lessee shall fail at any time to pay the rent provided for in said indenture of lease, or shall fail at any time to keep and perform any of the agreements or covenants contained in said lease, and any such default in the payment of rent or in the performance of the covenants of said lease shall continue for the period of twelve months after written demand and notice from your petitioner to said lessee, then, at the option of your petitioner, the estate by said indenture of lease demised shall cease and determine, and your petitioner shall thereupon become and be entitled to re-enter into and upon the demised railroads and properties. Your petitioner files with this petition as Schedule A hereto, a copy of said indenture of lease, and for a precise statement of the terms and conditions of said indenture of lease prays leave to refer thereto.

FOURTH.-The various lines of railway embraced in said lease, as well the lines owned by your petitioner as the lines leased to your petitioner are subject to funded indebtedness secured by mortgage which is now outstanding and which so far as not outstanding at the date of the execu tion and delivery of said lease has since been created with the consent of said lessee, and your petitioner is informed and believes that failure to meet the interest on such underlying funded indebtedness as such interest matures will operate also a default under the mortgage securing the indebtedness the interest on which shall so become in default, and will render said mortgage enforceable. Said mortgage indebtedness is as follows: [Then followed a description of same.]

FIFTH. By said refunding mortgage of your petitioner which is expressed to be subject to said indenture of lease, made by your petitioner to said defendant, your petitioner covenanted from time to time punctually to observe and perform all of the obligations and pay and discharge all amounts payable under or by virtue of any lease thereby mortgaged so that the interest of your petitioner in any such leasehold estate might be at all times preserved unimpaired as security for the bonds issued under said refunding mortgage; and said refunding mortgage secured or in the payment of the principal of any such bond or in case default shall be made in the due observance or performance of any of the covenants or conditions in said refunding mortgage required to be kept or performed by your petitioner, and any such last mentioned default shall continue for a period of sixty days after written notice thereof to your petitioner from the trustee under said refunding mortgage or from the holders of five per cent. or more in amount of the outstanding bonds by said refunding mortgage secured, then the trustee thereunder may forthwith proceed to protect and enforce its rights and the rights of bondholders under said refunding mortgage by a suit or suits in equity or at law for the specific performance of any covenant or agreements contained in said refunding mortgage or in aid of any power therein granted or for the foreclosure of said refunding mortgage for any default or for the collection of interest or principal or both or for the enforcement of any other appropriate legal or equitable remedy as the trustee shall deem most effectual in support of any of its rights and duties under said mortgage. Your petitioner files a copy of said refunding mortgage as Schedule B hereto.

SIXTH. It is alleged among other things in the bill of complaint in this cause and admitted by the answer of the defendant thereto and your petitioner so charges, that the defendant said New York City Railway Company, since entering into possession of the premises demised by said lease made to it by your petitioner, has operated all the lines owned and leased by said defendant as a single system constituting routes over different lines or parts of lines, connecting separated lines over parts of intermediate leased or controlled lines, interchanging equipment among the various lines and furnishing equipment as might be required to meet from time to time the varying requirements of particular lines, supplying power and using power houses, car barns and stations as deemed best for the effective and economical operation of the system as a whole and also establishing a system of transfers between various lines and routes; that the equipment owned by said defendant has been used over the system as varying requirements of operation made necessary without assignment to any particular line or lines and that many of the lines leased by your petitioner to said defendant are without adequate equipment of their own; and that in many cases the motive power employed on leased or controlled lines has been changed to electricity without supplying said lines with independent power houses or other independent sources of supply of power, leaving such lines dependent for power on other lines of the system. Your petitioner further shows that it is alleged in said bill of complaint in this cause and is admitted by the answer of the defendant that the defendant is insolvent; that the fixed charges of your petitioner's system hereinabove set forth are accruing and installments thereof will become due on October 1, 1907, and each month thereafter; that failure to meet such fixed charges as they become due will operate a default under the mortgage securing the indebtedness the interest on which shall so become in default and render such mortgage enforceable; that the rentals under the leases made to your petitioner are accruing and that instalments of rental under some or all thereof will shortly become payable; that under said lease made to said defendant by your petitioner, no right of re-entry by reason of a default in the payment of the rent by said lease reserved or in the performance of any of the agreements or covenants therein contained will accrue thereunder to your petitioner until the expiration of a year after default and written demand and notice from your petitioner, and that in the meantime your petitioner's said system may be hopelessly disrupted and your petitioner suffer irremediable loss.

SEVENTH.-Your petitioner alleges that its railroad system embraced in said lease is very extensive; that it is of vital importance to your petitioner and to the creditors of your petitioner that said railroad system should be continued to be operated as a whole, and that said system should be preserved; that by said lease to the defendant the defendant is bound to finance the requirements of your petitioner for capital expenditures; that your petitioner has already issued to the defendant its obligations in large amounts on account of advances by the defendant for that purpose, and your petitioner is informed and believes that the defendant

has disposed of said obligations, and that said obligations are now outstanding in the hands of other holders; that claims for personal injuries to a large amount in connection with the operation by your petitioner of its system prior to said lease are now outstanding and are the subject of actions now pending; that by said lease to the defendant the defendant agreed to pay any judgments recovered in respect of said claims; that by said lease made by your petitioner to said defendant your petitioner parted with the possession of its entire railroad system; that your petitioner has no other resources wherewith to meet the fixed charges on the mortgage indebtedness of its said system so leased or to meet the accruing rentals of said lines so leased to your petitioner or its predecessors, and by your petitioner so leased to said defendant or to meet judgments for said claims for personal injuries, or to meet its said outstanding obligations for capital expenditures as they mature, or to meet other indebtedness or liabilities of your petitioner than the rentals reserved under said lease made by your petitioner to the defendant, as part of which said defendant agreed to pay such fixed charges and such rentals and to perform the other covenants therein contained; that said system is in the possession of this court through its said reecivers appointed in this cause for administration in accordance with equitable principles; that no substantial remedial action can be taken in this case at the instance of said defendant or at the instance of defendant's creditors which will not affect the rights of your petitioner; and that the rights of your petitioner are inextricably interwoven with the rights which the Court has undertaken to administer in this cause.

Your petitioner therefore prays,

I. That your petitioner may become party defendant to said suit for the protection of its interests and those of its creditors.

II. That the receivership under the bill of complaint in this cause be extended so as expressly to embrace the interests of your petitioner in said property, your petitioner submitting itself and its property to the jurisdiction of this court.

III. That said receivers be further directed to keep separate accounts not only of the lines owned by said defendant but also of such of the leased lines embraced in your petitioner's system and in your petitioner's said lease as may be deemed practicable, and that the rents, issues, profits and income be applied under the orders or decrees of this court to the end that said system of your petitioner may be protected and preserved. IV. That your petitioner may have such other and further relief as may be just.

METROPOLITAN STREET RAILWAY COMPANY,

By D. C. MOOREHEAD,
Secretary.

J. PARKER KIRLIN,

Solicitor and Counsel for Petitioner,

27 William Street,

New York.

FORM LIII.-WRIT OF NE EXEAT.

[Printed in full, supra, § 328.]

FORM LIV.-PETITION FOR SUBPOENA DUCES TECUM IN AID OF DEPOSITION DE BENE ESSE.

To the Honorable the Judges of the [District] Court of the United States for the Southern District of New York:

The petition of respectfully shows:

& Company. Subse

I. Your petitioner resides in the Borough of Brooklyn, City, County and State of New York. On or about May 12th, 1905, your petitioner duly filed in the [District] Court of the United States for the District of Massachusetts, a bill in equity against and John Doe, which latter name is fictitious, who were transacting business as stock brokers in the city of Boston under the firm name of quently your petitioner duly amended said bill by an amendment duly filed in said court on or about May 15, 1905. Subsequently our petitioner further amended said bill by a subsequent amendment duly filed in said court on or about June 5, 1905. Issue in said suit was duly joined on or about October 2, 1905, by the filing by your petitioner of a replication to an answer filed to said bill on or about September 10, 1905, by said defendant John A. Caldwell in the place of John Doe, joining in said

answer.

II. Amongst the issues raised by said pleadings are the facts concerning the purchase and sale of certain shares of stock made, and some that are claimed to have been made by said defendants and by certain firms of stock brokers, who were the predecessors of said defendants; namely, the firm of & Company and the firm of & Company; both of which said firms transacted business for this petitioner in the City, County and State of New York.

III. The shares of stock and other corporate securities which were the property of your petitioner, and which were held by said preceding firms, are now in possession of the defendants herein, who claim a lien upon the same because of an alleged indebtedness by your petioner to said preceding firms.

IV. Amongst other claims made by said defendants in said suit, they insist that they are entitled to a lien upon said corporate securities and shares of stock, because they aver that your petitioner was indebted to the said firm of & Company in the sum of $4,000, for a purchase alleged to have been made on her account by said & Company of 400 shares of stock, in an alleged mining company known between the parties as Avino, the exact name of which is to your petitioner unknown, at the price of ten ($10.00) dollars a share.

V. Your petitioner is informed, believes and alleges: That no shares of said stock were ever purchased on account of your petitioner by said firm of & Company; and that the books of account, contracts, letter

books, stock orders and other papers of said firm of & Company will show that the shares of said Avino stock, the alleged purchase price of which is charged against your petitioner as aforesaid, were at the date of said alleged purchase, the property of said firm or else of one of the members thereof; namely, ; and that the original entries concerning the same show that the purchase price of said stock was charged against said Clark in the said books of account; and that the purchase price of the same was no more than eight ($8.00) dollars a share.

VI. If the books of account and other papers of said firm were kept in accordance with the usual practice of stock brokers in the City of New York, they will show the names of all the person's from whom said & Company purchased shares of said Avino stock; the date of the purchase, and the purchase price, of the same. Your petitioner has been informed by, a former member of said firm of & Company, who is now somewhere on the Continent of Europe, to your petitioner unknown; that said stock was charged on the books of said firm against the personal account of one of the members of said firm.

VII. The said defendants further claim a lien upon said stock because of the alleged purchase price of 2,000 shares of preferred and 2,000 shares of common stock of the Federal Graphite Company, which purchase defendants claim was made by said firm of George E. Armstrong & Company on behalf of your petitioner. Your petitioner is informed and believes and alleged: That the said shares of stock in said Graphite Company were never purchased by said George E. Armstrong & Company, on behalf of your petitioner. At the time when the first charge for said alleged purchase was made, the certificates for the same, which were subsequently offered to your petitioner and refused by her were in the name of the said firm of & Company; and were as your petitioner is informed and believes, the property of the said firm or else the property of one or more members of the same.

VIII. Your petitioner is informed and believes: That the books of account of said firm of & Company and the contracts, letter books, stock orders and other papers of the same, will show that no such purchase of stock was made by such firm, nor by any member of the same on behalf of your petitioner at any time. If the books of account and other papers of said firm were kept in accordance with the usual practice of stock brokers in the City of New York, they will show the names of all the persons from whom said firm ever purchased shares of stock in the Federal Graphite Company; the date of said purchase and the purchase price of the same.

IX. The said defendants further in the account, which they have presented to your petitioner and upon which, they claim the alleged balance exists, for which the said lien upon said shares of stock is claimed by them in their said answer, credit your petitioner with the sum of four thousand nine hundred sixty-eight ($4,968.00) dollars only as the proceeds of 1,000 shares of stock in the Boston Consolidated Gold Mining Company which stock was in the possession of said George E. Armstrong & Company; and