Page:Federal Reporter, 1st Series, Volume 2.djvu/311

  $50,000 in the debentures issued by the court, and in the bonds of the $15,000,000 issue at the percentage upon their fair value equal to the dividend to which they would be entitled upon a distribution of the proceeds of the sale, is not inequitable. Substantially, such a provision in a decree met with the approval of the United States Supreme Court in Ketchum v. Duncan, 6 Otto R. 659.

The bill, also, in attacking the sale charges the trustees with neglect in respect thereto, amounting to fraud. I am not prepared to admit that the allegations of the bill in that behalf entitle the complainant to any relief.

In the order confirming the sale the following provision was inserted: “This order is made by and upon the consent and at the request of the trustees, the complainants, and upon the consent of the parties defendants, * * * and the right to make any further order order is reserved.” In view thereof I think the complainant, if entitled to any relief against the sale and the confirmation thereof, on petition and proper showing, might be admitted a party to the original foreclosure suit, and his objections would then be considered. He can have such opportunity at the next June term of the court.

The demurrer is sustained and the bill dismissed.

v.

(Circuit Court, S. D. Ohio. ———, 1880.)

Sage & Hinkle, for plaintiff.

Matthews, Ramsey & Matthews, for defendant.

, (charging jury.) This action is brought by the