Page:Federal Reporter, 1st Series, Volume 10.djvu/617

 HEEOANTILE TEtTST 00. V. PORTLAND * OaDBNSBUBO B. 00. 605 �ern Une of the state, and the second, from Portland to Bartlett. The bill goes on to allege that interest bas been paid regularly on the debt secured by the first mortgage, but that the payments have been made, in part, out of earnings wbicb should have been devoted to the payment of the debt secured by the second mortgage, and no interest has been paid on that debt since May, 1876. It prays that an account may be taken of the earnings received for the different parts of the road; for payment of the amount due the plaintiff, or, in default, for a foreclosure; for a receiver, and for other relief. �I consider that cause of demurrer to be well assigned which ob- jecta that the trustees of the second mortgage under which the plain- tiflf claims have not been made parties. They may have good rea- sons to give 'why a receiver should not be appointed; to show why they have not taken possession of the road, if they have not; to see that all bondholders are protected, etc. The reasons for their being parties are many and familiar, It seems that they live in Maine; but the statute of 1875, c. 137, § 8, provides for summoning into the circuit court all such absent parties where there is property with- in the jurisdiction upon which a lien is claimed. It is argued that Judge Wheeler decided, in Brooks v. Vermont C. R. Co. 14 Blatchf. 463, that the bondholder could proceed without the trustees; but what he said was (page 466) that the bondholders could proceed, whether the trustees would or not, by making them defendants. �In Mercantile Trust Co. v. Lamollle Valley R. Go. 16 Blatchf. 324, the trustees were parties defendant, and the court merely decided, so far as the present case is concerned, that the bill need not allege a request to the trustees to foreclose, and their refusai. �Again, it is said that the mortgage imposes no duties upon the trustees, and invests them with no rights, but gives them merely the dry, legal title. But the bill alleges that the mortgage was made by virtue of the laws of Maine and New Hampshire, and the laws of Maine have a chapter devoted to this subject, which relieves the parties from the necessity of providing therefor in each mortgage. �The demurrer is sustained. The plaintiffs may amend within 60 days. �Note. The court may, in an order for appearance of a non-resident defend- ant, flx any day certain for his appearance, and is not limited to the usual rule-days in equity. Forsyth v. Pierson, 9 Fbd. Rep. 801. Such order may be made upon a proper showing by affldavit alone. and a marslial's return " not found " in the district ia not a condition precedent to the making of it. ��� �