Page:Federal Reporter, 1st Series, Volume 1.djvu/563

STEKN V. WISCONSIN CENT. B. 00. 555 �there is but one course for me to pursue, and that is to remand the cases on both petitions to the state court, and it is so ordered. ���Stern V. WiscoNsiN Cent. E. Co. and otliers. �{United States Circuit Court, E. D. Wisconsin. January, 1880.) �EqDITY PlBADING and PKACTICE — RaILROAD MoRTOAGE — FoKBCIjOSUEB �BY Bond Holder. — Trustees in a rail roadmortgage sued for strict fore- closure and general relief. Afterwards tliej' fileda supplemental bill pray- ing that a plan of re-organization, adopted by a large majority of bond holders, tnight be decreed, and a certain litigating bondliolder restrained f rom interference. The litigating bond holder filed his independent bill for a foreclosure sale of the property and removal of the trustees. Hdd, that the litigating bond holder could only be heard for his individual rights by coming into the trustees' pending suit, and that his independ- ent suit must be staid. �The opinion in this cause (8 Eeporter, 488) was delivered before the defendants had pleadecl, and while the case was before the court solely on a master's report, upon excep- tions taken by defendants to the bill for scandai and im- pertinence. No issue had been at that time made on the record which involved the merits ; but the court, nevertheless, upon simple inspection of the bill, deelared at once that the action could not be maintained; and this intimation, given in advance of issue joined, was supposed by the court to sub- stantially dispose of the case. The plaintiff, however, filed an amended bill, to which the defendant compariy demurred, and the defendant trustees filed a plea setting up the pendency of their own suit, and denying ail the frauds which were alleged in the bill and have been already excepted to as scandalous and impertinent. The answer filed by the trustees in support of this plea denied, under oath and in detail, every fact and circumstance which charged improper action on the part of the present trustees, Stewart and Abbot, or of their predecessor, (the late Chief Justice Bigelow, of Massachusetts,) or of the defendant company. The case then came on to be heard upon the demurrer and plea. ��� �