The Portland daily press., 1882-02-24
PORTLAND AND oGDRNsBURG.
Judge Lowell's Decision on the Suit of
the Mercantile Trust Company

The circumstances of the suit of the Mer-
camille Trust Company yersus the Portland
and Ogdensburg Railroad Company, have al
ready been reported and are again stated in
the opinion below. The case was heard by
Judge Lowell in the United States Circuit
Court, district of New Hampshire. Guy @.
Noble of st. Adams, VT, and Joseph W. Fell
lows of Manchester, N H., appeared as solici
tors, and Edward j. Phelps of Burlington, VT,
as counsel for complainant. Thomas H.
Haskell of Portland appeared as solicitor for
the defendant. The following is the decision
Of the court:
This case has been argued upon demurrer to
the bill. The facts alleged are that the Port
land and Ogdensburg Railroad Company ex-
lists by the authority of the States of Maine
and New Hampshire; that in 1870 it mort
gagged that part of its line which extends from
Portland in Maine to Bartlett in New Hamp-
shire, to secure bonds for $500, 000 that in 1871
it mortgaged the whole line from Portland to
the western sline of New Hampshire together
with its rolling stock owned or which might
thereafter be acquired. to q. K. Emery and
two others, as trustees, to secure bonds for $3,-
900, 900, and issued the bonds to the amount of
81, 900, 900 of which the plaintiff holds $4,000
and sues for itself and others in like interest
who may choose to come in and contribute to
the expense
This mortgage is the first from Bartlett to
the western line Of the State and the second
for Portland to Bartlett. The bill goes on to
allege that interest has been paid regularly on
the debt secured by the first mortgage, but
that the payments have been made, in part,
out of earnings which should have been de-
voted to the payment of the debt secured by
the second mortgage and no interest has been
paid on that debt since May, 1886.
q on frroau "a
earnings received for the different parts of the
road, for payment of the amount due the plain
tiff or in default for foreclosure; for re-
ceiver; and for other relief.
/ consider that cause of demurrer to be well
assigned which objects that the trustees of the
second mortgage under which the plaintiffs
claim, have not been made parties. They
may have good reasons to give why a receiver
should not be appointed to show why they
have not taken possession of the road, if they
have not: to see that all bondholders are pro-
ttected, etc.
The reasons for their being parties are many
and familiar.
1t seems that they live in Maine; but the
statute of 1875 c. 1878 provides for summoning
into the circuit court all such absent parties
when there is property within the jurisdiction
upon which lien is claimed.
1t is argued that Judge Wheeler in Brooks
v. Vermont Central Railroad Company IA
Blatchford, 1853; that the bondholder could pro-
coed without the trustees; but what he said
was Up 1867 that the bondbolders could proceed
whether the trustees would or not, by making
them defendants, In Mercantile Trust Com
pany v. Lamoille Valley Railroad Company 16
Batchford 324, the trustees were parties de-
PENDANT and the court merely decided so far
as the present case is concerned that the bill
used did not allege request to the trustees to
foreclOse, and their refusal. Again it is said
that the mortgage imposes no duties upon the
trustees and invests them with no rights, but
gives them merely the dry legal title. But
the bill alleges that the mortgage was made by
virtue of these laws of Maine and New Hamp-
shire; and the laws of Maine have a chapter
devoted to this subject which relieves the par
ties from the necessity of providing therefor in
each mortgage.
The demurrer is sustained. The plaintiffs
may amend within 60 days.