Page:Federal Reporter, 1st Series, Volume 5.djvu/858

 646 pj:D£iiAii fisroitTEii. �In re Petition of Kellt ». The Eeceiveb of thb Gbeeh Bay & MiNN. E. Co. �(Circuit Court, E. D. Wiseonsin. January, 1881.) �1. Railkoads— Advancbs for CoKBTEUcxroii — Mobtgagb Bondhold- �EISS. �A claim for advances, made to a raiiway company for the purpose of completiiig the construction of thelr railroad, will be postponedin equity to the lien of the mortgage bondholders, unless such advances were made in consequence of the requests, promises, and acts of ail the bondholders. �2. Samb— SixtMonths Rtjt.e— Sbtbkth Circuit. �Under the "six-months rule" of the seventh circuit, such claim could not be enforced against a receiver where the same had accrued more than six monthg prior to his appointment, and the bondholders had not been estopped from disputing the claim by reason of their con- duct.— [Ed. �In Equity. Demurrer to Intervening Petition. �E. H. Ellis and Firiches, Lynde e Miller, for petitioner. �E. G. d W. G. Larned and T. Q. Case, for receiver. �Dtbr, D. J. Thia is an intervening petition by David M. Kelly, asking for the aïlowancô of a cliaim of nearly $300,- 000 against the receiver of the Green Bay & Minnesota Eailxoad Company. The petition is demurred to, and it is contended by the receiver that, upon the faets stated in the petition, the petitiôner's claim cannot be recognized as one entitled to priority over the bondholders' mortgage lien. �The material allegations of the petition are that in 1872 the Làckawana Iroh & Coal Company of Pennsylvania loaned to the railway company $251,500, for which the latter com- pany gave to the iron and coal company its promissoiy note, payable February 20, 1873, and bearing intereet at 7 per cent, from November 20, 1872 ; that the loan was made for the purpose of enabling the railway company to complete the construction of the road from Fort Howard, Wiseonsin, to a point on the Mississippi river, opposite the city of Winona. �It is -further alleged that, contemporaneously with the giv- ing of thfi note, the petitioner, at the request and in behalf of the railway company, and upon demand of the iron and ����