The New York herald., 1878-01-12

catco or amcnQcu Dy strlklnR OOJectionaOlo pro-
visions, and that in the meantime tho Judgment may
be stayed. The petition on behalf OF DoBetz, Bore
hard and Levita in the language substantially,
the only difference being that these persons do
scrbed as holders bonds secured by the second
called consolidated mortgage, under which mortgage
the judgment this action was rendered Tho names
OF these last mentioned petitioners to DO regarded
respectively as aliases Of James McHenry, this TACT
being made clear by tho proofR
TUX NOVELTY THE APPLICATION
The first feature common 70 both OF these petitions
that challenges tho atten ton OF the Court
city OF an application tho part OF strangers
cause which after having been pending for moro than
two and hall years has passed to nal judgment, for
loave in and upset everything that has boon
donc ana orderly course OF lltiga tion be-
tween tho plaintiff and defendant The second reason,
and one that will he likely challenge tho attention
and the suspicion OF the Court that McHenry,
one Of the petitioners, complains that the trustee
openly processes to act In the interest OF the holders
Of tho second consolidated mortgage bonds and refuses
to enforce foreclosure Of the FIRST consolidated
gage tho enforcement OF which would obviously bc
destructive all interests secured by the second
solidat cd mortgage. whe at the same tmc and by he
lawyers so-caiied second consolidated bondhold
ers are attacking the proceedings which McHenry
says are beneficial to them and prejudicial to him.
The third is that both these classes OF bond
espousing the cause OF judgment creditor whose
rights whatever thoy are nre in manifest hostility 10
the rights OF these bondholders There would secm
here to be neglect Of even that appearance OF sim
certy which is ordinarily observed These, however.
but "he trappngs and tho su its Of knavory but
while all ''the iorms modes and shows Off fraud
arc apparent and leave no doubt IN the judicial
mind that falsehood and deceit employ ing tho
forms OF law for concealed and sinister purpose, the
Court Is not left presumption. The TACT does
inference, however strong Is proved These
petitions, then, are not bond de applications In tho
hOt MIR inst
and agencies for the examination oil a portentous
conspiracy prosecuted by any and all means likely TO
lead to success. But treating them Tor the sake OF
argument, what they are not, real and honest ap-
plications, ON tho footing Vf supposed right, II Is
both pc,itons that by petition when preferred
by party "a decree neither be added ~ nor al
tcrod." Therefore this judgment and decree could
not be overhaulcd on the petition OF a party. Much
less can It be done by strangers, and as mere Incl
dent and sequel to petition TO be made parties, with
disregarding fundamental rule OF practice The
judgment cannot DO disturbed except q motion Tor
rehearing brought on In duo form BY party 10 tho
cause.
In the next place. Il Is here submitted that there 10
no authority TO be found in the rules Of cnancery
practice for petition TO be made party to cause.
situated that MS interests be anected
by the result OF litigation between Other parties,
and who therefore desires to Interfere Tor his own
protection, must file bill In the nature Of sup
Elemental bill II Is clear, then, from the Code that
person seeking admission as party TO cause must
party and II ne docs not show this then on his own
application the cause he may Lc let in and after hc
Is In and not before, or as part Of the process OF get
ting in initiate according TO the practice OF
tho court, any proceedings necessary to the defence
OF his rights. Probably nothing more extraordinary
In point OF law was attempted than this under.
taking of a bondhoder TO drag his trustee
into another action where neither has any right TO
be- and there try the first place to eject him from
ms trust on aidavts embracing charges OF fraud and
misconduct, and In the second place TO appropriate
the action into which he had so intruded TO the ex-
ecuon OF the trust alter his own fashion. IL Is very
much II person vi ct arms were to turn another
out OF hts own house in order to appropriate 1t TO
some particular uses Of his own. The petition OF
McHenry therefore, Is submitted, must be dismissed
LEvfrA's PETITION.
AS TO the petition Of Lcva and others, proved con-
fodcratcs OF McHenry IN the enterprise Of wrcckng
this great corporation ana actually represented by the
same lawyers, there are very many reasons why II
cannot granted. First, there Is no color OF proof
that they hold any bonds. To see this It is onIy
necessary 10 look at the petition, and, tins
20 be nsedful to go much further. But tho parties
10 the action prove aflrmaveiy that thcy are mere
o s Of
which they complain having been on foot Tor moro
than Two years and half and having been during all
that patent TO tue world, the law says TO them,
you cannot spring out like Thugs from their Indian
junglcs Bedouns upon passing caravan and arrest
rehabilitation on the Of their consummaton. rei
crcnce the settled rules OF equity practice govern
ing the rights oil parties TO Cause TO examine into
thereto, and tho method Of dong So will
put III still stronger lgh. the anoma-
rights of the parties the governed by these
rules; II they required to state their objections
with precision, and then 60 before master on these
precise objections, II is very plain proposition that
these petitioners have not, nor have either oil them,
the right 10 be made parties for tho purpose OF over
hauling tho receivcr's acc0unts and IT Is equally
clear that II their application was limited TO prayer
for leave 70 bcioro tho referee ana there inquire
receivers accounts, the loose vaguo anu un
certain allegations Of the petition would make 20 case
even for that Kind and measure OF relief. Tho ro-
cevcr has in this case exactly followed the rules OF
law defining tho duties, rights aud liabilities oil re-
cciyers appointed to manage raroads He mas
accounted monthly before inc referee III the presence
OF all the parties tho cause, and has In all matters
the Conrt 1t requires no argument 10 show that all
the Indebtedness OF tho receiver incurred In the mau
ngemen o. the property s as botwccn tho Court ana
the creditors Of the receiver, lien upon the properly
preferential to any other, being IN TACT ana ~ law
part tho expenses incurred the Court in the care
ana management ot the property. This Is not oe-
batablc question. 1t Is sclf-evdent Equally 30 Is
| the proposition mat all questions touching
the receiver's Indebtedness are matters TO
be inquired into before tho rsfcrec ny any
this ccsc tho rescivcr has himself invited
the referee TO give any pnry In interest
every facility for that purpose II, on soch inquiry,
II shall appear That tho recover has made any i'm
proper expenditure, and case ID n'nue ina. wouo
Iustiy tho Court in opening the receivers seicd ac-
counts then, however unfortunate IL may oc LOT hm,
| they will have to uc opened But all this Is mere
matter OF accounting before the referee. Inc crca-
itors OF receiver nave nothing 10 40 WIN ". II
the receiver and bondsmcn aro shown 10 be liable
TO do VITA that. They cannot be deprived OF the'I
lien. Tho property Is their debtor ana inc properly
must pay them
As TO the petition on behalf Of the infant Zagge
70 spsa AMI reform ths judsnent u V fonndsa spos