when we reflect that in one of the recent cases of insolvency of these corporations, labor and supply claims to the extent of over two million five hundred thousand dollars have

been presented, and alleged to have priority over bonds which the holders fondly conceived to be the first charge upon the road.

In view then, of the immense practical importance which this subject would seem to have, let us, very briefly, consider the point or points which have been reached by judicial decision upon the questions which have arisen under it. Of course, since the case of Fosdick vs. Schall* in the Supreme Court of the United States, some otherwise disputable propositions may be considered as finally settled; but it will be convenient, nevertheless, to recur to a few of the earlier authorities, in order, as already said, that we may see what rules may be fairly deduced from the cases, and what, if any, limitations may be suggested in reference to the doctrine announced by the recent decision of the Supreme Court.

How far, then, have the courts gone in holding that the rights of mortgagees may be interfered with or affected by the claims of material men and laborers?

One of the earliest cases in which the question seems to have arisen, is Clark vs. The Williamsport and Elmira Railroad Company in the Supreme Court of Pennsylvania, which (so far as is known) is unreported, except in the local papers of the day. The defendant company was put into the hands of a receiver in the year 1859. In the order appointing the receiver he was directed to pay "all sums due or maturing (at the time of the appointment) to the employees upon the said railroad," and the amounts "due and maturing" for materials and supplies about the operation and for the use of said road. Subsequently, some of the holders of the first mortgage bonds intervened, objected to these provisions in the order, and asked that they should be stricken out. It will be observed therefore that here was a contested case, and one in which the question of the right of the laborers and material men to interfere with the priorities of the mortgagees fairly arose. Mr. Justice Strong

* 9 Otto, 235.