Page:Federal Reporter, 1st Series, Volume 1.djvu/373

STBWABT V. OHSSAPKAKE * OHIO CANAL 00. 365 �ere, then the court is at liberty to proceed. But Corcoran bas no interest. He is a mere trustee for the purpose of doing a dufjr upon a certain contingency. He holds a public trust. He bas no title to anytbing. He bas no legal estàte in any property. His daim for compensation, even in the event of his being called upon to exercise the trust reposed in bim, is a matter not fixed by law, but is altogetber witbin the discre- tion of a court of equity. The cestui que trusta are abundantly represented in tbis action by a majority of tbeir trustees. If but one of tbem were in court we sbould consider that tbeir interests were sufficiently protected against any possible barm from an adverse decree. �Tbe next question submitted is wbetber the state of Mary- land ougbt not to be made a party. The defendant alleges that the state is an indispensable party. We bave seen, by the recital of the act of the assembly of Maryland, (Statutes 1844, c. 281,) that the state bad a mortgage on all the prop- erty of the defendant company, togetber witb its toUs and revenues, By that act the state autborized'tbe defendant to borrow more money upon the pledge of its tolls and revenues, and declared that tbo defendant migbt pledge the same, and make the debt so incurred a preferred and absolute lien on such tolls and revenues until the same was pàid. �This is a suit against the defendant company to enforce the pledge which the state authorized it tô make, and whicb it did make, witb the complainanl. It must appear to ev'ery'one who considers the circumstances under which the waiver of the state lien was made, and these bonds issued, that ho ohe would bave taken tbem if it bad been understood that in order to enforce the lien there was a necessity to do what it was impossible to do, namely, make the state a party to the proceedings. Maryland waived its lien. She agreed with the defendant company, not witb the bondholders, that it might make such bargain as it could with the bondholders, and that neither she nor her lien sbould stand in the way of enforcement of the contract against the canal company. Under tbis authority and agreement — which was by public statute — the defendant contracted with the bondholders. It ��� �