Page:Federal Reporter, 1st Series, Volume 1.djvu/371

STEWART W., OHESAPBAKB & OHIO CANAL CO. 863 �tolls and revenues of the defendant, according to its provis- ions, and that they have refused so to do. It alleges, Hke- wise, misconduct on the part of the defendant, and misappro- priation of its tolls and revenues; with which charges, at present, whether true or false, we have nothing to do. �The answer of the defendant, together with other defences with which we are not now concerned, sets up that there îs a suit now pending between the commonwealth of Virginia and the defendant and others, in the circuit court of Balti- more city, embracing the same subject-matter between the same parties, and files as an exhibit the record of that case. �The mortgagee, Corcoran, by reason of bis residence in the District of Columbia, is not made a party to this suit. His four eo-trustees under the mortgage have been served with process, and have answered the bill. Under the fifty-second rule in equity, prescribed by the supreme court, the parties to this cause — ^the facts being as above stated — have, by stip- ulation of counsel, submitted three questions to the court, which are jurisdictional in their cbaracter, the first being : Is the state of Maryland an indispensable party to this suit ? the second — Is not William W. Corcoran, one of the trustees, an indispensable party ? and the third — Ought not the court to dismiss the bill altogether, and refer the parties to the state court, where a suit is alleged to be pending in which the complainant is a defendant, and where, as is claimed, he could have ail his rights in this matter properly adjudi- cated ? �We will consider these questions in the reverse order to that in which they have been presented. �Upon an examination of the record of the case in the state court we find that there was a bill filed in 1867 to determine merely the priorities of the varions lien creditors who held the obligations of the defendant company. That bill certainly asked for a receiver of the rents, tolls and revenues of the defendant, but it clearly appears that what was intended by that action was to place in the hands of the receiver such surplus tolls and revenues only after they had been coUected by the company, to be by him distributed to the parties after ��� �