ject to the homestead rights of the heirs, whatever those rights may be; and we do not undertake to define or limit them. That can be properly dOlle only in a proceeding to which they are parties.
Decree accordingly. FOSTER, D. J., concurs.
MERCANTILE TRUST Co.
PORTLAND & OGDENSBURG R. C-o,
(Oircuit Oourt, D. New Hampshire.
In a suit by the bondholders of a railroad company holding bonds secured by a first mortgage on a part of the road and a second mortgage on the rest of the road, and praying that an acconnt be taken of the earnings received from the different parts of the road, and for payment of the amount due to the plaintiff, or, in default, for a foreclosure of the mortgage; and asking that a receiver be appointed, and for other relief,-the trustees of the second mortgage, under which the plaintiff claims, are necessary parties. 2.
NON-RESIDENT PAR'rIEs-ApPEARANCE, HOW SECURED.
If they are residents of another state, the statute of 1875, c. 137, § 8, provides for summoning all such absent parties, where there is property within the jurisdiction upon which a lien is claimed. 3.
MORTGAGE-PROVISIONS OF STATUTE PART OF THE CONTRACT.
Whcre a state statute provides for the rights and duties of trustees of a corporation, it relieves the parties from prOViding therefor in each mortgage executed under the laws of such state.
J. W. Fellows, E. J. Phelps, and Noble c/; Smith, for complainant. Mr. Haskell, for defendant Anderson. LOWELL, C. J. This case has been argued upon demurrer to the bill. The facts alleged are that the Portland & Ogdensburg Railroad Company exists by the authority of the states of Maine and New Hampshire; that in 1870 it mortgaged that part of its line which extends from Portland, in Maine, to Bartlett, in New Hampshire, to secnre bonds for $800;000; that in 18'71 it mortgaged the whole line, from Portland to the western line of New Hampshire, together with its rolling stock owned or which might thereafter be acquired, to G. T. Emery and two others, as trustees, to secure bonds for $3,000,000, and issued the bonds to the amount of $1,900,000, of which the plaintiff holds $80,000, and sues for itself and others in like interest who may choose to come in and contribute to the expenses. This mortgage is the first, from Bartlett to the west-
IlEROANTILE TRUST 00. V. PORTLAND Ir OGDENSBURG B. 00.
ern line of the state, and the second, from Portland to Bartlett. The bill goes on to allege that interest has been paid regularly on the debt secured by the first mortgage, but that the payments have' been made, in part, out of earnings which should have been devoted to the payment of the debt secured by the second mortgage, and no interest has been paid on that debt since May, 1876. It prays that an account may be taken of the earnings received for the different parts of the road; for payment of the amount due the plaintiff, or, in default, for a foreclosure; for a receiver, and for other relief. I consider that cause of demurrer to be well assigned which objects that the trustees of the second mortgage under which the plaintiff claims have not been made parties. They may have good reasons to give why a receiver should not be appointed; to show why they have not taken possession of the road, if they have not; to see that all bondholders are protected, etc... The reasons for their being parties are many and familiar. It seems that they live in Maine; but the statute of 1875, c. 137, § 8, provides for summoning into the circuit court all such absent parties where there is property with· in the jurisdiction upon which a lien is claimed. It is argued that Judge Wheeler decided, in Brooks v. Vermont C. R. Co. 14 BIatchf. 463, that the bondholder could proceed without the trustees; but what he said was (page 466) that the bondholders could proceed, whether the trustees would or not, by making them defendants. In Mercantile Trust Co. v. Lamoille Valley R. Go. 16 Blatchf. 324, the trustees were parties defendant, and the court merely decided, so far as the present case is concerned, that the bill need not allege a request to the trustees to foreclose, and their refusal. imposes no duties upon the Again, it is said that the trustees, and invests them with no rights, but gives them merely the dry, legal title. But the bill alleges that the mortgage was made by virtue of the laws of Maine and New Hampshire, and the laws of Maine have a chapter devoted to this subject, which relieves the parties from the necessity of providing therefor in each mortgage. The demurrer is sustained. The plaintiffs may amend within 60 days.
NOTE. The court may, in an order for appearance of a non-resident defendant, fix any day certain for his appearance, and is not limited to the usual rule-days in equity. Forsyth v. Pierson, 9 FED. REP. 801. Such order may be made upon a proper showing by affidavit alone. and a marshal's retnrn .. not found" in the district is not a condition precedent to the waking of it.
Id. Service of such order by the marshal or his deputy of the district whereof the non-resident defendant is an inhabitant, or where he is found, and the return thereof in the usual form or by affidavit, are sufficient. Id. See, as to service on non-resident corporation, Parl'ott v. Alabama tlold Life Ins. Co. 5 l!"'ED. REP. 391; Pennoyer v. Neff, 95 U. S. 714.-LED.
COircuit Court, 8. D. New York.
PRACTICE-SERVICE OF SUBPlENA-'-PRIVILEGED ATTENDANCE.
Where a motion to set aside the service of a subpama, on the ground of privileged attendance within the district, had been denied on the ground that the defendant had failed to show that he was a non-resident of the state, held, on a renewal of such motion without leave, that the fact of non-residence should have been proven on the former motion. It is not a newly-discovered fact.
SAME-SAME-WAIVER OF PRIVILEGE.
An objection to the service of a subpama as made while defendant was protected by a privilege, maybe waived by not being promptly availed of.
In Equity. Motion to set aside service of subpcena.
A. v. Briesen, for plaintiff. E. G. Webb, for defendant. BLA.TOHFORD, C. J. The defendant Alvin D. Puffer heretofore made a motion to this court, founded on affidavits, to set aside the service made on him of the subpcena to appear and answer herein. The suit is one for the infringement of letters patent. The motion was opposed and denied by an order made Deoember 30, 1881. The reasons set out in the motion papers, as grounds for the motion, were that the service was made upon the said defendant while he was attending the examination of witnesses in the office of the counsel for the plaintiff herein, in the city of New York, in a cause of interference then pending between him and the plaintiff before the United States patent-office, and when he was lawfully attending at said office "in his right as a party to said interference cause." The moving affidavits did not show where the defendant resided, or where he carried on business; but merely that he "went to New York" to attend suoh examination, not stating from what plaoe he went. The motion was made upon the bill as a part of the moving papers. The bill speaks
.Reported by S. Nelson White, Esq., of the New York Lar.