Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-04-05

Inc corporation BY its proper and cor
porste name is made q party, and been
duly executed with process. The bill
alleges on its face to be also against Its re-
spective stockholders, also the 'sholders
OF the bonds issued by the State;" ''the
holders of the. bonds issued to this COM
pany;" 1.-THE creditors of said company,
land all other persons interested in said
road or company, all of whose names and
residences are unknown" Gustavus A.
Henry AMI the county of Montgomery
are made parties as Stockholders, and,
perhaps, creditors and holders of bonds.
The bill recites the fact of the issuance of
two classes of bonds by the Stste-the
one beftre and the other since the war
also of the issuance of the second mort
gage bonds, and the execution of the
mortgage to secure the same, by virtue of
an act passed Feb. l, 1860, but alleges
that said mortgage, or the bonds issued
Hereunder, 'can in no wise affect the
lien and rights of the State or its pri-
ority; also recites the fact of the appoint
ment of the various receivers, and alleges
that that mode of relief had proved use
less and Intellectual because the roads
while in the hands of these had wholly
failed from the earnings to keep down
the interest.
As the State of Tennessee is the party
complainant, and the only party in inter-
est on the one side, we must look to its
bill, and the act of the Legislature,
authorizing its commissioners to file the
same, in order TO determine the object
and intent of the State in causing the
same to be filed, and what it desired to
accomplish by the proceeding, in order to
determine whether that object can be ac-
complished under the present proceedings.
On the part of the defendant, it is said
that the act of the Legislature authorizing
the institution of these proceedings is 8
strict letter of attorney to the persons
authorized to file the bill, and that they
were bound to execute it literally, or not
at all. / shall only notice this argument
upon the exact point for which it was ad-
duced, and not discuss it with reference
to the general powers of the States So
hcitors. The act of the Legislature does
undertake to name by classes, or general
designation, the persons to be made de-
PENDANTS to the bill and who were to be
brought before the court. This would be
entitled to great respect from court of
the State and its officers. simply as an act
of the General Assembly, and also as an
opinion of that body as to who were the
proper parties to be brought before the
court in this character of proceeding.
But if that act had required parties to be
brought before the court, such parties
having no interest in the proceedings,
and who under the rules of practice
as known and acted upon by courts of
equity III the State, would not be either
necessary or proper parties, justice to such
parties, as well as respect for rules of
practice as regards parties, would not al
low the act binding upon the court.
therefore conclude that the general desig-
nation of parties, as in this act contained,
was made more out of suggestion and
precaution, than an effort, on the part of
the Legislature, to change the rules of
parties and establish other and different
rules; leaving it to the court aided by
counsel to see that these rules were car
ried out as far as can be. On the other
hand, doubt very much if the Legisla-
ture could require proceedings to be in
stituted in any court, and have the same
carried on without necessary and proper
parties, in such manner IS to affect such
parties in the least. So | shall proceed
to regard the question of parties to this
suit as l would to any other suit without
any further reference to the act of
the Legislature directing these
proceedings to be instituted, and
determine the question of the
sufflciency Of the plea, regardless of this
act, but upon the principles and rules
governing courts of equity.
1t is said on the part of the State, that
all the persons named in the plea, and re-
quired by the act, are made parties to the
bill, tEst they ale designated in the bill
by classes, as stockholders, holders of
bonds issued by the State, holders of
mortgage bonds, etc., describing them by
classes and relation, and that the
plea is therefore not allowable because it
is contradictory to the bill that the
persons named are described by the same
terms of designation that the Legislature
used, and that it is further stated that their
if known are too numerous to mention.
Did the Legislature intend by the de-
signstlon of classes by relation to change
the rules of the courts, the general and or
binary rules being that the name and res
idence of the party sought to be affected
by the decree, was to be given and pro-
cess prayed against him? The Legisla-
ture merely used terms of description,
descriptive of the character and relation
of the parties it thought necessary to the
suit; did it by 80 doing undertake to de-
clare that similar description in the bill
would be sufficient If the Legislature
were to require suit TO be instituted
against the lessees of the Penitentiary,
would it be held that bill filed against
the lessees without naming the persons
who were such, would be sufficient de-
signstion of parties, or would authorize a
decree against these lessees by name and
personally especially if the lessees were not
q corporation, or if it were to authorize
suit against the sheriff or revenue col.
leCtor and his sureties, that it would be
q compliance to file the bill or declaration
and issue the summons in hCgc Uerbd2 /
do not think such was the intention or
meaning of the Legislature, or that in
the passage of the act in question it was
ergarded that such radical and ques-
lionable changes were being made
in the law. l think the Legislature
only intended by the designation Of
stockholders, bondholders, ETC., to indi-
cate the class of persons TO be sued, and
without naming the persons individually,
it was content to indicate them in this
general manner, leaving it to the authors
of the bill to name the necessary persons.
1t will be observed that am now upon
the question whether the plea contradicts
the bill in the allegation that the persons
named are not made parties. /, there
fore, conclude this branch of the case,
having reached the result, that the general
designation of class of persons, as
stockholders, boDdholders, ETC., does not
make, without more, the individuals who
are stockholders or bondholders, parties
to the bill. And that in this respect, the
plea does not contradict the bill.
1t is further said on the part of the
State, that sudh general terms of descrip.
ton of parties, is cured by the statement
that these names and residences are I'M
known, especially when some of the de-
PENDANTS upon whom the court might act,
ara bofo,a - The defendant rep1ipe 10