Page:Federal Reporter, 1st Series, Volume 1.djvu/369

 BTËWABT V. CHBSAPEAEE & OHIO CANAL CO. 361 �Stbwakt w. The Chesapeakb and Ohio Canal Co. and others. �(Circuit Court, D. Maryland. March 5, 1880.) �SxriT ITT Equrrr — Suit PENDiNa In State Coukt — Different Grounds B-OB Relief, — A bill flled in behalf of the holder of certain corporation bonds secured by a trust mortgage, alleging the refusai of the trustees to proceed under the mortgage according to its provisions, and a misappro- priation by the defendant of the tolls and revenues mortgaged, vcill not be disraissed bocauso a bill, to which such trustees were made parties, had beon previously filed in the state court to determine the priorities of the varions lien creditors of the defendant corporation. �Same — Parties — Non-uesideut Trustee. — A non -resident trustee is not a necessary party to such suit, where four ont of flve of such mort- gage trustees have been served with prooess and have duly answered. �Same— Same — State of Maryland. — The State of Maryland is not a nec- essary party to such suit, although it owned four-flfths of the wliole capital stoclc of the defendant corporation, and held a prior mortgage upon ail the property of such corporation, including its tolls and rev- enues, when, by a subsequent act of the legislature of that state, the corporation had been dulyauthorized to mortgage its tolls and revenues to secure another loan and issue the bonds in suit for the same, and when it had been further enacted that the riglits and liens of the state upon the tolls and revenues of the defendant should be " waived, deferred and postponed" in favor of the bonds so issued, so as to make such bonds, and the interest accruing thereon, pref erred and absolute liens on the revenues of the defendant Company, until such bonds, with the interest tliereon, should be paid. �Peb Cueiam. This suit is brougiit by Daniel K. Stewart, an alien, as a holder of the bonds issued by the defendant Company, in his own right, and for the beriefit of such others- in like interest as may come in and support the suit. The facts alleged and admitted, which are necessary to detei'mine the questions now submitted, are briefly these : The state of Maryland, desiring that a canal should be built from tidewater to Cumberland, in that state, chartered the defendant corpora- tion and became a stoekholder in it to the extent of 50,000 shares, each of the value at par of $100. This was about. five-eighths of the -whole capital stock. From time to time, the corporation being unable to complete the canal with the money received from the subscriptions td its stock, the state loaned to it further sums of money, to secure the repaymei t ��� �