Page:Federal Reporter, 1st Series, Volume 2.djvu/45

 38 FEDERAL EBPOBTEB. �rangements which were made the preferred stock was issued with the certificates in the form referred to, and these certifi- cates were issued for the certificates isaued by the trustees, �Before stating the form of the certificates, we may refer to the mortgages or deeds of trust which are sought to be fore- closed in the original and cross suits. One was executed December 24, 1867, by the railway company to Allen Camp- bell and J. U. P. Odell. This waa on the railway from Cin- cinnati to East St. Louis, and including the branch to Lou- isville in a certain contingency; and another deed of trust or mortgage was executed March 25, 1871, by the 0. & M. Co. This is called the second mortgage, and recites the lien and priority of $6,800,000 of first mortgage bonds. 'This last mortgage was made to seeure $4,000,000 of bonds. The cer- tificates which were issued to the stockholders were in the following form : �"Thia is to certify that. is entitled to �ehares of the preferred capital stock of the Ohio & Missis- sippi Eailway Company, of one hundred dollars each, trans- ferable only on the books of said company in the city of New York, in person, or by attorney, on the surrender of this cer- tificate. The preferred stock is to be and remain a first claim upon the property of the corporation after its indebtedness, and the holder thereof shall be entitled to receive from the net earnings of the company seven per cent, per annum, pay- able semi-annually, and to have such interest paid in full for each and every year before any payment of dividend upon the common stock; and whenever the net earnings of the corpo- ration, which shall be applied in payment of interest on tha preferred stock and of dividends on the common stock, shall be more than sufficient to pay both — said interest of seven per cent, on the preferred stock, in full, and seven per cent, divi- dend upon the common stock for the year in which said net earnings are so applied — then the excess of such net earnings, after such payments, shall be divided upon the preferred and common shares eoually, share by share." �It is insisted by the preferred stockholders that because of their ownership of stock in this way they severally bave a lieu ����