Page:Federal Reporter, 1st Series, Volume 5.djvu/862

 850 FEDERAL REPORTER. �expenditures by a railroad eompany for construction or per- manent improvement may enure more or less to the benefit of holders of its bonds, and since the effect of such an estoppel as bas been spoken of must be to displace the mortgage lien, it is clear that to create an estoppel a plain and undoubted case should be made. It is not sufBcient to say that some of the bondholders, or a majority of them, or such as have been most active and influential in promoting the concerns of the road, have done acts which as to them create a superior equity in f avor of a third party who has made advances; for, in such case, the transaction would have to be regarded as one between individual bondholders and such third party. The mortgage lien as an entirety can only yield to such equitable claim when acts have been done which bind ail the bondholders because directed and sactioned by ail; and I am inclined to the view that in the present petition the pleader intended to be understood as alleging that ail the bond- holders directed the loan from the iron and coal eompany to the railway eompany to be made. �Although the petition probably alleges enough to show that the bondholders approved and even requested and directed the original loan by the Eailway Company to be made for the purpose of new construction, and the moneys to be so expended, I am of the opinion that it is fatally defective for want of allegations to the eflfeot that the petitioner's personal connection with the transaction was the resuit of requests, directions, or promises of indemnity to him on the part of the bondholders. . The allegations in this behalf are that he was the contractor for the new construction, and that at the request of the railway eompany, and upon the demand of the iron and coal eompany, he deposited stock as collateral to the loan, and that at the request of the railway eompany, which was unable to pay the note, he advanced for the eompany, and paid from his own personal means, the indebtedness repre- sented by the note. This is. the seope of the allegations in respect to the petitioner's personal connection with the trans- action. It is true, it is further stated that the payment was made for the benefit of the railwiiy eompany and for thehen. ����