the time of such default, the complainants, together with the holders of other two thousand three hundred and forty-two of said bonds, gave notice to R. A. Lancaster and Alfred Austell, the surviving trustees under said deed of trust, of the default in the payment of interest, and requested them to proceed and execute the trusts created by said deed, and take possession of the trust property and the revenues of the company, as authorized and required by the deed of trust, to sell the property and apply the net proceeds of the entire trust property to the payment of the principal and interest on the bonds secured by said deed of trust, as therein provided. Although five months have elapsed since the said request, the trustees have taken no steps towards the execution of said trusts, or the enforcement of the bondholders' rights under the deed of trust, but have utterly failed and neglected so to do.

It is further alleged that the Atlanta & Richmond Air Line Railway Company is managed, not so much in the interest of its bondholders and stockholders, as in the interests of the Richmond & Danville Railroad Company, whose president is also the president of the Atlanta & Richmond Air Line Railway Company; that it has been made subservient to the interests of the Richmond & Danville Company, greatly to its own injury and the damage of the complainants and other bondholders. It is also alleged that the Richmond & Danville Railroad Company claims to have some interest in the property covered by the deed of trust, and to have a lien therefor on said property, and that the complainants apprehend that the Atlanta & Richmond Air Line Company and the Danville & Richmond Company are acting collusively in regard to said lien, and that it is their intention to undertake to enforce it to the great wrong and injury of complainants and other bondholders.

It is unnecessary here to notice further the allegations of the bill. The motion is for the appointment of a receiver to take possession of the entire line of the defendant company's road, running from Atlanta, Georgia, to Charlotte, North Carolina, over portions of three states.

§ 295. Where a trustee refuses to perform a trust, a court of equity will grant relief by a receiver or otherwise, irrespective of the question of ultimate loss.

The first question which presents itself for solution is, Should there be a receiver for the property of the defendant company or any part of it? The rules which govern the discretion of courts in the exercise of this power are well settled. Where there is a trust fund in danger of being wasted or misapplied, a court of equity will interfere upon the application of any of the creditors, either in his own behalf or in behalf of himself and the other creditors, and, by the appointment of a receiver, or in some other mode, grant relief. Jones v. Dougherty, 10 Ga., 274. The appointment of a receiver is not necessarily predicated upon the apprehended loss of the debt. It would be sufficient to allege that the trustee appointed refused to perform the trust. McDougal v. Dougherty, 11 Ga., 586. Where there has been negligence or improper conduct on the part of a trustee, and the fund is in danger, the appointment of a receiver upon the application of the cestui que trust is a matter of right. Jenkins v. Jenkins, 1 Paige, Ch., 243. The rule in courts of equity in regard to appointing a receiver of mortgaged property is, that it will be granted in all cases where the income is required to meet the incumbrance, and is at the present time being so applied as not to be legally applicable to reduce the incumbrance. 2 Redf. on R'ys, 361.

To apply these well settled rules to the question in hand: As already stated, the trustees have, for more than five months, neglected, although requested, and

although the deed of trust made it their duty to do so, to take possession of the property of the defendant company. The bondholders have as clear a right to have executed that power of the trust deed, which requires the trustees to take possession of the property upon default in payment of interest, as any other covenant in the deed. If the trustees refuse to perform this duty, the cestui que trust has the right to apply to the court to compel them to do it, or appoint some one who will. And this right is independent of any probable deficiency of the trust property to pay the debts secured by the deed of trust. The application for a receiver in such a case is simply a demand by the beneficiaries of the deed that the trust be executed according to its terms. It has been made to appear upon the hearing that the interest for January and July last is in default, amounting to $339,840. It is also shown that upon an execution issued on the judgment of a court of the state of Georgia for little more than $1,000, the railroad of the defendant company has been sold piece-meal in the several counties of the state of Georgia through which it runs.

§ 296. Where the trust property had fallen into the hands of two different receivers responsible to three different courts, that fact of itself was a good reason for this court to appoint a receiver for the whole property if it had jurisdiction so to do.

It is also shown that since the filing of the bill and the service of process in this case, and since the allowance of a restraining order, a suit has been instituted in the superior court of Fulton county, Georgia, in which a receiver has been appointed for so much of the property of the defendant company as lies within the state of Georgia; that suits have been instituted in the United States circuit court for North Carolina, and in the United States circuit court for South Carolina, since the service of process in this action, in which receivers have been appointed for the property of the company in these states respectively. It is true that the same person has been appointed receiver in North and South Carolina, but a different person is the receiver appointed by the state court in Georgia. Here are three distinct and independent courts claiming possession of different portions of the railroad and other property of the defendant company, and it is in the actual possession of two independent receivers living in different states and accountable to different tribunals.

The averment of the bill is, that this railroad property from Atlanta, Georgia, to Charlotte, North Carolina, is one inseparable and indivisible piece of property; that it is a portion of a great through route, and derives its chief value and business from that fact. The legislation already cited, of the three states through which it runs, shows that it was intended to be one undivided and unbroken line, and the deed of trust, which is the basis of this proceeding, covers the whole line of the road from one terminus to another. It is obvious that it would be a most unfortunate case that such a property should be held by two different receivers, accountable to three different courts. In fact, when we consider that a large part of the property of the company consists of rolling stock, which must necessarily pass from one end of the road to the other, and which must be used on the three divisions into which the road is divided by its adminis tration in three different courts, it appears to be well nigh impossible to administer the affairs of the road and render accurate and satisfactory accounts. It is evident that such a divided control must result in crippling the operations of the road, destroying its business and reducing its receipts, and placing in jeopardy the security of its creditors. This unfortunate condition of affairs, resulting from the action of three independent courts, would of itself be, as it

appears to us, sufficient ground for the appointment of a receiver for the entire property by this court, if the power and jurisdiction of this court to do so is clear.

§ 297. A single corporate body may be created by the concurrent legislation of two different states.

First, then, Has this court the power to appoint a receiver for real property outside the limits of the state? Involved in this question is another, to wit: Is the Atlanta & Richmond Air Line Railway Company one corporation in Georgia, and another and distinct corporation of the same name in South Carolina, or is it the same corporate body in both states? It seems to me quite clear that the purpose of the legislation of Georgia and South Carolina, in reference to this corporation, already set out in this opinion, was to create a single corporate body. Pursuant to the provisions of the acts of these two states, the two original companies did consolidate and combine, they took a new name, and organized a new and single board of directors. Having done this, the new consolidated company, under its new name, and acting by its one president, has executed a single deed of trust, covering the entire line of railway from Atlanta to Charlotte, and including all the personal property which formerly belonged to the two companies that united to form the new one. It is clear that the legislation of the two states was passed to authorize the making of one corporate body out of two, and that the two corporate bodies so authorized have united, and have, ever since the 20th of June, 1870, the date of the consolidation, been acting as one company.

The only remaining question in this branch of the inquiry is, Could the legislatures of two different states unite to create one corporate body? This question is distinctly answered by the supreme court of the United States in the case of The Railroad Co. v. Harris, 12 Wall., 82. The court says: "We see no reason why several states cannot, by competent legislation, unite in creating the same corporation, or in combining several pre-existing corporations into a single one.

"The Philadelphia, Wilmington & Baltimore Railroad Company is one of the latter description. In the case of that company against Maryland, Chief Justice Taney, in delivering the opinion of this court, said: "The plaintiff in error is a corporation composed of several railroad companies which had been previously chartered by the states of Maryland, Delaware and Pennsylvania, and which, by corresponding laws of the respective states, were united together, and form one corporation under the name and style of The Philadelphia, Wilmington & Baltimore Railroad Company. The road of this corporation extends from Philadelphia to Baltimore."" We reach the conclusion, then, that the Atlanta & Richmond Air Line Railway Company is one and the same corporate body in Georgia and South Carolina, and the legislation of North Carolina herein before referred to shows that it has the same rights and functions in that state that it has in South Carolina.

§ 298. The circuit court for the district in which a business corporation has its residence and chief place of business may appoint a receiver and take charge of its property as well without as within the district.

The bill avers, and the proof shows, that this corporate body, existing in two states and owning property in three, has its residence and principal office at Atlanta, Georgia. The inquiry then recurs, Can this court, having obtained jurisdiction over the person of this corporate body, exercise jurisdiction over its real and personal property outside the limits of the state, by the appoint

ment of a receiver to take possession of the entire property, both within and without the state?

There is a precedent for the exercise of such jurisdiction. In Ellis v. The Boston, Hartford & Erie Railroad Co., 107 Mass., 1, the count appointed a receiver for the entire line of the defendant company's road, which extended from Boston, in Massachusetts, to Fishkill, in New York. It is well settled that realty out of the state may be reached by acting on the person. Mitchell v. Bunch, 2 Paige, Ch., 606; Ramsey v. Brailsford, 2 Dess., 587, note. In the case in Paige, it was held that if the person of the defendant is within its jurisdiction, the court has jurisdiction as to his property situated without such jurisdiction.

When the property is situated outside the territorial jurisdiction of the court the court may require assignments to be made by the defendant to the receiver. Chipman v. Sabbaton, 7 Paige, Ch., 47; Cagger v. Howard, 1 Barb. Ch., 369; Story on Conflict of Laws, § 463; Northern Indiana Railroad Co. v. Michigan Central Railroad Co., 15 How., 243. As the property of the defendant company is one entire and indivisible thing, and as it is all covered by one deed of trust, there seems to be no good reason why this court should not appoint a receiver for the whole, even though a part of the property may extend into another state. The court having jurisdiction of the defendant can compel it to do all in its power to put the receiver in possession of the entire property. If other persons outside the territorial jurisdiction of this court have seized the property of defendant, the receiver may be compelled to ask the assistance of the courts of that jurisdiction to aid him in obtaining possession, but that is no reason why we should hesitate to appoint a receiver for the whole property. We think the courts of other jurisdictions would feel constrained, as a matter of comity, to afford all necessary aid in their power to put the receiver of this court in possession.

§ 299. When a court has obtained constructive possession of the trust property, and other courts afterwards obtain actual possession, the first court has jurisdio

tion.

Finally, it is objected that the superior court of Fulton county, Georgia, and the United States circuit courts of South Carolina and North Carolina, respectively, have taken jurisdiction of the property of the company within their respective states, and their receivers are in possession, and this court ought not to interfere by the appointment of a receiver of its own.

The record shows that the bill in this case asking this court to undertake the administration of this trust property, and to take possession of it by its receiver, was filed on the 30th of October, 1874. It is shown that service was made upon the defendant corporation on the 31st of the same month, and notice of the motion now on hearing was served on the same day. It further appears that on the 5th of November, upon the application of the complainants, and upon the showing that there appeared to be danger of irreparable injury from delay, a judge of this court directed that, upon the execution of a bond by complainants, with sufficient sureties, in the sum of $5,000, conditioned according to law, a restraining order issue enjoining and restraining the Atlanta & Richmond Air Line Railway Company, its officers and agents, from handing over or delivering possession of said railway or its appurtenances, or any of its other property, to any person except a receiver appointed by this court in this suit.

The bond was given by the complainants as required by the court, and the

restraining order was issued, and on the 9th of November served on the Atlanta & Richmond Air Line Railway Company. The case in Fulton superior court was not filed until November 10th, and no prayer was made for a receiver until Garner, a defendant in that case, applied for one in his answer, which was filed on November 20th. The suits in the United States circuit courts of South and North Carolina were not commenced until the 16th of November.

Upon this state of facts, which court first acquired jurisdiction of this trust property? Is actual seizure of the property necessary to the jurisdiction of the court? In my judgment it is not. In this case I think the jurisdiction of the United States circuit court for the northern district of Georgia first attached to the property, because the suit in that court was first commenced and service of subpoena made, and because, 1. One of the main objects of the suit was to obtain possession of the property, and such possession was necessary to the full relief prayed by the bill; and 2. Because, by the service of the restraining order enjoining the defendant company from delivering possession of the trust property to any person except a receiver appointed by this court in this cause, the court acquired constructive possession, and from the moment of the service of the restraining order the property was in gremio legis. I think these positions are sustained by the authorities.

I subjoin a reference to a number of cases, in all of which the subject under consideration is discussed, and in some of which the precise point is decided and the views above expressed are sustained. Smith v. McIver, 9 Wheat., 532; Wallace v. McConnell, 13 Pet., 151; Peck v. Jenness, 7 How., 624; Williams v. Benedict, 8 How., 107; Wiswall v. Sampson, 14 id., 52; Taylor v. Carryl, 20 id., 583; Green v. Creighton, 23 id., 90; Freeman v. Howe, 24 id., 457 (§§ 255–260, supra); Chittenden v. Brewster, 2 Wall., 191; Memphis v. Dean, 8 id., 64; Taylor v. Taintor, 16 id., 370; New Orleans v. Steamship Co., 20 id., 392, 393; Atlas Bank v. Nabant Bank, 23 Pick., 489; Wadleigh v. Veazie, 3 Sumn., 165; Ex parte Robinson, 6 McL., 355; Bell v. Ohio Life & Trust Co., 1 Biss., 260; Bill v. The New Albany Railroad Co., 2 id., 390; Parsons v. Lyman, 5 Blatch., 170 (§§ 322-328, infra); Stearns v. Stearns, 16 Mass., 171; Conover v. The Mayor, 25 Barb., 513; Clepper v. The State, 4 Tex., 242; Thompson v. Hill., 3 Yerg., 167; Bank v. Rutland Railroad Co., 28 Vt., 478; Merrill v. Lake, 16 Ohio, 405; Ec parte Bushnell, 8 Ohio St., 601; State v. Yarbrough, 1 Hawks, 78; Gould v. Hays, 19 Ala., 448; High on Rec., 38, 39, 40, 41, and note. Especial attention is called to the cases of Wiswall v. Sampson, 14 How.; Chittenden v. Brewster, 2 Wall., and Bill v. The New Albany Railroad Co., 2 Biss., supra.

An examination of the cases cited will show that actual seizure of property has not been considered necessary to the jurisdiction of the court in a case where the possession of the property is necessary to the relief sought. The commencement of the action and service of process, or, according to some of the cases, the simple commencement of the suit by the filing of the bill, is sufficient to give the court jurisdiction, to the exclusion of all other courts.

In this case, not only was the suit begun and process served before the commencement of any other suit, but the defendant railway company was actually enjoined by the order of this court from yielding possession of the trust property to any one except a receiver appointed by this court in this case. In my judgment, this restraining order gave this court constructive possession of the trust property, and a subsequent seizure of the same by any person on the