#### Landis *v.*Western Pa. R. R. Co.

In a bill filed to foreclose railroad mortgage, given by the Northwestern Railroad Co., the decree authorized such bondholders as should become purchasers to pay their bids in bonds. The railroad was purchased by Hirst for certain bondholders, and a master was appointed to report distribution and the form of the conveyance. The master reported that Hirst purchased on behalf of certain bondholders named, not including the plaintiff in this action, and of such others as might wish to join in the purchase and pay their proportions of the purchase money and expenses, and that the property was_bought to sell again, and that, at a meeting of the bondholders, it had been agreed that the holders of three-fourths in amount of the bonds should have power to order a sale, etc. The master also reported a form of deed to Hirst, which was approved by the court and executed, in which it was recited that it was in trust for all the bondholders. Afterwards, in pursuance of such order by the holders of three-fourths of the bonds, Hirst sold, free and discharged from all trusts, to the Western Pa. R. R. Co., a company organized by the purchasing bondholders to succeed the Northwestern Railroad Co. The Act of March 22, i860, incorporating the Western Pennsylvania Railroad Co., recited that said company was composed of persons named, and “ all others who hold mortgage bonds,” but the preamble set out the deed to Hirst “ in trust for all the bondholders who participated in the said purchase,” and that it was desirable “ to reimburse the said bondholders for the expenditure of money and labor.” The supreme court held that Hirst’s'duty was to distribute stock to such bondholders as participated in the original purchase, or subsequently exercised their option to come in within such reasonable time as not to prejudice the rights of others ; that such option could not be exercised after the deed was made from Hirst to the defendant clear of all trusts ; and that bondholders not availing themselves of the option were turned over to the proceeds of the sale.

A re-argument was refused which was asked on the ground that all bondholders were purchasers, otherwise their property was taken without their consent or without notice.

Also on the ground that the action of the court below in this case in entering Judgment for want of a sufficient affidavit of defence could be sustained, because the plaintiff’s statement averred as a fact that all the bondholders were recognized as before the court and as purchasers at said sale, and the affidavit did not deny it.

*756April 10, 1890.

Motion for re-argument of Appeal, No. 53, Jan. T., 1890, from C. P. No. 3, Phila. Co., reversing the action of the court making absolute a judgment for want of a sufficient affidavit of defence. Reported in 133 Pa. 579. Green and Clark, JJ., absent.

The facts of the case, necessary to an understanding of the application for a re-argument, are chiefly stated in the syllabi.

Plaintiff’s statement averred, inter alia, that the property was purchased by William L. Plirst, who acted as attorney-at-law for certain bondholders, and as to all the remaining bonds, including plaintiff’s, “ as the agent and attorney of the holders thereof, and requested, on their behalf, that they might be permitted to participate in the purchase so made by him.” A decree was so made by the court, and the proportion of the purchase price due to each bond, including plaintiff’s, was credited on account of the purchase price. “ No notice, actual or constructive, was ever given or attempted to be given to any of the bondholders to come in upon the fund, because all were recognized as before the court, and as purchasers at said sale.”

The reasons assigned for the re-argument, were as follows:

“ i. The opinion filed states that the averment in appellant’s affidavit of defence that the deed by William L. Hirst to appellant, was made ‘ fréed and discharged of and from all and every trust and trusts whatsoever,’ was an answer to plaintiff’s averment that appellant ‘ agreed to issue all the stock required by the said Act of Assembly of March 22, i860, and said proceedings,’ which averment is not denied by the affidavit. This conclusion is erroneous, in view of the undisputed fact that the consideration of the deed was the agreement to issue stock.

” 2. The opinion filed reached the conclusion that the purchase, under the foreclosure proceedings set out in the statement and affidavit, was only for the benefit of such persons as signified their intention to become purchasers. It is submitted that this conclusion is erroneous because

“ 1st. The record shows that Mr. Hirst did in fact appear as agent and attorney for every one not represented.

“ 2d. Because the supreme court recognizes this and so decreed and made no attempt to call in the bondholders to claim on the fund raised by the sale.

“ 3d. Because the master reported and the supreme court conr firmed the report setting out this appearance and had the deed made accordingly.

“ 4th. Because the statement filed avers as a fact that all the bondholders were recognized as before the court and as purchasers at said sale, and the affidavit does not deny it.

“ 5th. Because any other conclusion than that all were recognized as purchasers would convict the supreme court in the foreclosure *757proceedings of disposing of the bond-holders’ property without their consent and without even an attempt to notify them.”

May 5, 1890.

*Alexander Simpson, Jr.,*for the motion.

Per Curiam,

Re-argumcnt refused.