New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1885-07-31

acting for al the bondhodsr. would better subssrvs
bondhodr Does the language Of the eighth CLAUSE -
sas Or e bring suit than tho same snsnssUss
does In the nth clause as applied to the power 70 d.
trustee cennot Under the ffth clause declare the prnc
pal due without request from the bondhoder lit Il
tr"ses What %ssni.s hs: Ss
@ay be- sas :s - Of the or
Of the trustee referred TO- not that Of declaring the
principal due What act OF tho bondholders not that
And these acts not treated distinct and
AND ies %us o an
LANGUAGE used In the eighth condition applied to the
the language IN the fifth condition as apnlied 20
the power TO declare the principal due. ''N "
VIVA. tofe - 70 PS given 70 the words
not expression to he coupled with n yolunarv .c,
BY the sixth aud seventh conditions the powers therein
conferred are to be exercised at the discretion Of the
trustee Was 1t anticipated that he would want ndem-
ny Mn to ae ms % deede hs 0 should dean y
10 act ard case WAS made where, by tina
terms OF tho mortgaye he would be bound 10 act, s
sense have the words any meaning. But understand
counsel to eSnesde that so far e the power 70
create the where it would be imperative ON tina
trustee ,s to sst II this : so was equally INTENDED
f0reclose, and such being its meaning aud purpose
there Is no room to hold that intended to limit
which by implication the trustee derives from thu
nature and character Of his trust.
Adopting the construction that the eighth condition
intended to provide for the case whore would be
obligatory upon the trustee to act In the pro-
vided, we have harmonious and perfect scheme to
protect the Interests Of the bondholders First large
discretion is lodged with the trustee second. II he
the bonds may compel him to act upon rendering
proper indemnity third, with the holders of the ma
jorty of the bonds lodged the power TO regulate,
TO annul restrain the acts OF the trustee, done
either in tho exercise OF his own judgment
upon the requson Of the holders OF one-thrd the
bouds Any other construction than this throws the
different parts OF the mortgage into conflict with one
another and leads to confusion and uncertainty. More.
over, tls view In harmony with the practical con-
strucOn givenl to the contract by the parties them
AT the time application made this court
for the aPpont of receivers the railway company
appeared bys counsel and consented TO theorder maxi
ing such appointment, and the trustee at that
time concededy had right either to demand posses.
sion Of the property or to exercise the power OF sale
declare the principal due, there by the conDa.
nys consent such appointment direct recognition VI
the trustees right to Institute Judicial proceedings to
enforce the collection OF the unpaid interest and cam
be unmndiu OF the fact that at least on one
sion If not upon others, the demurring defendant ap
peared aud requested that permission be given
10 the receiver crrtcates act upon his part
entirely inconsistent with the opinion that the suit in
which such has been appointed commenced
without proper sufficient authority.
"Could 1t have been intended that these widely scat
tered bondnoldcls with opportunity for united
tion should be deprived of their right to for the
due their respective bonds until they could
procure holders of Sl7 600 OF bouds to unite in re-
quest to the trustee Such would be the effect Of
the Of the eighth clause, and
the railway company could control the action of two
thirds OF bonds might with impunity refuse pay
the remaining third, anu the holders thereof
would absolutely powerless To enforce the payment
of either principal interest due them And this
would follow face OF the fact that the mortgage by
express terms, Ia given security for the pr0mps
pay OF the interest, and by Of the conditions
the railway company TO remain In
Is 10 exist only long interest is paid. That such
agreement would be perfectly legal Is true, and
the pa made 1t IL must be enforced but
strueton OF the mortgage that would lead 10 such results
should be adopted unless the language empoyedh
so plain to admit Of no other meaning. I
think II was clearly the intention or the parties 10
commit interests Of the bonIholders to the udgpes
ana Df the trustee. His action II delayed
ected could be compelled by the holders OF onethn
OF tho bonds, and with the majority was placed The
power to ultimately control all action IN reerenee
the security such scheme IA harmonious, affords pro
lection to all and does Injury TO none.
Nv conclusion is that the request OF the bondh0lden
was not a prerequisite to the commencement OF thD
action and the demurrer must be oyerrued with costa
with leave to the deendan to In twenty daya