83 FEDERAL REPORTER.
has not been violated. Interstate Commerce Commission v. Atchison, T. & S. F. R. Co., 50 Fed. 295. And this seems a reasonable construction of the law. The case, therefore, it appears to me, came into the circuit court without any finding of fact upon which an order against the carriers could be predicated. The circuit judge examined the testimony, and considered the evidence tending to prove that the through rate had been forced down by the natural advantages of Charleston as a trade center, having numerous routes by rail, by rail and water, and by water over which merchandise of the kind in question was brought to that city, and to compete with which the defendant carriers were obliged to reduce their railroad rates on through freight to Oharleston. Summerville had no simi· lar natural or artificial advantages, and its only carrier, the South Carolina & Georgia Railroad, was not subject to having its local rates forced down by competition below what was reasonable and just. Upon consideration of all the proven facts, the circuit judge found that the circumstances and conditions were not substantially similar, and that the defendant carriers had not violated the act. 'Vith this conclusion I agree. There is abundant proof to support it, and also to show the destructive loss which would result to the South Carolina & Georgia Railroad (the successor of the South Carolina Railroad) if it was required to conform its local rates to its share of the through rates.
PEORIA, D. & E. RY. CO. v. CENTRAL TRUsrr CO. OF NEW YORK et al. CENTRAL TRUST CO. OF NEW YORK et al. v. PEOmA. D. & E. RY. CO. et al.
(Circuit Court, S. D. Illinois.
December 15, 1897.)
RAILROADS-RIGHTS OF SECOND MORTGAGEES.
Where the operation of a railroad by a receiver has demonstrated the capacity of the property to earn more than its operating expenses and the interest on its first mortgage, and the receiver has in his hands sufficient money to pay the delinquent interest on such mortgage, the holders of a second mortgage are entitled to have it so applied, although a suit to foreclose for the default has been instituted; there being no right, under the bill filed, to foreclose for anything except the interest due.
Bill by the Peoria, Decatur & Evansville Railway Company against the Oentral Trust Company of New York and William A. Heilman, trustees, and cross bill by defendants against the complainant. Heard on motion for an order directing the receiver to pay interest. Samuel P. Wheeler and Alexander Gilchrist, for William A. Heilman. Green & Humphrey, for reorganization committee.
ALLEN, District Judge. The Peoria, Decatur & Evansville Railway Company filed a bill in this court, and E. O. Hopkins and E. P. Houston were appointed receivers of the railway. Later on, Receiver Houston res,igned, and Hopkins continued as sole receiver. Subsequently the Central Trust Company of New York and William
PEORIA, D. & E. RY. CO. V. CENTRA.L TRUST CO.
may become a lien upon the property superior to the first mortgage. I am unable to see the force of this objection. The holders of the first mortgage bonds, if the order asked for is made, will receive this money. If not made, the same money will be applied to the other purpose, of paying a debt that may become a lien superior to the first mortgage. Suppose this should be the result; their condition will be no worse than it now is. There are considerations of duty to the second lienholders that forbid any speculation of this sort. The property is earning a surPlus over its operating expenses and this interest I feel justified in dealing with this question in the light of past and present experience, lind feel justified in assuming that no loss can be sustained by the first mortgage bondholders if the order petitioned for is made. It is the policy of courts of equity to stimulate the best possible returns from property being administered or sold under decree, to the end that all creditors and lienholders may, if possible, be paid. There is another reason why the first mortgage bondholders of the Peoria Division cannot be prejudiced by paying them this interest: Under the bill filed, no decree can be entered, except for the intereStt: due. The principal of the debt cannot be declared due for default in payment of interest. The views I have expressed are largely sustained in Railroad Co. v. Fosdick, 106 U. S. 47, 1 Sup. Ct. 10; Lloyd v. Railroad Co., 65 Fed. 351; American Loan & Trust Co. v. Union Depot Co., 80 Fed. 36. An order may be entered directing the receiver to pay the interest which fell due July 1st last on bonds of Peoria Division.
HOPKINS et al. v. OXLEY STAVE CO. (Circuit Court of Appeals, Eighth Circuit. No. 789.
November 8, 1897.)
A federal court is not deprived of jurisdiction of a suit for an Injunction against numerous individual defendants by the fact that some of those joined as defendants were citizens of the same state as the compiainant, when, as to them, the bill was dismissed shortly after it was filed, and before an injunction was awarded. The rule Is 'as well settled in equity as it is at law that where a right of action arises ex delicto the tort may be treated as joint or several, at the election of the injured party. Where a consp1ra.cy by the members of certain labor organizations had been formed to injure the business of a corporation, it was accordingly held that the corporation might treat the tort as joint or several, and maintain a suit against all or against any number of the conspirators, to enjoin them from carrying the same Into effect.
INJUNCTWN-CONSPIRACY TO COMMIT TORT-PARTIES.
The members of two labor organizations entered Into a combination to compel a manufacturer of casks and barrels to discontinue the use of a machine for hooping the same. This object was to be accomplished by notifying the plaintiff's customers and other persons not to purchase machine-hooped barrels, and by inducing the members of all labor organizations throughout the country, and persons who were in sympathy with them,not to purchase provisions or other commodities which were