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closure proceedings by a court having general jurisdiction of the parties and the subject-matter, import absolute verity, binding upon all the parties, none of whom can thereafter be heard to plead collaterally that the decision was not founded upon sufficient evidence. The only remedy of a party aggrieved by the judgment, is by appeal therefrom, or by a motion in the action in which it was rendered. Accordingly, a decree is final as between the parties with respect to the questions thereby decided, or which might have been brought up in the suit, and those matters cannot be again brought in issue between the same parties, unless it appear that the successful party has wrongfully prevented the other party from presenting his case fully.3 The decree, however, is not conclusive against parties having no notice of the proceedings.* A decree entered by consent of the parties is binding only within the scope of the bill. The decision in an action upon coupons is not conclusive upon the parties in a subsequent suit upon other coupons of the same bond, unless the issues in the former action embraced all the issues in the latter."

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1 Herring v. New York etc. R. R. Co. 105 N. Y. 341, 371, 372; citing Grignosis v. Astor, 2 How. 319.

2 Herring v. New York etc. R. R. Co. 105 N. Y. 341, 372.

3 Brooks v. O'Hara Bros. 2 McCrary, 644; Aurora City v. West, 7 Wall, 82, 102; Woods v. Pittsburgh etc. R. R. Co. 99 Pa. St. 101; Wood's Railway Law, 1636; 2 Taylor on Evidence, § 1513.

4 Pittsburgh etc. R. R. Co. v. Marshall, 85 Pa. St. 187.

5 Vermont etc. R. R. Co. v. Vermont Central R. R. Co. 50 Vt. 500. 6 Town of Enfield v. Jordan, 119 U. S. 680.

§ 688. Of the foreclosure sale. --Unless so provided by statute, a mortgage sale does not destroy the existence of the corporation, nor does the

acquisition of the corporate property carry with it, to the purchaser, any debts which may be owing by the company,' unless they be imposed upon him by statute, as a condition precedent to the right to operate the railway under a special charter." Neither, on the other hand, does the purchaser at foreclosure sale thereby assume the liabilities of the company upon contracts and torts. When, pending foreclosure proceedings, the property of a railway company is becoming every day more heavily incumbered by receiver's certificates, the court will not postpone the sale upon the objection of a minority of second mortgage bondholders, urged upon the ground that the non-settlement of the conflicting claims of different classes of bondholders, at the time of the sale, would seriously depreciate the salable value of the property, but will leave the conflicting rights to be settled after the sale. Where a system of railway property is divided, with respect to ownership and the interests involved, into several parcels, the decree may direct that each part be offered separately for sale, then that bids be received for the whole; and that if more be bid for the property in its entirety, it shall be sold as a whole; and that the proceeds be then divided among the several parties in proportion to the bids upon the separate parts in which they are severally interested.

Under

such a mode of procedure, all parties have substantially the benefit of separate sales, without the loss which might be occasioned by a division of the railway. A decree of sale is to be carried out by the proper officer of the court; but it is with the mortgage trustees to elect whether the sale

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shall be made or not, and to choose the time therefor. The trustees will not be compelled by mandamus to have the property sold."

1 Wright v. Milwaukee etc. R. R. Co. 25 Wis. 46.

2 St. Louis etc. R. R. Co. v. Miller, 43 Ill. 199.

3 Secombe v. Milwaukee etc. R. R. Co. 2 Dill. 469; Hopkins v. St. Paul etc. R. R. Co. 2 Dill. 396; Metz v. Buffalo etc. R. R. Co. 58 N. Y. 61; 17 Am. Rep. 201; Wellsborough etc. Plank Road Co. v. Griffin, 47 Pa. St. 417.

4 First National Bank v. Shedd, 121 U. S. 74.

5 Union Trust Co. v. Illinois Midland etc. R. R. Co. 117 U. S. 434. 6 Farmers' Loan and Trust Co. v. Central R. R. Co. 4 Dill. 533.

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§ 689. Of the purchaser's title.-The purchasers of a railway property sold under foreclosure take the same right to operate the road that the company itself possessed, but they do not thereby acquire the franchise of corporate existence.1 Neither do the purchasers thereby assume liability upon the contracts nor for the torts of the company. They acquire such title to the property as was vested in the parties to the suit in which the decree of sale was rendered, subject only to prior liens and incumbrances. Where, by the express terms of the decree of sale, a purchaser took the property subject to the liens already established, or which might, on pending references, be established as prior and superior to the liens of the first mortgage bondholders, he cannot, so long as he keeps the property, relitigate the liens expressly subject to which he bought and took the title, or be relieved from his obligation to comply with the terms of the purchase. When the representatives of a committee appointed to purchase a railway which was to be sold under foreclosure, consented to an agreement between the receiver and another party, whereby, upon certain conditions, the latter

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was to acquire a lien upon the road, and the committee had notice of the arrangement and permitted the performance of the conditions by the other party, the purchasers themselves were held to be affected with notice of the lien and to take the property subject thereto.

1 Atkinson v. Marietta etc. R. R. Co. 15 Ohio St. 21; Bruffet v. Great Western R. R. Co. 25 Ill. 353. Vide infra, chapter on REORGANIZATION. 2 Vide infra, REORGANIZATION.

3 Beach on Receivers, § 734. Vide infra, REORGANIZATION.

4 Vide infra, REORGANIZATION.

5 Swann v. Wright, 110 U. S. 590, per HARLAN, J. See further, Williams v. Morgan, 111 U. S. 697.

6 Vilas v. Page, 106 N. Y. 439.

§ 690. Of the distribution of the proceeds of salo among the bondholders.-The proceeds of the foreclosure sale are to be divided among the bondholders in proportion to the face value of the bonds held by cach, without regard to the amount which he m.y have paid for them.' Where, however, a

person holds bonds merely as collateral for a debt due him from the corporation, he is entitled to receive in the distribution only the amount of his debt. Where the proceeds of a foreclosure sale upon a mortgage which is security for a series of bonds, are insufficient to pay the full amount due, each bond carries only a fractional interest in the proceeds, to be ascertained by the proportion which its face value bears to the whole amount of the series. And the proportionate share of one bondholder in the proceeds of the mortgaged property is not increased by the fact that other holders of the same series have surrendered their bonds under a refunding scheme, unless the surrendered bonds should be destroyed by the railway company with

the intent of extinguishing the debt of which they are the evidence, thereby diminishing the number of bonds in the series.* For, where its own bonds have been purchased by a corporation or acquired by it under a funding scheme, unless they be destroyed by it with intent to extinguish the lien, there is no doubt of its right as against other bondholders secured by the same mortgage, to reissue them before maturity, if the organic law of the corporation does not prohibit the exercise of that power. Where a railroad mortgage to secure bondholders was foreclosed, and the sum realized thereon being insufficient to pay in full all the bonds, a pro rata distribution among such as had proved their claims was directed by the court, which was accordingly done as to some of the bondholders, but before all received their proportions others came in, it was held that the latter were not entitled to the same proportion in the undisposed-of balance, and that the whole account should be recast at a lower rate.

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1 Duncombv. New York etc. R. R. Co. 84 N. Y. 190, where bonds to the amount of $810,000 had been issued to secure advances of only $81.000. And in this case it was held immaterial that the bonds were given for an antecedent debt. But s e Rice's Appeal, 79 Pa. St. 168; Jessup v. City Bank, 14 Wis. 331; Ackerson v. Ladi Branch R. R. Co. 23 N. J. Eq. 542. 2 Jessup v. City Bank, 14 Wis. 331.

3 Barry v. Missouri, Kansas & Texas Ry Co. 34 Fed. Rep. 829; S. C. 4 R'y & Corp. Law J. 193, 200, citing Ilodges' Appeal, 84 Pa. St. 359,

4 Barry v. Missouri, Kansas & Texas R'y Co. 34 Fed. Rep. 829; S. C. 4 Ry & Corp. Law J. 198, 200, citing Brinkerhoff v. Lansing, 4 Johns. Ch. 65; Pomroy v. Rice, 16 Pick. 22; Watkins v. Hill, 8 Pick. 522; Dana v. Binney, 7 Vt. 501. That is, the holder of one bond of a series of 2,000 is entitled to one 2000th part of the proceeds of the mortgaged property; and when 1,999 bonds have been surrendered under a redunding scheme to which the former holder dissents, he is not entitled, upon an accounting, to rece ve the full amount of his bon an accruedi terest before the holders of the 1,999 bonds receive anything; but having dissented to the arrangement, his right remain entirely unaffected thereby, and he is entitled as before to only one 2,000th part of the proceeds.

5 Barry v. Missouri, Kansas & Texas R'y Co. 34 Fed. Rep, 829; S. C.