action, brought by said Trust Company, a copy of which appears in said Appendix, being No. 26 of Exhibit L, on the 209th page thereof, the said Trust Company filed and served an amended and supplementary complaint in the said last-named action, by which the prayer for relief was limited to the mortgage therein referred to as the second consolidated mortgage, and by which there were included as parties to the same, certain creditors of said Erie Company, being all of its creditors who had at that time recovered judgment against the said Erie Company (a copy of said amended complaint appears in said Appendix, being No. 27 of Exhibit L, commencing on the 210th page thereof), and the said Erie Company appeared and answered said amended complaint (a copy of which answer appears in said Appendix, being No. 28 of Exhibit L, on the 215th page thereof), and all of the said judgment creditors of said Erie Company who had been made parties defendant to said action appeared therein, and afterwards such proceedings were had in said foreclosure action, that on the 7th day of November, 1877, a judgment and decree of foreclosure of said mortgage described in said amended complaint was duly rendered and entered therein, a copy of which appears in said Appendix, being No. 9 of Exhibit L, commencing on the 93d page thereof, to which reference is hereby made.

That, among other things, the said judgment and decree substantially set forth and described in general terms all the said property described in said schedule (Exhibit M) last above referred to, and in substance and effect ordered, adjudged and decreed in the premises; that the total amount of principal and interest due to the plaintiff at the date of the judgment was the sum of $29,789,290.20; that all and singular the mortgaged premises, franchises and property, including the property described in said schedule (Exhibit M), be sold in one parcel, by and under the direction of one George Ticknor Curtis, Esq. (who was thereby appointed a referee for that purpose), subject to certain liens and encumbrances, charges and payments, among which was the payment of the amount of lawful indebtedness of said Hugh J. Jewett as Receiver existing at the time

of sale, and that said Referee should, after said sale, make a report thereof to this Court, and after his report had been duly confirmed, that he execute a deed or deeds of said property so sold to the purchaser or purchasers at such sale, his or their assigns, and by the said judgment the said Erie Railway Company and the said Receiver was authorized and directed to execute and deliver proper conveyances and assignments of all and singular the property so sold by the said Referee to the said purchaser or purchasers, their representatives or assigns, who should be thereby fully vested with, and should hold, have, possess and enjoy the said franchises, property and premises sold in pursuance of said judgment. That after paying certain fees, costs and expenses, and taxes and assessments, specifically described in said judgment, the said Referee was directed to pay to the plaintiff the remainder of the proceeds of sale to apply on said amount due, or so much thereof as would satisfy and discharge the

same.

In pursuance of said judgment and decree, and on the 24th day of April, 1878, all of the said mortgaged premises, franchises, and property, including the said property described in said schedule (Exhibit M), were sold at public auction by said Referee, and the report of said sale was afterwards filed and duly approved and confirmed by this Court, as were also the proceedings of said Referee, and the sale of the property described therein, by the order of this Court (a copy of which report and said order of confirmation appears in said Appendix, being Nos. 10 and 11 of Exhibit L, commencing on the 108th page thereof).

And whereas it substantially appears from said report of sale that said sale included all the property set forth and described in said judgment, and also in said schedule (Exhibit M), and that the same was sold in one parcel to Edwin D. Morgan, J. Lowber Welsh and David A. Wells, as Trustees, for the sum of $6,000,000. That said property was sold subject to certain mortgages, contracts and claims, as encumbrances, among which was included the payment by the said purchasers of the amount of the indebt

edness of the said Receiver existing at the time of sale, the maximum amount of which the said Referee had announced at the sale as being the sum of two millions of dollars. That after the entry of the said order confirming said sale, and on the 26th day of April, 1878, the said George Ticknor Curtis, as Referee, and the said Erie Railway Company, under the direction of this Court, executed and delivered to the said purchasers, Messrs. Morgan, Welsh and Wells, deeds of sale, conveyance and assignment of all the property sold as aforesaid, and described in said judgment and report of sale.

(That copies of said deeds appear in said Appendix, being Nos. 15 and 16 of said Exhibit L, commencing on page 152 of the same, to which reference is made.)

And afterwards, in pursuance of the statute of this State, in such case made and provided, namely, Chapter 446 of the Laws of 1876, the said purchasers did associate with themselves certain other persons, and with them did take such proceedings that on or about the 27th day of April, 1878, the said purchasers and their associates became a body politic and corporate, under the name of the "New York, Lake Erie and Western Railroad Company," and afterwards, aud on the same 27th day of April, 1878, the said purchasers, Messrs. Morgan, Welsh and Wells, did execute, under their hands and seals, and acknowledge and deliver to the said corporation, The New York, Lake Erie and Western Railroad Company a deed of sale, conveyance and assignment of all and singular the said premises and property, so as aforesaid conveyed and assigned to them by the said Referee, George Ticknor Curtis, Esq. (a copy of said deed appears in said Appendix, being No. 17 of said Exhibit L, commencing on page 161 of the same.) That afterwards, and on or about the said 27th day of April, 1878, the said corporation The New York, Lake Erie and Western Railroad Company, claimed of aud from said Hugh J. Jewett, Receiver, that under and by virtue of the said judgment of foreclosure, and the sale thereunder, and of the said several deeds of conveyance, and by its undertaking to in

demnify the said Receiver against all and singular his indebtedness and liabilities as Receiver, which it had done to the satisfaction of said Receiver, that it, the said The New York, Lake Erie and Western Railroad Company, was entitled to have and receive from said Receiver the transfer and delivery and the possession of all the property and franchises embraced in the said judgment, and the said several deeds of conveyance, which embraced and included all the property and franchises of every kind and description then in the posssession of said Hugh J. Jewett, Receiver, in all of the said three actions, the transfer, delivery and possession of which the said corporation, The New York, Lake Erie and Western Railroad Company, claimed and demanded of said Receiver.

That afterwards, and on the petition of the said Receiver, made in said foreclosure action, an order was entered in said foreclosure action on the 3d day of May, 1878, by which, among other things, the said Receiver was ordered to transfer, deliver and surrender to the said New York, Lake Erie and Western Railroad Company, all the property and franchises whereof he was then possessed as Receiver in said foreclosure action, and which were embraced or intended to be embraced in the said judgment of foreclosure, subject to certain reservations and exceptions in said order specified, and subject to all and singular the rights of the People of this State, in and to the premises or any part thereof, as the same might thereafter be ascertained and determined in this action (and a copy of said petition and order appears in said Appendix, being No. 13 of said “Exhibit L,” commencing on page 144 thereof).

That afterwards and on or about the 1st day of June, 1878, the said Receiver transferred and delivered to the said The New York, Lake Erie and Western Railroad Company, said property and franchises described in said judgment and included in said sale, in manner and form as he was directed in said last described order.

That after the entry of said last mentioned order, and on or about the 20th day of May, 1878, the plaintiff in this action, on the petition of said

Attorney-General, obtained the order heretofore described as entered on the 20th day of May, 1878 (said order and petition being "Exhibit D" of said Appendix), whereby the undersigned was appointed referee, to take testimony in regard to said property and the rights and interests of the parties to this action therein, being the subject-matter of this reference.

That a copy of said mortgage that was foreclosed in the said action brought by said Trust Company, as heretofore stated, appears in said Appendix, being No. 1 of "Exhibit L," commencing on the 59th page thereof. This mortgage was delivered and went into effect March 15, 1874. (See stipulation of parties, "Exhibit N," page 237 of Appendix.)

That there were many other orders and proceedings in this Court in the said three actions that I have not herein specifically found and described, all of which, however, were submitted to me as a part of the testimony and proofs in this action, and reference may be made to the same by this Court or the counsel of either party, in accordance with the stipulation of the parties, made in open Court before me on the 14th day of June, 1878, and subsequently amended on the 6th day of August, 1879, a copy of which appears in "Exhibit N" of said Appendix, on page 237 thereof.

As a material fact or a conclusion of fact, appearing in the case from all of said proceedings in all of said actions, and affecting in a greater or less degree the rights and interests at law and in equity of the parties to said actions, respectively, and which should be stated in this connection, is the following, namely:

That after the entry of the respective orders in said actions, appointing said Hugh J. Jewett Receiver, and until the 31st day of December, 1875, all important motions and petitions affecting said Receivership and the estate and property of the same, and orders entered thereon, were entitled in each of the said three actions, and there was an appearance of the Attorney-General for the plaintiff therein. That after said order was entered in said three actions of the 31st day of December, 1875, in which it was stated that it was understood by the parties to said action that this