Page:Federal Reporter, 1st Series, Volume 9.djvu/808

 WEBB V. VERMONT CENTEAL B. 00. i\}0 �Webb and others v. Vermont Central E. Co. and others. �{Circuit Court, D. Vermont. October Term, 1881.) �1. Thusts — Action by Cestui que Thust m His Own Namb — WnEU It Can BE Maintainbd — Dbmdrrbr. �A bill inequity is not deraurrable because brought by a Mstni que trust in his own Dame and on his own behalf, where it appears in the bill that the trustees havc acquired adverse interests and been made defendants. �In Equity. �William G. Shaw and Francis A. Brooks, for orators. �Bevjamin F. Fifield and Daniel Roberts, for defendants. �Wheeler, D. J. The defendants, the Vermont Central Railroad Company, the Central Vermont Railroad Company, John Gregory Bmith, Worthington C. Smith, and James R. Langdon, demur to the bill, and the cause bas been heard upon the demurrer. The orators are second-mortgage bondholders of the Vermont Central Railroad. The defendant John Gregory Smith is a trustee in the first mortgage ; Worthington C. Smith is a trustee in the second mortgage ; and both of them and the defendant Langdon are officers in the Central Ver- mont Railroad Company, which is in possession received from the trustees of the first mortgage. �One cause of demurrer assigned is that the bill does not show suf- ficient reasou for the bondholders to proceed in their own names and behalf. But the bill does show that the trustees have acquired adverse interests and stand in a hostile position, so that they cannot maintain the orators' rights without attacking their own. They could not be orators against themselves, and this is a sufficient reason for making them defendants where the orators' interests were in suit, and with them as defendants there would be no one to prosecute the orators' «laims but the orators themselves. The bondholders are the real owners of the mortgage interest, and the trustees have but a dry legal title, and when they hold that title in opposition to the bondholders the latter have good ground for proeeeeding in their own behalf to protect such rights as thej' have, and the proper position of the trustees in the proceedings is with defendants. This cause of demurrer cannot prevail. �Another ground is a want of equity in the case made by the bill geherally. While being considered on this question the bill cannot be aided by what is stated elsewhere or by what is known in some other way, but must stand alone for examination, with all its allega- tions taken for this purpose to be true. It states the prior mortgage ��� �