The Montgomery advertiser., 1906-05-20

toned and constitutes a separate and registered mortgage on that number or shares for each bond and that a hoIder or certain number of such ponds may forecloSe on the specific number of shares securing his bonds and the holders of other bonds and of liens on the property of the railroad et company are not necessary parties to the foreclosure suit.
 The decree of the court entered, after finding the amount due on the bonds and coupons in suit to be $24,700 (no interest being recoverable) and that the shares of the stock of the North Caro- lima Railroad Company, belonging to the State of North Carolina, ordered that North Carolina pay the amount kota on or before the 1st Monday of January 1905. and that in default of such payment the marshal of the court was directed to sell at public auction all the interest of North Carolina in the one hundred shares of stock of the North Carolina Railroad Company, the sale to be made after public notice at the east front door of the capitol build ing in Washington City. : The suit. 1t will be seen, was an original bill in equity to foreclose a second statutory lien on the stock of North Carolina in the North Carolina Railroad Company. The court assum- ed Jurisdiction under the Constitution of the suit, as one between States, largely upon the ground that the pro- ceedlhs was one in rem, so to speak. viz. to foreclose a lien on stock. The court did not render a judgment in personam against the State for the sum due on the bonds In suit Equity, 1t said, was satisfied by a decree of a foreclosure and sale of the mortgaged property, leaving the question of a judgment over for any deficiency, to be determined when, if ever, it arises. It undertook only to take hold of the se- curity which the State had pledged
 It is impossible for this case to be taken as a decided precedent in a suit on unsecured State bonds, wherever the only judgment that could be rendered would be one in personam. Such a judgment could only be enforced by eign State-an outrage which 1t is ex- pected the court will never sanction.
 The idea, that where a State has pledged specific security to a debt such security itself can be reached by tn the e long arm of equitable process has been sanctioned in this case, but 1t is be- 1ieved the court will go no further
 All the bonds secured by the stock as the bonds in this case never have been paid by the State of North Car ollna
 Mr. Justice Brewer delivered the opinion of the court.
 cured MT. Chief Justice Fuller. MT Justice McKenna and MT. Justice Day dlSS antlng.
 It will be seen that the decission was reached by a majority of the court Mir. Justice Harlan. MT. Justice Brown, Mir Justice Peckham and Mir. Justice Holmes concurring with MT. Justice Brewer. who delivered the opinion.
 The initial question was respecting the title of South Dakota to the bonds in suit. The court in it's opinion, dis cussing the question quite fully, citing authorities to sustain its decision, which seem to fully justify the de- cision reached, that the controversy was one between two states" It must be admitted, however, that Mir. Justice White argues with great force that the ease comes within the prohibition of eleventh amendment to the constitu tion, that the judicial power of the United States shall not extend to any suit in law or equity, commenced or prosecuted by citizens of another
 It is not my purpose however. to enter into a discussion of the correct ness of thy decision of the court merely desire to show that it does not cover a suit 1t law by one State against another State upon an outstanding bond past due and unpaid, issued by the latter State
 Michael L. Wood.
 P S.-I am indebted to Colonel Thom- as P. Kenan. the accomplished gentle man and efficient official, for the man ner of the final adjustment of this con troversy, who for more than thirty years has been associated with the Supreme Court of North Carolina first