Glenn v. Marbury

STATEMENT BY MR. JUSTICE HARLAN.

This action at law was brought March 22, 1889, by John Glenn, in his capacity as substituted trustee in a certain deed of trust made by the National Express & Transportation Company, a corporation of Virginia; also as trustee by virtue of an order passed by the chancery court of the city of Richmond, Va., in a suit in equity brought by William W. Glenn, suing on behalf of himself and others, creditors of that corporation. Its object was to obtain a judgment against the defendant, Marbury, for the sum alleged to be due from him under an order, in the above cause, making an assessment and call on subscribers to the stock of that company.

The facts necessary to be stated in order to show fully the grounds of the defense are as follows:

In August, 1866, Josiah Reynolds, a citizen of Maryland and a stockholder of the National Express & Transportation Company, suing on behalf of himself and all stockholders of that corporation who should come in and contribute to the expenses of the suit, brought an action in equity in the circuit court of the United States for the eastern district of Virginia, against that corporation,-to be hereafter, in this opinion, designated as the 'Express Company,'-and against its president, directors, and superintendent. The bill set forth that the company had been and was then being conducted in a reckless, extravagant, and improvident manner, and that the money subscribed by the plaintiff and other stockholders had been and was being wasted and misapplied in conducting its business, chiefly in ways and for purposes that were illegal and in fraud of the rights of stockholders. The relief sought was an injunction restraining and probibiting the company from conducting its business in the illegal and improvident manner specified in the bill. The bill also prayed that a receiver be appointed by the court to take possession of the property and effects, books of account, and papers of the company; that such property and effects might be sold and disposed of, and any money due the company collected by the receiver; and that an account be taken under the order of the court of its business, its debts and liabilities paid, and the balance distributed among the stockholders. The bill particularly referred to an agreement with one Ficklin, which, it was alleged, ought to be set aside as in fraud of the rights of stockholders. The defendants were duly served with process, and one of them, J. J. Kelly, the superintendent of the express company, filed an answer. The company appeared and adopted as its own the answer of Kelly.