Page:Harvard Law Review Volume 10.djvu/175

149 tion a mark of a good judge will hardly cover this extension of jurisdiction over such vast interests at the sole instance of the debtor. To amplify is not to seize without due regard to established legal practice, or the sound and usual conditions heretofore regarded as essential. The wishes and views of failing debtors are not good guides for judicial action. As between debtors and creditors under railway mortgages, would not the sound rule for courts be to leave the question of the disposition and handling of the mortgaged properties to be settled outside of courts, as a purely business problem, rather than to allow the debtor to dispose of the pledge before the creditor can exercise any choice or adopt any active policy? In other words, is not the recent practice here discussed as far lacking in soundness of principle as it is fruitful in undesirable results?

It has sometimes been said, on the other hand, that if the debtor company and the creditors both unite in the application for receivers before default, all objection is removed. In such case, on the, contrary, does not the chief and fundamental objection remain, namely, that courts of equity have no proper jurisdiction to deal with property or property interests in this summary and sweeping way except when a case of actual default has arisen which gives the right to creditors under the terms of the mortgage to proceed to enforce their remedies as they may themselves be advised at that time? An ordinary railway mortgage expresses the remedies available to the creditors or bondholders, as well as the rights reserved to the debtor. In view of such an express, carefully and mutually guarded contract, is it wise or just or proper, in a legal sense, for courts to do more than aid, as they may be called upon by those asking for such remedies or asserting such rights, in enforcing the contract of the parties? Is the plea of threatened injury, even to all interests, by delaying till default, a good one.? Might not courts respond to such applications more safely, and with better results, by reminding both debtor and creditor of the fact of their own free, written contract, and there leave them? Is not any other course open to pretty certain abuse?

D. H. Chamberlain.

, 1896.