105; Twiss vs. Cheever, 2 Allen 40; Lannan vs. Smith, 7 Gray 150.

In the case at bar, the subject-matter of the contract was sufficiently definite and certain; its subsequent existence was reasonably sure; and the mortgagors had an existing interest in, and title to, the other property then mortgaged, of which this was to be an essential part, necessary for its use, to be added to it for the purpose of finishing it. It is entirely unlike the case of a changing stock of goods.

The mortgagors had a charter for a railroad, with all the necessary franchises and rights for its construction, equipment, and operation. The mortgagee had previously contracted to construct and equip it for the company; and the work had been commenced. He was to be paid partly in the bonds of the company, which would sell in the market. Thereupon they mortgaged to him, and in trust for the holders of the bonds, their franchise, road, rights of way, materials, buildings, completed, or in process of construction, "including all cars, engines, and furniture, that have been or may be purchased for or by said company," to secure the contract "for the construction and equipment of said railroad," and to secure the payment of the bonds to be issued to the mortgagee, to him, "or to his assigns, who shall become the holders of said bonds."

A large part of the numerous railroads in this country have been constructed by the aid of mortgages, to individuals, or to trustees. Many of these mortgages, perhaps most of them, embrace, specifically, engines and cars, to be subsequently acquired. As they are made to secure bonds not to be due for many years, and the rolling stock is perishable, unless such future acquisitions can be mortgaged, as incident to, and essential to the use of, the railroad itself, the security is liable to be greatly diminished. The question is one of great importance in respect to the interests involved in its determination. Nor is it a new one. It has been considered by several courts of the highest respectability; and such mortgages have been sustained, not only as to existing property, but as to that subsequently acquired. Pierce vs. Emery, 33 N. H. 484; Seymour vs. C. & N. F. Railroad Co., 25 Barb. 286; Trust Co. vs. Hen

drickson, 25 Barb. 484; Coe vs. Hart et al., 6 Am. Law Reg. 27; Pennock vs. Coe, 23 Howard 117; Phillips vs. Winslow, 18 B. Monroe 531.

In nearly all these cases the question is discussed with much research and force of reasoning. And, in the absence of contrary decisions, they constitute a weight of authority not to be disregarded, unless it can be clearly shown that they are erroneous.

In some of them, the companies were specially empowered by legislative acts to mortgage their property and franchises. In the case of Howe vs. Freeman, 14 Gray 566, such a mortgage was upheld on the subsequent confirming statute, with an intimation. that otherwise it would have failed. But the general question was not considered by the Court. The power of a corporation, without any legislative act, to mortgage its franchises with other property, to secure its liabilities, has never been questioned in this State, though such mortgages have been common for many years, and rights under them have been determined in this Court. The weight of authority in this country is in favor of the doctrine that the power to mortgage is incident to the rights granted by the act of incorporation. Even if the franchise to be a corporation cannot be assigned, "the franchises to build, own, and manage a railroad, and take tolls thereon, are not necessarily corporate rights; they are capable of existing in and of being enjoyed by natural persons, and there is nothing in their nature inconsistent with their being assignable." CURTIS, J., in Hall vs. Sullivan Railway. At most, it would seem that an assignment can only work a forfeiture. And if the State waives such forfeiture, the question cannot be raised collaterally by other parties. The cases on this subject are cited and reviewed in Redfield on Railways, § 235, notes 19 and 20. The mortgage, in the case at bar, of all the franchises and property of the corporation, is as effectual between the parties to it, as if, like those in some of the cases cited, it had been made under a special act of the legislature. Whether the assignees of the mortgage, without any further proceedings, legislative or judicial, will have all the corporate rights of the company, is not a question now presented. The subsequent statute of 1852, prohibiting any com

pany from assigning any rights under its charter without the consent of the legislature, expressly excepts mortgages made to secure debts of the corporation, and recognises their validity. R. S., ch. 51, sec. 31.

In the case of Trust Company vs. Hendrickson it was held that, as between mortgagors and mortgagees, the engines and cars were fixtures, so that, without any express grant, they would have become the property of the mortgagees by being attached to the railroad. If they were fixtures, that result would follow, although they were not in existence when the mortgage was given. That they have some of the qualities of fixtures cannot be denied. They are fitted to the gauge of the road, and are adapted to the particular use upon it. In the modern cases, whether an article is a fixture is determined more by such considerations, than by its being actually attached to the land. Without the rolling stock, the road is not only worthless to the company, but it ceases to be of any public use. Important public interests are therefore involved in the question.

But if the engines and cars are not fixtures, they are so connected with the railroad, and so indispensable to its operation, that there is a clear distinction between them and other kinds of personal property. They may well be held to be exceptions to the general rule that property not in esse cannot be conveyed. We do not mean to intimate that rolling stock to be subsequently acquired could be mortgaged without the railroad. But when the railroad itself is mortgaged, with the franchise, the rolling stock to be acquired for the purpose of completing or repairing it is so appurtenant to it, that the company have a present, existing interest in it, sufficient to uphold the grant of both together-the one as incident to the other. Their title to the railroad is the foundation of an interest" in the cars and engines to be acquired for its use.

If the rolling stock on the road should be removed," says McLEAN, J., in the case of Coe vs. Hart, it would defeat the liens of creditors to many millions of dollars, and put an end to the construction, if not to the maintenance, of railroads." In the case of Ludlow vs. Hurd, 6 Am. L. Reg. 493, STORER, J., remarks: "It

is very clear that we must regard it (the rolling stock), as appurtenant to a railroad; it is necessary for the working of it that ali this species of property should become a part of the road itself. It is essential to its use; and if denied, it is destructive to the purpose for which it was built." And in the case of Phillips vs. Winslow, before cited, the Court say that, in order to render the mortgage of the railroad effectual, it is necessary that it should embrace all such future acquisitions of the company as are proper accessions to the thing pledged, and essential to its enjoyment."

That a mortgage of a railroad and the franchises of the company, with all the rolling stock then owned and to be afterwards acquired and placed on the road, will create a valid lien upon cars and engines subsequently purchased, there would seem to be no longer any doubt. Redfield on Railways, § 235, notes 21 to 24; Pierce's Am. Railroad Law 531; Am. Law Reg., July 1863, 527.

The decisions sustaining such mortgages are not understood to be in conflict with those in which other mortgages of such property have not been upheld. The general rule, that property not in esse cannot be conveyed, is not abrogated. Nor will such mortgages be upheld in equity, any more than at law, unless they are within some of the exceptions to the rule. But if a mortgage is within. any of the exceptions it will be sustained, and the parties will be entitled to appropriate remedies.

What remedies will be open to them must depend upon the circumstances of each case. In Holroyd vs. Marshall, 9 Jur. N. S. 213, recently decided by the House of Lords, a registered mortgage of machinery in a mill, together with all that should afterward be placed therein in addition to or in substitution for that which was there at the time, was held to have created a valid lien upon the portion afterwards purchased, from the time when it was brought within the terms of the grant. And the rights of the mortgagee were sustained in equity, on the ground that the mortgagor, as soon as he purchased the additional machinery and put it into the mill, held it in trust for the mortgagee. Whether we should uphold such a mortgage, is a question upon which it is unnecessary to express any opinion. The case seems to be in conflict with that of Moody vs. Wright, 13 Met. 17. But in those cases in

which a mortgage of such property is valid, there would seem to be no doubt that it can be enforced in equity as a case of trust.

It has been suggested by counsel that, if the mortgage in the case at bar can be supported in equity, it cannot be in this suit at law. We have already seen that this action of trover must fail, because it is not an appropriate one in which to try the question of title. But if it were otherwise, the mortgage being sustainable in equity, the result would be the same. The property was in the custody of the Court, upon a bill in equity, which is still pending, brought for the purpose of determining the rights of all persons to all the property mortgaged. The suit at law is incidental to the bill in equity, having been brought by special permission of the Court. It cannot be permitted to defeat the proceedings in equity, in regard to any property embraced in the mortgage. If the equitable title is in the assignees of the mortgage, and they, or the cestuis que trust, are seeking to enforce their rights by a bill in equity, the property being in the hands of a receiver, it would be strange indeed if the whole proceedings could be defeated by the assertion of the legal title subject to the mortgage. The bill in equity having been commenced first, and the property taken possession of under it, all incidental claims, whether by a suit at law or otherwise, are merely interlocutory. Upon whatever property the bill is finally sustained, it will operate to convert equitable into legal titles. Therefore no suit at law, however appropriate, could be sustained for the possession of any property to which the trustees have an equitable title.

Upon the whole case, we are of the opinion that the mortgage to Myers created a valid lien upon the engines and cars as they were purchased and placed upon the road for the purpose of equipping it; and that the holders of the bonds secured by that mortgage will be entitled, if they claim it, to have the trust enforced, not only against the railroad, but against the rolling stock subsequently acquired.

Plaintiffs nonsuited.

The foregoing opinion, which has been care, has been furnished us by the prepared with great thoroughness and courtesy of Mr. Justice DAVIS. There