The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1878-10-26

! tive bondhOlders and the others are Inac-
| tive. Some OF them are represented by one
committee and others are represented by
another. but this does not constitute q class
| of bondhoiders; their interests are identi-
| cal. and one might as we'll say that because
bondholders under the same mortgage were
Represented in court by different counsel.
! that constituted them a different class OF
bondhelders, and that they were because
represented by different persons entitled to
be parties to the suit.
The moment petition is presented to
this Court by any party interested IN the
conduct or result OF this suit which alleges
that these trustees are derelict, incompe-
| tent, or partial in any action they propose
| to the Court. that petition shall be. as 1t is
entitled to be, respectfully heard; and if,
after consideration Of the proof, it shall be
ascertained that the petitioner is correct, the
trustees will be removed, and the bond
holders allowed to conduct the suit IN their
/ own way without the Intervention OF trus-
tees, except so far as they may be nominal
parties to it.
y And these petitioners, who now ask to be
made parties, plaintiffs or defendants, while
we refuse them the conduct OF the suit. or
to be made parties to it, are at liberty,
wherever a motion is made in this cause
w
forests Of their clients, to oppose it, as they
have done in this instance, by petition. II
the circumstances show bad faith on the
part OF the trustees, they will be removed
| and others appointed to conduct the suit.
! This serves all the purposes OF this petition
except that the bondholders represented or
alleged to be represented by the signerS OF
it may not have the right Of appeal from
any decree Of the Court which they think
unfavorabe to their specific and personal
| interests, unless made parties to the record.
Under those circumstances, when they
arise, we think any bondholder who feels
that his rights are injured by the action Of
the trustees, or OF the Court, has right to
be put in such position, either as plaintiff
| or defendant, as will enable him to have
them adiudcated by an appellate court.
That case is not presented to US by this Pc
tition, and the prayer OF it is, therefore, In
| this Instance refused.
JUDGE HUGHES DIFFERS.
Judge Hughes said: have differed so
seldom with the presiding Judge (Whose
| opinion is the law of the CourD that it is
with great reluctance that now express q
difference OF opinion. In the result at
which he arrives, in the decision just read,
concur substantially, as the petitioners
can gain all they now desire under the
ruling Of the Court.
think that the bondholders who did not
unite in directing the trustees to move In
this cause for foreclosure may Of mere
right be made parties defendant.
In considering the petition OF the Dutch
bondholders have been content to look at
the terms OF the trust-deed securing the
bonds Of the consolidated company. A pro-
vision OF that deed authorizes the trustees to
proceed for foreclosure at the direction OF
one. fifth of the bendholders secured. 1t
thereby classites these bondholders into
those who move in the suit and those
who fail or refuse to move. 1t has never
appeared affirmativcly in this cause how
many Of the bondholdcrs united in in
structing the trustees to proceed for
| foreclosure. That question, believe, went
| by default at the commencement OF the
| suit, which began with consent order
| for the appointment OF two receivers. 1t
now appears that the holders OF about two
millions OF the bonds are represented by
the trustees that the holders OF another
two millions are not in sympathy with the
trustees, and are here petitioning for a
standing in court with i view to looking
after their own interests: and that the bold
ers Of still another million and half OF
bonds are taking no part IN the proceeding
one way or the other. Thus the petit
tioners are neither actually nor presump-
lively complainantS in this cause. Inas-
much as the trust deed itself classifes the
bondholders into those by whose instruction
the trustees are acting, and those who may
see reason to dissent from that action; and
inasmuch as actual objection to the policy
OF the trustees is made by the holders OF the
imposing amount Of two millions Of bonds,
| it seems tn me that the Court is bound 10 re-
cognize the classification Of bondhoders
| made by the deed itself, and, OF mere right,
to let into the cause, in the person or per-
sons of some authorized representative, as
parties defendant, in the manner prescribed
by Rule As in Equity, the petitioners for the
Dutch bondholders.
| should prefer that this should be done,
and I have no douut the petitioners them
selves would prefer it to be done under their
original petition, in which they pray to be
admitted as OF mere right.
This would relieve them from the neces-
sity, which is doubtless an unpleasant one,
OF formally arraigning the trustees before
the Court for any sort OF derelction and
suppose, ii they were allowed, they
would withdraw their amended petition
and stand upon the mere right of being
W lHC CdGSC vi IIC, ClucS .CSuICL1i-
plated by the trust deed, who did not
move as plaintiffs, and who are not in
sympathy with the policy OF the trus-
tees. None but those bondholders who
gave instructions to the trustees to proceed
for foreclosure are technically or theoreti-
cally complainants in this cause; and I see
no technical irregularity and no violation
OF the theoretical or logical proprieties oil
equity practice in allowing to a large class
of interested persons who, under the terms
OF the trust-deed, cannot be presumed to
be represented by the trustees, or to be par.
ties complainant in this suit, either III law
or fact, a standing in court as parties de-
fendant.
WE ARE ALL HAPPY.
Judge Green, of counsel for Dutch bond
holders, said that the opinion Of the Court
was satisfactory to them, as it gave substan'
TALLY what they asked.
Mr.. MacFarland, of counsel for trustees
stated that the opinion gave, what the trus
tees had never sought to deny, rs the court
would bear him witness.
So 1t seemed to be satisfactory all around
Several petitions and claims were then
filed; among them one for payment OF L
bond OF the Norfolk and Petersburg rail
road, stolen from the Auditors office during
its occupation by the Federal military, and
now alleged to be the property OF bona Jidt
holder for value.
Judge Green prepared and presented to
the court an order which embodied his idea
OF the substance Of Judge Bonds opinion
Mr.. MacFarIand and Judge Shipman OBJ
iected to the order.
Judge Bond said that the Court would
prepare the order.