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THE LEAVENWORTH WEEKLY TIMES LEAVENWORTH KANSAS,, THURSDAY JANUARY 23, 1879. NUMBER 1251. Con.tnrati.tr FstabI-b I 0 R. Anthony January 1B6t i M . (i fc - r THUESDAY. JANUARY 23. 1879. AN ml'OBIAMT CASE. The case of Ryan vs. The Leavenworth, Atchison & Northwestern Railroad Compa ny, is one of very great importance, not on ly locally but generally, for the principle involved is one that directly affects the in terests of stockholder, in hundreds of other corporations, whose interests have been se questered by the controlling power of the corporation. It baa become an universal rule amors corporation in thia country, that "the big fish eat the little ones," and the tendency of this decision is in the di rection cf giving the little fish a chance to recover their right. We publish in full this morning the Plaintiffs brief, in the Supreme Court, be cause it rata forth fully and distinctly the prhole ground of action, and all the impor tant circumstances of the case. It is a clear and concise statement, and will give the reader a correct idea of the questions in volved. It sets forth that the defendants, who owned a controlling interest in the company, made certain contracts with cer tain of their own number, whereby the in terests of otherstockholders were sacrificed. The opinion of the Supreme Court of the Srate, as will be seen by the syllabus pub lished a few days ago, is to the effect that euch contracts are fraudulent and void, and that the stockholders who weie thus ''frozen out" have a right to sne for the recovery of their proportionate share of the profits of all such contracts. Suits may now be instituted by Ryan, and all other stock holder of the minority who feel to disposed, for the recovery of their in terests sacrificed under the contracts above referred to. If the city and county of Leavenworth had not piven away the half million of stock they held in the Missouri River Boad, they might now come in for an equitable share of the profits under these contracts; they would become the sole owners of the Diminished Delaware Be serve, and would come in for the larger share of all other profits growing out of the contracts for building the road. This sustains tht posi tion we have always held on this question The positions we have always taken, in all the speeches and articles wo have ever made or written on this subject, are dis tinctly and positively affirmed by the opin ion of the Supremo Court delivered by the Chief Justice, with the concurrence of all the oilier justices and if, as we have said above, the interests of the city and county had not been bartered away, we might now recover enough to pay nearly all our pub lic debt the nniTH raniLY ni'iiraB.' Our Legislature is not blessed with the usual number of Smiths. There are thtee Andersons, three Martina and three Waites and only two Smiths, two Clarkes, two Lowes, two Hameltons, two Wilsons and our two Gables in the House. The Smiths will now be compelled to take back seats. TaPLOFTlCAL. Ot course Governor St. John has a right to dispense his official favors aa sal's bis fancy, but he will probably realize sooner or later that It don't pay to reward enemies and pun ish friends. Kansas Ctty vaL There seems to be no question of the fact that the sudden altitude attained by Gov. St. John has afiected his brain and his eye right to that extent that he'sees double. While in this toploftical condition he is in constant danger of breaking hi neck. There is only one hope for him time. Two years hence, he will descend to his natural level. XVTON VS. ANNO!. The interview on the local page of The Times yesterday mo ting between Col. Isaac E. Eaton and Mr John Hannon was published without our ;owkdge or con sent. It was slipped in after the editorial force had gone home. It reads as though Mr. Hannon had written it If such is the case we are verv sorry. We would much rather see peace and harmony among our Democratic friend'", and regret to see any ill feeling exist between Col. Eaton and Mr. Hannon. The latter is the younger of the two in age and experience, and should no have any opinion of his own when the friend ot Bill Allen and George Pendleton speaks. BL'LLDOZIAG SUCCESSFCI-. The facts regarding the delivery of the Governor's message to the Kansas City Times show that the first copy was given to their agent Pangborn. Other papers had hour after hour asked for a copy but failed to get one. The Leavenworth Times never secured one from him. These facts seem to warrant the conclnsisn that the Governor did not have sufficient confidence in his own integrity to withstand the dreaded assaults of Pangborn and his paper. The attempts of the Kansas City Timet heretofore in its bulldozing have uniformly been successful. They can now reckon the Governor as an additional victim. Assenting to their de mands and begging to be let alone. Should we want aBy favors from the Governor during the next two years, we will make the application through Pangborn and our Kansas City namesake, as that now seems to be the quickest way to obtain the Gov ernor's car. A SUCCESSFUL RAILROAD ATIt REV. George T. Anthony is now out of office -, for the first time in over twelve years, and there is some'little curiosity aa to what he will da for a livelihood. He needn't be long out of employment He is a TfJu ahle man to any railroad company that has a questionable job on hand, and there are a number of them that ought to be willing to give him work. The opinion of the Su preme Court of the State in the case of Ryan vs. The Leavenworth, Atchison A Northwestern Kailroad Company, shows that if Leavenworth city and county had not given away their interests in the Mis. souri River Bailroad, they might now re cover enough to pay their debts, thus end ing at once the troublesome bond question and relieving our people of the burden of taxation under which they are struggling. George T. was the active agent of the rail road company in working through the scheme by which the city and county were made to barter away their rights in the premises, and thus rendered service that " every railroad company would be willing to reward very liberally. In the case ot the L. L. 4 G. road, also, he, as Governor of the State,- by sacrificing the interests of the people rendered ser vices to the company which saved it hun- , dreds of thousands of dollars, at the ex- "'' v pens of the public interest, and enabled it to violate its contract with the State, tad the conditions of its charter, with impunity. Such service ought to command a liberal reward, wherever there is questionable work to be done. No wonder be "got mad" when John Martin said La waa going to Chicago. He doesn't seed to more away. There's always a deasaad for each talent a his, "out watt," E3URKS I-ROn A DEM OCKVT. Editor Times: I notice by dispatches in the Chicago Tribune and St Louis Gfeos Democrai that the Leavenworth county del egation are divided between Mr. Anthony and Mr. Ingalls. This may be true aa far as it goes, but the writer should have men tioned that four of them 'will vote for some Democrat either Mr. Fenlon, Mr. Goodin or Mr. Blair. When it orcei to the selec ion of a United States Senator thre can bj no compromise. It is not a matter of lo cality, not a matter of iersonal like or dis like, but it is a matter of principle, and where principle is involved the people de mand and expect a fair, straight square vote for the representatives of that idea. There can be nothing more edifying than the spectacle of a little minority standing up bravely, in the face of an over whelming majority and voting for the rep resentative of thefrparty. To class either of the Gables from this county aa voting for either Mr. Anthony or Mr. Ingalls is to assail the character of the sons of one of the staun'-- i and noblest Democrats who ever live a Kansas. Fio-n their pledge, from their character and from their antece dents, I should say, Mr. Editor, that Mr. Beven, Mr. Frank Gable, Mr. Tom Gable and Mr. Henderson will vote for a man who is an exponent of true, honest Dem ocracy, and not for a man who has publicly declared that had he the power he would sink every Democrat in hell. Democrat. C. K. w.pTitiTrKon-THE I'KO. M.E TALKI.Mi. Beloit, Kak., Jan , 1S79. My Dear Times: Being of the opinion that the time-table on the Central Branch road hareen changed for the benefit of Atchison storekeepers and hotel proprietors, I send you the accompa nying communication with a view of calling public attention to it. I am persuaded that' the little one horse railroad corporation and the town of Atchi son cannot stand fair and honorable coaape tion. The sooner the first is dissolved and the latter deserted, the better. Northern and northwestern Kansas cannot be com pelled to pay tribute to either. ery Kespecttully, -V. CHANGES OF TIME OX THE CETRA1. BRANCH. Atchison Champion: A new time table went Into effect on lue (.'antral Uracil Railroad yes terday. The express and mall tra n now leaves tbeclty al 11:23 a in., and arrives Ht Brloll at S:K p. m Iteturnlng.lt leaves Be loIlat&2ua in., and arrive- ut Atchison at 2:2) p. ra. The night lreizlit leave at 5:19 i. m. The freight express leave this city at iiH p m. The local freight leave at 11:25 a. in This Is five trains nun iiavencer jm.l four freight neh day. The pixienger train ar rives at Washington at -V) p. m and leaves that place al 415 a. m. The Republican Val ley accommodation leaves Concoidla for candla.it 8:00 a. m ano arrlvexRt S:5 a. m.. Returning, leaves tc3ndK at 3:15 I. m. Beloit, Januaryl", 1S79. Editor Times : The above iiem was clipped from your edition of the loth insL received th"a morning, but which had it not been for the change of time chronicled above, would have been at hand yesterday morning. The change of time to which the article refer, you will observe, delays the delivering of your paper to the subscribers just twenty four hours, and hence so far as world's news is concerned, Beloit by reason of the judicious change of time made by the superior wisdom of the managers of a small periodical railroad, is thrust one day farther from communcation with the "rest of mankind." News now a days is indis pensible, and it is a necessity which the people, it is hoped, will not suffer to be withheld simply to gratify the whims of the paid officers of a corporation. Not only are we deprived of your valuable paper for twenty-four hours, but all the mail matter from the east, b way of Kan sas City is delaved; travel is interrupted and consequently the entire business of northern Kansas is thrown into confusion. Why should a traveler fromthe east be com pelled to lay over an entire day at Atchi son? Why should the reading public who are so interested in such enterprising pa pers as yours, be deprived of their news, and be compelled to subscribe to Atchison journals? The change was not rendered necessary in order to mane con nection with through lines east, and ii surely could not have been made to meet the demands of the people west of this place, for their mails are distributed at lhs point and they therefore sufler the same deprivation that we do. The tax payers along the line of this little road were induced to assume a burden of taxation to pay at least one half the expense of build ing it under the assurance that the accom modations they would enjoy would more than compensate them for the outlay. Where does the recompence show itself? If five cents per mile fare and more than double the freight rates charged by eastern roads, and twenty-four hours delay in their mail and travel is a comensation, then their liberality has been fully appreciated. Beloit. AOENERATIOX OF VIPER. EDrroE Times: I noticed in the issues of your papers of last week a lady brings to task one of our respected and distinguish ed divines. And in your Sunday morning's issue a review of the sermon of another divine no less respected than the former and perhaps more distinguished for fear lessly declaring the truths of God's word. Now, allow me to say that the difference betwixt these divines, or rather the points they are attacked, are these : One lays him self open by following after the husks of the world and "turning aside by the flocks of the companions." The other by fearlessly declaring the truths contained in God's immutable word and in the defense of Hi, holy Sabbath. I am reminded of the story of a shepherd boy who gave battle to a proud Philistine who defied the armies of the living God. He went forth with his eling in hand and under the direction and by the aid of the eternal Jahova, the stone directed by an unerring hand, hits the proud Goliah and he is made to bite the dust and the sword that he prided himself in and depended upon, was the instrument used by David to sever the bead from the proud Goliah, who, a lew minutes before, breathed out his vile threatenings against the people of God. Now, Mr. Editor, I do not wish to intrude upon thecolumna of your paper by a lengthy discussion, but will quote a few passages from God's word which are much more potent than a. y ar gument that I could produce. We are plainly told in his word that connot lie: "If the world hate you ; you know that it hated me before it hated you." "If you were of the world the world would love its osm." "Know you not that the friendship of the world is enmity with God ; whoso ever therefore will be a friend of the world ! the enemy of God." "Marvel not my brethren If the world hale you." He who waa holy, harmless, and undehled says "they hated me without a cause." You charge MrSpenrer with holding narrow and contracted views and make light of his denomination because they are not as nu merous aa some others who conform more to the world and the follies of the present age; this is not a good argument Scrip ture teaches that strait is the gate and nar row is the way which leadeth unto life and few there be that find it. "Many are cal.ed hut few are chosen." 1 believe it was Fred Douglass that said one with God is a ma jority, I say to Mr. Spencer you should feel encouraged in the defense of Gods holy Kihhath and in the truths you uttered. There is no better evidence that your dis course has not been as water spilt upon the rmnnd that cannot be cathered than for it tr. call forth the denunciations of the Mtilar ureas whose interest and aim is to minister to the taste of the people A greater than Mr. Spencer siood upon Mars Hill in the midst of a gay and frivol ous city and boldly entreated the proud ana naugniy cioics 10 rciwuh ul wwi nxi.. edneas and foretold of the comine of a ter rible retribution. The learned philosophers derided his doctrine, and afterwards he was heard to say his preaching "was to the Jew a stumbling block and unto the Greek fool ishness." Fear not the reproaches of men, Mr. Spencer. Lovejoy lost his friends and his life in the cause of freedom. You may lose the friendship and gain the hatred of the world by declaring truths that others neg lect to proclaim. But remember you are a minister of GoJ, an embassador of Christ; go on in thia good work and "fear not the reproaches of men, neither be afraid of their revilinga." Yon have the promise "lo, I am with you, even unto the end of the world." "Your road through life may be roogh, aad your preaching distasteful to tba bbsb of the woild Let your motto be. "Jete live the life of the Christian, that my last end may be as his." And if at the end ot your.ministry you can say as your brother who'etood on Mars Hill. "I have fought a good fight, I have finished my course, I have kept the faith: henceforth there is laid ud for me a crown of right eousnesa which the Lord, the righteous Jndce, fhillgivems at that day," you will have no caufe to fear a wicked and un friendly eeneration nor regiet the sermon referred to in The Times. C. GOTOTIIEHOOTOFTIIK JIATTER. Editor Times : The pastors of our city in their various sermons upon (he duty of Sabbath observance, do not teem to under' stand that the indirect beginning of this gen eral want of respect for the sacredcess of that day, was made by the Christians themselves when they changed the day from the one which " God blessed and sanctified" as a day of rest, to one of the days which God had declared by direct command should be a working day, (The duty of working six days in the week being as vital as that of resting on the Sabbath or the seventh,) by this change losing its significance of lest. We look vainly through the Old and New testament, for any authority to sustain this innovation. We have simply a custom against the direct command of Jehi ah. Paul, while in Antioch, lone after the resurrection, held services upon the Hebrew Sabbath. At Corinth he labored at tent making through the week, probably the first day included, and reasoned in the synagogue every Sabbath persuading the Jews and ureeks. it was on the baDDam that Lvdia and her household were con verted; we might just as well change Christmas to the 14th of February, and the Fourth of July to Jhe 1st ot April, and then complain that our days are cot re' spected, as to do as these gentlemen have done. Christmas and Fourth of July are but human institution, but the Sabbath the day blest of Hetven mad.! memorable by divine rest, after the fiat of creative power, given with the authority ot the di vine signature on tables of stone, that it might be as enduring a? the rock-ribbed earth itself, is changed to another day. In fact, asking God to let us encore our own time and denouncing those who do not scree with us, when we have no record of His consenting to change, is ibis consis: ency. S. A Small Attack on "tr. Iag-nlls. K.Y. Tribune Washinoton, Januiry 13. Senator In galls, of Kansa, whose term of office will expire next March, is just now the subject of asomewhat bitter personal attack from his political oponects, the object of which is to defeat his re-election to the Senate. A letter written by him in 1S76 to Major Gale, late Postmaster of Atchison, has been unearthed and sent to Washington, whence it has been telegraphed back to Kansas for publication. In it the Seuator, after referring to certain financial trans actions, which are not explained in the let ter, says : From what you last told me, I supposed everything had been arranged. I cannot be annoyed in this way any longer, and if you don't settle with Mr. Martin by March 1st to his entire satisfaction, and monthly thereafter as stipulated, I shall be com pelled to try and find eomtbody in your place who will. The worst possible construction is, of course, placed upon these words, but, as explained by the Senator, the transaction turns, out to have been innocent enough. When Senator Ingalls was elected, Col. Martin was Postmaster at Atchison with something more than a year to elapse before the expiration of bis term of cilice. He was al.-o editor of a Republican paper, and his father performed the duties of Post master. Senator Ingalls was favorable to the renomination of Col. Martin to another term of PoMciaster, and was about to use bis influence to this end, but was informed by the latter that he did not wish to hold the office longer lhan till the end of his term. Thereupon the iffluonce of Senator Ingalls was sought and ol't lined in favor of Maj. Gale. When Col. Manin's term was near its end, and after Senator Ingalls had pledged his efforts to Maj Gale, he receiv ed a petition signed by many of the oldest and most respectable citizens of Atchison, in behalf of the appoin.ment of Mr. Mar tin, the elder, to the position of Postmaster. The Senators position was somewhat em barrassing, and on his firt virit to Atchi son he brought all parlies together and had a talk about the matter. At this meeting it was agreed that the Senator should exert himself, as he had already eureed to, to se cure the appointment of Maj. Gale, and the latter promised to appoint Mr. Mar tin the eMer, to a clerkship in the cilice. Maj. Gale also agreed lo purchase from Mr. Martin, the Yale lock boxes and other necessary fix tures of the Post Cffice, and to give his note, payable in monthly installments with interest. This programme was carried out as far as the appointments were concerned; but after a few months of the new regime some trouble arose in the office, and Major Gale declared that he could not work har moniously with Mr. Martin. The note had not and has not yet been paid. Mr. Mar tin's friends appealed in his behalf to Sen tor Ingalls, and the result was the letter that now comes to light Senator Ingalls says ro that payment of money to himself or to Col. Martin or to any one else waa involved, except to Mr. Martin the elder, and lo him only for value received. He says that was there nothing in the matter which, so far as he is concerned, might not have been known to the world at the time; but he admits that in the light of subsequent events it was injudicious to have written a letter on the subject which could have been misinterpreted in this way. lie u a. Skunk, stare. Holton Recorder. Jan. 1S-1 The Leavenworth Times and Public its are at it again. For some time the Times has been treating the P.aa with silent con tempt. The PrtM, a few days ago, contain ed an article charging Col. Anthony with paying Senator Ingalls $2,000. for his ap pointment as postmaster of Leavenworth. The Col. indicnantlr denied the outrage ous and infamous charge, and proceeds to deliver such a broadside into the editor of the JVJ that, unless he is really the "skunk" that Anthony ssyB hi is, he will probably sell out his paper and retire to obscurity. Tun nanghther, the Wile and Tloibar 71 ore Tnau tbe Princes. New York Ledger.l Even in places humanity rises above rank. We have seldom read a more touch ing piiIopv than that at once so brief and so comprehensive pronounced i by Dean Stanley on the Princess Alice : "She first ncvam known to the public" he said, "through her noble conduct by the death bed of her father: and she has now fallen a sacrifice to the devoted care with which she nursed her husband and her children." Most commendable, most sublime, of all thimga in her life to be spoken of after her death, the Dean of Wesitninster holds to be the faithful performance of such duties .. WnlveH nnon the Princess in common with the humblest woman in the land. Every right-thinking man will agree with him. Doca't Dear the Alliance. I Kansas City Tl mi s 1 But what surprises us is that the Leaven worth Times should get so frustrated over this biennial "scoop."- Not content with abusing the jTtme,ournamesake vindictive ly reads Governor St. John out of -the Re publican party for preferring a Democratic tJ a Republican newspaper. He (the Leav enworth editor) detects a montrous politi cal conspiracy between Governor St. John, ex-Governor Anthony and the Kansas Oty Times, and mercilessly shows up the "tripartite alliance," and tries to ruin the whole thing by exposure. The Times has no apology to oiler lor this misalliance. If ths accusation is true, Jit ex hibits the good sense of Anthony and St. John in pledging their political -fealty where it will do them the most good. If Governor St. John is to be driven out of his own party for doing what nearly all of his predecessors have done, and what all of his successors will inevitably do, we shall welcome him to the ranks of the Democra cy and support him as long as he is true to the rjartv standard. It is with no common pride that we point to the capture of a Kan sas Governor before be haa been a week in office, and that, according to the Leaven worth Tntzs, we shall soon be able to re- nnl ti faiihfnl TWmnrnlie service of bis predecessor by Bending him to the TJonited 6tat8 Senate. IX THE SCPBEXECOCMT OF KANSAS. Matthew Byan, et a!., Plaintiffs in error vs. The f:avenworth, Atchison & North western Railway Company, t al., De fecdants in error. statement oe the case. The plaintiffs in error, brought their ac tion against defendants in error, in the Dis trict Court of Leavenworth County. In this action the defendants in error, appear ed and filed demurrers to the petition, which were sustained by the Court below. From the order sustaining the demurrers the plaintiffs bring the case to this Court. Tbe several demurrers raise the same poinur and are expressed in the same language. They are on the grounds: That plaintiff have not capacity to sue. That there is defect of parties, plaintiff and defendant. That tt-e several causes of action are im properly joined. That the petition does not state facts suf ficient to constitute a cause of action. It will be necessary, in order to discuss the points raised by this demurrer, to ex amine the petition critically and carefully and it will probably facilitate such exami nation to make in briefer form, an analysis of its statements and allegation. It is said in the petition. That a company called the Missouri Riv er Railroad Co., was incorporated under the general laws of . the State, February 17th, 1SG4, to build and operate a road from the terminus of the Missouri Pacific road, at the State Line in Wy andottee coun ty, to Leaven or th and thence to Fort Leavenworth. The capital Stock was fixed at 5200.000. On April 6th, 1805, a subscription to the stock ol the Company was opened and $45,' 000 was subscribed. Of this sum $970 was paid at the time and nothing haa ever been paid thereon since. The list of subscribers and amounts sub scribed and paid, a annexed aa an exhibit to the petition. (Ex. No. 1 May 8, 16C5, Leonard T. Smith, Thomas U. Stevens, Emanuel il. umber, John r. Richard, C. B. Brace, J. C. Stone, A Mc Cauley, C. S. Stettauer, C Blake, Lucien Scott and E. II. Marsh, were chosen direc tors of tbe Company. Record p 4. The same day Leonard T. Smith, was elected President, Thoa. C. Stevens, Vice President, J. F. Richards, Secretary and E. H. Gruber, Treasurer. On May 7tb, 1SC5, the City of Leaven worth, under authority of the statute au thorizing such subscription and an election held in imrsurance of the statue, subscrib ed 250,000 to the stock of this company. il.iy 13th. 1S65 the authorized stock of the Company was increased to 51.000,000. June 20th, 1S55, the city issaed $250,000 in bonds, paid its subscription and receiv ed its sink certificate. Record page 5. In July 1S0-5, the county of Leavenworth, under authority of the same statute and a like election, subscribed ?250,C00 more to the Mock of the company, issued its bonds, paid the subscription and received iU stock certificates. Soon after all the individual subscribers. except A. Caldwell, L. T. h-'inith, Lucien Scott, Thos. Carney, Thos. C. Stevens and E. 11. uruoer. released to the Uunpany their right to stock which waa accepted by the Company and their connection with it ceaed. Record p G. No further or other payments on account of stock subscription were ever made. Alter the city and county had paid lor their stock the road waa built to far as it ever waa built, at all,by an association, composed of the following persons, defen dants in this action viz : . Lf-onard T. Smith. Thomas A. Scott, John D. Perry, George R Taylor, E. IL Gruber, Thomas Carney, Thomas L. Price, D. R. Garrison, Charles It. Peck, Oliver A. Hart, James Puffy, A. Caldwell, Lucien Scott, Levi Wilson and -Merritt ll. insley. liecord p. 7. They first screed among themselves, to build the road on these terms. They were to receive : The bonds issued by the city and those issued by the county $500,000 in all. Of these bonds 300,000 must be cashed at par by c'tizers of Leavenworth, They must receive $700,000 in st ?700.000instockof the Railroad Co. All $500,000 in Iwnda of the Company to be secured by first mortgage on all its prop erty. Dip road when completed to De leased to the Missouri Pacific Company, most of whose officers and directors, with other of ficers of prominent railroads were engaged in the association. These men formed a co-partnership to engage in tbe work of building this railraod on the terms stated above and to control and manage it aftei- it was built. Record p. 8. In persuance of the agreement, Thomas A. Scott and A. Caldwell appeared before the board of directors and offered, on be half of themselves and their associates, whose names were concealed, to build tbe road on the terms agreed on among the co partners. At tbe meetinc a bare quorum was present and two of the quorum, Smith and Gruber, the President and Treasurer ol tne com pany, were at the same time members of the" co-partnership and among tbe un named "asociates," for whom Scott made the proposal. The Itoard of Directors at said meeting, referred the matter to Smith the President, who waa a member of the firm, and author ized him to make a contract for building the road. He made the contract. To conceal the nature of the transaction it was agreed that the contract should be in tl e name of A. Caldwell and that the others should be secret partners with him and their interest concealed lrom public knowledge. The name "A. Caldwell-' was maue me firm name and by that name the contract, between the firm and Smith, one of its members, acting as President and agent, appointed by the directors to contract for the corporations, was executed. Tbe terms were those before agreed on by the partners and proposed to the direc tors by Scott. Record pp. 6 and 10. The plaintiff's charge that this partner ship was formed and this contract made, with intent by aid ot the members o: ine firm who were directors, and of such as should become directors and officers of tbe company, to render the city and county stock valueless, to fraudulently acquire its value for the members of the firm and to acquire for the members of the firm all the property cf the Railroad Co., and to place the railroad when built, under the control of the Missouri Pacific Company, a foreign corporation. Record p. 10. After the partnership wss formed and be fore the contract aforesaid, was made, cer tain persona who were responsible and able to give good security for the performance of their contract made an offer in writing to do the clearing, grubbing, grading, mason ry, and track-laying of the entire road and to furnish materials therefor for $300,000. They were willing to enter into such con tract and would have done it it the same had been awarded to them. Had this been done, the whole c"t of the road would cot have exceeded $13,000 per mile. This was well-known to Smith and Gru ber, the President and Treasurer, to whom tbe oner was made, but they in tending to make the fraudulent con tract with their partners, before stated refused to accept the bid, or lay it before the Board of Directors. Record p. il. After the information of tbe partnership and before the land was acquired, hereinaf ter referred to Levi Wilson, D. K. Hoots and George Partridge, were by agreement with the partners taken into tbe firm. They had full knowledge of all the facts charged against the firm and are made co-defendants. Lucien Scott holds his share in the firm nartlv in trust for Thos. Carney, who is al so made a defendant. Record page 12. To conceal the character of the transac tion, Caldwell transferred the contract made bv him. to D. R. Garrison & Co., and un- dr the latter name, the work was done. This transfer was merely colorable; the work was done, expenses borne and profits divided by Caldwell and his associates and the name D. R. Garrison & Co., waa only another name for the original firm. Before anvthing had been done in per formance of the contract on tbe part of the firm. $700,000 in stock of the Company was issued to Caldwell and his associates, with out consideration. Record p. 13. This stock was issued before tbe January election in 1866 and at that election waa voted on. and Caldwell aad six of hiaco- I partners making a majority, ol toe rJoard I were thus chosen directors aad a amajority ' of th. board have ever since beem ismimi 1 1 of the film and the firm have ever since controlled the corporation; and Smith was reelected President and haa ever since held that office. Record p. 14. At the last election held before the peti tion waa filed, eight of the eleven directors, were chosen from members of the firm and the three others are not stockholders in tbe company. About January 1st, 1S66, before any part of the contract bad been performed by Caldwell and bis associates, the bonds of the Company to the amount of $500,000 were issued to them and secured by a first mortgage on the road and all the property of the company, on hand or to be acquired. Caldwell being trustee in the mortgage. Record pp. 15 and 16. A copy of the mortgage is made an ex hibit and attached to the petition. Exhibit So. 2. After Caldwell and his associates had thus obtained control of the Company and become its directors, obtained the stock and mortgage bonds, they proceeded to build a railroad from Wyandotte to the junction of the Kansas Pacific railroad, south of Leav enworth, about nineteen miles in length. From Wyandotte to the State Lice2i miles and from the Kansas Pacific junction to Leavenworth about 4 miles a third rail was put on the track of the Kansas Pacific road to accommodate the Missouri Pacific gauge. Plaintiffs do not know who paid for it, but the work waa done by Garrison, who waa building the western end of the Missouri Pacific road. The firm also built a mile of road from the freight depot in Leavenworth, up to the city and built a round house on land not belonging to the Missouri River R. R. Co., which has been since used by tba Kansas Pacific and Missouri Pacific companies jointly. The third rail baa been since removed, the Missouri Pacific company having changed its gauge in 1863. Caldwell and his associates did not build the road of the Missouri River Company to either terminus, they stopped 21 miles north of the southern andeeven miles south of the northern termiaus. Th whole cost of the road did not ex ceed $500,000. Record pp. 10, 17, 18. Since July 1, 1866, the road of this Com pany, haa been leased to the Missouri Pa cific Company. The rental was at first fixed at 45 per cent, of the gross earnings, hut in Septem ber, 1870, it was increased by more than 40 per cent of the original amount of the rent. Record p, 18. During 1SGC, negotations were pending, for the purchase of a tract of land, 'known as the Delaware Diminished Reserve, containing over 92, 000 acres of land. These negotations terminated in a treaty, by which the Indians agreed to cell these lands at a minimum price of $2 50 per acre and the R. R. Co. to have the pre-emption right to purchase The treaty waa ratified Aug. 10th, 1866. By its terms the Secretary of the Inte rior waa authorizedto sell the lands; required to give noticeto the Missouri River R. R. Co., of the fact that they were for sale, within 30 days after the ratification and tbe Railroad Company waa to have tbo ex clusive right to purchase the same on giv ing notice to the Secretary within 20 days receiving notice, that it elected to do so. The notice was riven and the Company elected to make the purchase and gave the J return notice within tbe time required by the treaty. The sale was made at $2,50 per acre and improvements to be. appraised and paid for and contract for sale and pur chase executed by the Secretary and Rail road Company and security given by tbe latter for performance of the contract. Rec ord pp 18, 19, 20. The contract is set out in full in the pe tition and vesta an equitable right to the land in tbe Kailroad Company. Record pp, 21 to 21. Smith with intent to deprive the com pany of their purchase and obtain the same for the partnership, made a conveyance of these lands to Caldwell in the name of the Company and under its seal, without au thority from tbe Company and without consideration, and aa president, requested the Secretary of the Interiosato issue the patent to Caldwell. RecorAsge 85. Caldwell and his partners then bad on hand $433,000 at least, of funds belong in equity to the Railroad Company as follows: Proceeds of city and county bonds cashed in Leavenworth by citizen at par $360,000 $140,000, same worth 80c.... $112,000 $500,000 first mortgage bonds, worth 80c $400,000 Rent from July 1865 to July ISoo to July 1867, at $33,000 $06,000 $938,000 Expended in construction, not more than $500,000 $433,000 Coldwell paid for these lands out of these funds, the amount paid being not more than $250,000 and on this payment tho Secre tary mado the patent to Caldwell. Record pp. 27, 41. The lands are described in full in the pe tition. They amount to 93,593 33-100 acres snd were then worth $14 per sere. Record pp. 27.31. Plaintiffs charge thatCaldwell took the lands as trustee in equity, for the Railroad Company and that all of them held by him and his associates have been since and now are so held. P. 32. Caldwell conveyed 8,023 acres of these lands to Shoemaker,SMiller & Cowho were parters in hia original firm for $165,065.40, and divided the money among the partners to the original firm. "P. 32. The remainder of the lands were divided into thirteen shares and the shares drawn out and a division made among tbe mem bers of the original firm. Caldwell and wife executing conveyances to tbe several partners of their respective shares. P. 32. A map of these lands is annexed as an exhibit to the petition. Exhibit No. 4. Some of these lands have been sold by the partners to other persons, part for cash, part with security for deferred payments divided. Plaintiffs cannot state how much haa been sold, how much realized, what se curities are held, or what portion cf the land is still unsold. P. 33. Although large sums have been realized in the business of the Comuany from rents and other sourer, including the amounts realized from the proceedings above stated, no dividends have been declared or piofit among the stockholders, but all have been siezed and converted by the Directors, who are members ot tbe hrm, to the use ol tbe firm. P. 34. On March 28. 186S, the Leavenworth, Atchison & Northwest, rn Railroad Compa ny was incorporated, to build a road from Leavenworth to Atchison and thence north west. The capital stock was fixed at $500, 000 and afterward increased to $600,000. P.S4. Aid was sought for this Company from the city and county of Leavenworth and it was proposed to assign to thia Company the stock held by the city and county in the Missouri River R. R. Co. Caldwell and his asstciates, ascertaining that it was probable that this would be done, for the purpose of controlling the stock, so to be assigned and preventing in vestigation into their management of the Missouri River Company and to avoid being called to account therefor, they pro posed to the corporators that they would take the stock and build the road, and pro posed to the plaintiffs to join with them in subscribing to the stock and building the road. Thia offer wss made by Caldwell, Smith, Wilson and Garrison for themselves and five unnamed, and to plaintiffs un known, associates. P. 35. Pending these investigation., Garrison came to Leavenworth and on behalf of tbe firm, represented that be and the other co partners would be able to cause the mort gage bonds to be issued by tbe L. A. A N W. R. R. Company to furnish enough funds to build tbe road. That they would make the stock of the Missouri River Com- Kny worth at least fifty cents on the dot r and that it would not be necessary for the Leavenworth, Atchison aad Northwes tern stockholders to pay their stock in full in order to get the road built. These rep resentations were made to induce the incor porators to let the firm take tbe stock aad to induce tbe plain tiff to join with tbe firm in taking it. These promises were never kept. P. 36. The plaintiffs had bo reason to disbe lieve these statements or to oppose Cald well, Garrison and their associates bad been guilty of, or contemplated any fraud or cooeealmeot They relied on these tatemeats asd in coax q peace joiaed with Caldwell. CHrriaoa aad taatr aaaocut'e la mtiactbessbscriptioe. Tha stock divided into tnaeteca warts a is that roporUoa by the differ who catered into the agreement. The five parts to be taken by the unnamed associ ates of Caldwell and Garrison were taken by pertcBi who subscribed for and after wards transferred their stock to defendants Peck, Hart, Harrison, Garrison and Rhea, except that the subscription of E A. Rich ardson, which was made for the benefit of Harrison, waa never transferred, but he holds it in trust for Harrison. P. 37. After the subscription and before the election of Directors, Caldwell and his as sociates thus got possession of a majority of the stock for the purpose of carrying out their intended fraud and concealment, they elected the Directors, a majority of whom were members of the firm, made Caldwell President ai.d have ever since controlled the Company, and the plaintiffs hare been powerless in the Company. P. 23. Eleven ninteenths (11-19) of the stock is held by Caldwell and his associates. Fight nineteenths (8-19) by others in the follow ing proportions : Plaintiff Ryan 1-19 par value $25,600. Flaiutiff Eaves 2-19 par value $51,000. Plaintiff Kuhn of 1-19 par Talue $12, 750. D. Shire of 1-19 or 1571 shares ; C. B. Brace of 1-19 or 157J shares; Rhea 1-19 or 315 shares ; Harriaon 1-19 or 315 shares. Harrison is dead and defendant Harrison ia hia executor. These parties have refused to join plaintiffs in this suit and are there fore made defendants. P. 40. On December 26th, 1SC3, the city of Leavenworth pursuant to a vote, authoriz ing the transfer, disposed of its stock in the Missouri River Company to the Leaven worth, Atchison & Northwestern Company and on the same day and by like authority the county of Leavenworth mde a similar disposition of its stxk. The Leave i worth, Atchison & Northwestern Railroad Com pany tbua became the holder of stock in the Missouri River Company, of the par value of $500,000. P. 40, 41. Caldwell and hia associates had already obtained control of the L., A. & N. W Company; they at once fraudulently sur rendered thia stock to Smith and the Directors of the Missouri River Company. The certificates were canceled and new certificates issued in place thereof, for $250,000 to Lucien Scott and $250,000 to II. L. Newman as trustees. Newman and Scott paid no considerations fir theses certificates and they were issued in lieu of the city and county shares which had been transferred as above stated. Newman claims that he holds" hia shires iutiuat, for the nineteen stockholders of the L., A. & N. W. Railway Company and Scott claims to hold hia in trust for that Company itself. Both refuse to bring suit or allow the plaintius to bring suit in their names, to compel Caldwell and his asso ciates to account. Scott refuses to allow the plaintiffs to see or take a copy of the certificates Lisued to him. Newman haa furnished a copy of the certificates issued to him, which is an nexed to the petition aa an exhibit. P. 42 and see exhibit No 3. Ever since the L., A. & N. W. R. R. Company wss organized, Caldwell and hia partners have managed it in their own in terests, and to prevent themselves from be ing called upon to account to the Missouri River Company or to the L., A. & N. W. Company aa a stobkholder therein, for the money and property they had obtained by means of the proceed inga and practices be fore detailed, and the L, A. & N. W. Co. aa a corporation ; though requested by the plaintiffs, haa refused to call them to an account by suit or otherwise. This refusal being the result of the control of the part ners over the latter corporation. Of the Board of Dircctora in the office when the bill was filed, seven out of eleven are members of the firm and one of the others Martin has a mere nominal in terest in the concern. He hasbeen kept in office by the firm, because he ia dependant upon them. Holds his office in this Com pany and an office in the Missouri River Company, by their appointment, and ia wholly "under their control and will do whatever they want him to do. P. 43. During the construction of the L., A. & 2. W., road assessments were made on its stock to the amount of 80 per cent- of its par value. On this Ryan haa paid $23, 500, Eavea $47,000, and Kuhn $1,750, and they hive received cert ifica tea of their etock aa paid in full. The L., A. &N. W. road was completed to Atchison in September 1SC9. It was operated under that lease until Sept 23, 1S70, Then tho lease waa canceled and a new one made at $42,500 a year or 45 per cent, of the gross earnings if exceedinz that sum. Of this rent $35,000 haa been applied to pay the interest on the first mortgage bonds of the Company. The balance has been paid over to the Directors who belong to said firm, and kept by them. P.4L No dividends have been declared and profita divided among the stockholders of the L., A. & '. W. R. R. Co , aa such, nor have any such profita ever been received by the plaintiffs. The plaintiffs charge that if Caldwell and his partners were compelled to account for and pay over to the Missouri River IL R. Company the money and property they have frauduently acquired and the same could be equitably distributed, the L-, A.& '. W. Co., aa stockholders in it and the plaintiffs as stockholders in the L. A. & N.W. Co. would receive a large amount of property equitably belonging to them and their -.lock would become of par value, or more, b-t by the fraudulent practices of Caldwell and his associates, they are una ble to obtam what is justly due them as such stockholders, or any dividend on ac count of such stock, and theirstock is great ly depreciated below its actual value and they are unable to dispose of the same at a tair value and they are unable to realize any thing like what it h worth, either on it, or from its sale. The plaintiffs have sought to obtain their rights through tbe Company, but have failed to do so, because Caldwell and hia associates have control of it and for the same reason, the Company haa not brought and will not bring any action against these parties, which mil be effectual in making them disgorge. Page 45, 46. Tbe Miffouii River Company re fuses to allow these plaintiffs any inspection of its hooka or papers and the L. A. N. Wi Co , refuses to allow the attorneys of the plaintiffs to inspect iU books or to allow the plaintiffs to make copies therefrom. Page 48. The facta charged in this petition aa to the existence of the partnership between Caldwell and hia associates, the manner in which their contract for the Missouri River R. R. waa obtained ; the issuing to them of the $700,000 in stock, without the consider ation in that company or the manner in which they obtained the Delaware Dimin ished reserve, nor the manner, purpose or object with which they became stockhold ers in the L. A. & N. W. Railroad, nor any of the facts charged in thebill aa constitu ting the fraudulent practices of Caldwell and hia associates, against which relief ia sought, by any of the plaintiffs before the year 1872, when they werebrought out, in Dart by the published testimony of Cald well in a suit between Shoemaker, Miller & Co., and Wm. A. fcimpson.nor were they known to, or discovered by the city and county of Leavenworth or by anyone inter ested in compelling an account to be taken, or obtaining any reltel against these prac tices before that year. Pare 46. 47. That all parties ia these fraudulent trans actions have been non-residents of Kansas and absent therefrom, during all the time since the organization of the co-partnerrhip except Smith, Caldwell, Scott, Wilson, Ins ley and Martin and each of the last named have during that time departed from thia State and been absent therefrom for more than one year of that time. Page 47, 43. That the L.A-& N. W. R. R. Co., about November 7th, 1870, conveyed all its property, by mortgaze, to secure its first mortgage bonds to McPherson, Scott and Jno. A. Stewart trmtees. McPherson is dead and the defendants Scott and Stewart are the sun iving trustees. Page 43. That Thomas L. Price one of tbe associ ates of said Caldwell, in the co-partnership aforesaid is dead. Caroline V. Price is hia widow, Thomas B. Price his only child, these are also hia executors. Plaintiffs pray for a decree, declaring the contract for the Missouri River JR. R. void. Declaring the $700,000 worth of stock is sued to Caldwell and his associates void. Appointing a Receiver in this action, de creeing that the co-partners account for the lands conveyed to Caldwell, for the firm aforesaid aad for the city and county bonds and proceeds tbereof,reoeived bv them, and for the $500,000 first mortgage bonds re ceived by them; that they be allowed cred it for their actual and necessary expendi tures in buildine the road or otherwise: charged with all the property' and Bsoaey received from tne above tourow and from the aale of lands. That they convey all the lands remaining unsold j to the Receiver lor the use and benefit ot the Company and its stockholders, turn over all securities received on the sale of such landa and all monies and securities held by them, and equitably belonging to the Company, to the Receiver; that he col lect all unpaid securities and obligations to turned over to him and whatever may bs found due from them on such accounting. That the L. A. & N. V,'. R. R. Co . be de creed to be the owners of the 500,000 stock in the Missouri River R. R. Co., subscribed by the city and county. That an account be! taken between the two companies on that basis ; that the proportion of lands, monc7 and property recovered from Caldwell and his associates and belonging to the L. A. & N, W. R.R. Co., ba decreed to the latter, and tbe shares ol'ihe same belonging to the latter Company be vetted in them. Plain tiffs also pray for general relief. P. 40, 51. Upon these statements of facts, we make the following points: rOl.tls. 1. The ground of demurrer that tho plain tiffs have not capacity to sue, merely raises the question whether the plaintiffs are per sons competent in law to be plaintiffs in an action, and they are to ba regarded as such till some disqualification appears and none appears on this record. The cause of demurrer that there is a de fect of parties plaintiff and defendant is not good. 1st. If any snch defect can be found in the petition it was the duly of the defen dants to point out in their demurrer, show ing what necessary parties vera omitted, and having failed to do to, the demurrer must be overruled Storys eq., pleading, Sec. 513. 2d. If it should appear by the petition, that other parties defendant, might have been properly! added, the plaintiffs were under no obligations to do so, aa the wrong-doers are jointly and severally lia dle. See Heath v. the Erie Railroad Compa ny. 8 B!atch,."17, in opinion on page 410. 3d. The ground that several caui-es of action are improperly joined is not true. Only one cause of action is stated. A Feriea of fraudulent breaches of tru't is stated, all culminating in one cause of action for tbe recovery of properly, held by Defendants in trust and in part for Plaintiff.. 4th. The ground that the petition does not state facta sufficient to constitute a cause of action, is not good, aa appears by the fol lowing propositions of law : 1st The contract for. the construction of the Missouri River Railroad was void. The action of the Board of Directors, purporting to authorize the making of the contract, having taken place at a meeting of Directors, amounting in number only to a quorum of the Board, and two of that number, Smith and Gruber, being members of the co-partnership who took the contract (See record page 8) and Smith afterward as President of the railroad Co., having "ex ecuted the C0Dtr.ct to Caldwell, in the firm name of the co-partnersliip and for tho benefit of its members, pursuant to such authority, that could only have been grant ed only by the votes of Smith and Gruber. They, Smith aul Gruber, S3 di rectors, made the contract with them selvea3 members of the co-partnership, and the directors being trustees for the stockholders, the contract is for that reason, void. A contract by an agent for his principal with himself or by a trustee for hia eeitique trust ia void, and the directors of a corporation, agents and trustees for the stockholders. See ex parte Bennett, 13 Beav. 339. Butts vs. Wood, 3S Barb. 1S1 2 J. Ch. 235. Perry on trusts, page 100, Sec. 123, page 3S9, Sec. 430. Again the consideration for the con struction provided for in tbe contract was so grossly extravagant as to raise the pre sumption of fraud. It was $500 000 in bonds of the city and county, $300,000 of them to be cash'ed at par,' $600,000 first mortgage bosds, $700,000 stock of R. R, Co , See page 8 of record. All lo build a railroad which the petition how3 would not cost more than $600,000. Snch a contract between individuals would be presumptive evidence of the ira bicility of the promiesor or of fraucd upon him, and the terms of such a contract made by an agent of the promissor, would be abundant'evidence of a conspiracy be tween the agent and the party he contracted with, to defraud the principal. And the petition alleges that the contract was made by the co-partners, with intent fraudulently to render the stock of the cor poration valueless and to acquire all the property of the company for the co-partners. We say, that for the reasons above given, the contract for construction was void. 2. If the contract for construction be de clared void, it follows that Caldwell and hia associates will be .required to account for all they have received under color of that contract, being credited with their ex penditures for the benefit of the corpora tion, bo far aa the tame accrued to ita bene fit. Sfe Robinson vs. Smith 3d, page 222, and caea above cited. 3. The S700.000 of stock of the R. Ii. Co., issued to Caldwell and received by him for the co-partnership, ehould be de clared void, because it was issued ."pursuant to said fraudulent contract, and to defraud the bona fide stockholders and without valid consideration. See Mechanics Bank vs. N. Y. & New Haven R. R. Co., 13th N. Y., 539. Ssme plaintiff vs. Schuvler, 7 Abb , Pr. 41, 17 N Y.502 Fauquier & Alexandria Turnpike Co., oil i;rnncn (J. it. -i'o, a mil. 5i 4. Caldwell took the land described in the petition as trustee for the Mo. R. R. R. Co. The Railroad Company having pur chased tbe land by contract and secured the payment ot the purchase money, and Smith having assigned tbe contract to Caldwell, without authority from the cor poration (his office of President giviug him no such authority, fee Hart vs. Stone, 30 Conn. 94), and it being an assignment by bimselt as .President to himel! and part ner, and Caldwell paying for it out of funds equitably belonging to the Rail Road Com pany (See record pp. 2G and 27) and be ing a director of tbe Company at the time, he took the title in trust for the corpora tion. 5. Caldwell having taken the title in trust, conveyed to his co-partner-, confed rate?, subject to tbe same trust. They are therefore, each and all, bound to re-convey such lands as they or anv of them still have and to account and to pay for all such aa they have conveyed to other parties. Bluscorne vs. lleathorn, 1 Youngs A Col yer 326, Gaskil vs. Chamber. 25 Btvan 360, 43 N. Y. 293. 1 Stockton 507. 6. The stock of the city and county in the Mo. R. R. R. Co.. having been sold to the L. A.& N. W.R. R. Co- that Company thereby became entitled to, and in equity, the owner of an aliquot thare in all the property and asset ot the Mo. River R. R. Co., whether held in trust or otherwise. The stock represents all the property and rights of the corporation whether legal or equitable. See 8th Kas. 90. 43 N. H. 520, 531, 533 And being transferable, its transfer of course passes the right of action, necessary to maintain the rights of the assignee in the property held in trust, and neither the case of Gray vs. Ulrich, 8 Kansas 112, nor dicker !vs. Bellanger, 6 Wis. 645, nor any ot. their kindred cases are against ua on this proposition. They were cases where there waa a com plete contract, between parties capable to contract, but liable to be avoided by extrin sic proof of fraud, but in this case .there was no contract whatever between the R. R. Co. and the co-partner-hip, but an agree ment by the directors of the Company with themselves which ia nothing. The action does not undertake to avoid a contract, but to enforce a trust arising out of fraud by the trustee, committed in ac quiring the property, and that such a cause of action is assignable, Bee Leading Cases in Equity, vol. 3, pages 337, Baker vs. Whiting, 3 Snmner 475 Opinion of Story, page 432, 4S3, 434, 2 Story q. jur. Sec 1050 and note at end of section. 7. The plaintiffs being stockholders in the L. A. & N. W. Co., are entitled to have the rights of that Company maintainedior their benefit. They have a clear prefftty right, aad one having a clear right to prop erty, whether legal or equitable, most bare a right of action, either at law or in equity, to maintain it and no remedy exists in this case but a euit in equity. Thatfin action by a stockholder to en force the rights of the corporation, when the corporation refuses to do so. or the cor poration ia in the control of the persons guilty of the wrong to be redressed, will lie. "jee .March va Kailroad. 43 . H. 659 Iu that cise the Eastern Railroad Com pany, in New Hampshire, had leased its railroad to the Eastern Railroad Company, a Massachusetts Company, 'for 99 years, on tho term, that the Massachusetts Com pany should complete tbe Aov Hampshire road, charging the expenses to the New Hampshire Co.. and build certain branches of its own road, and when it paid dividends to its own stockholders, it should pay to the New Hampshire Company aa rent a sum proportionally equal to the amount paid asdividenda to its own stockholders, ac cording to the coat of each of said roads, so that each company should receive the same percentage on its outlay and if it with held the femi-annual dividends to its own stockholders, it should, nevertheless pay semi-annual dividends to the New Hamp shire Company, proportioned as above pro vided, to the amount so withheld, The Massachusetts Co. completed tbe New Hampshire road and tlie branches to its own road, as contemplated by the con tract, and continued to build other boanch- ea of its own load to increase its traffic and failed to make dividends to its stockhold ers or to pay rent to the New Hampshire Co. The directors of the New Hampshire Cj., refused to call the Masiachusetts Com pany to account, and certain ol the stock holders of. tbe New Hampshire Company filed their bill, making the two R. R. com panies defendants. The plaintiff had bought their stock after' the rents were due, but the Court said that the plaintiffs had a right to their proportionate share of all profits not paid out when they acquired the stock, and ordered an accounting, 'for the purpose of paying the plaintiffs their share of the divsdends due to the New Hampshire Company. Sears et al vs Hotchkisa ct al, 25 Conn., 171. Kean vs Johnson et al, 1 Stockton. 401. In Robinson et al vs Smith et al, 3 Paige 222, the some doctrine was held, ".Chancel lor Walworth saying that ''generally where there haa been wasteor mis-application of the co-operate funds, by the officers or agents of the company, a suit to compel them to account for sui h waste or misap plication, should be in the name of the cor poration, but as this Gnat ncter permits a vtoni lo no tmrcdrrsffd mtrdy far the sale cf foam, if it appeared that the directors of tbe corporation refused to prosecute by collu sion with those who had made themselves answerable by their negligence or fraud, or if the corporation was still under the con trol of those who must be made the defend ants in the suit, the stockholders, who are the real parties in interest, would be permit ted to hie a bill in their own names, mak ing the corporation a party defendant." See also Alwood, va Merriwether. Law Rep. 5th En. cases, 464, note holds the same doctrine : sec also Soloman vs Laing, 12 Bevan;43N. II. 515, C Eng. R. W. cases. page'iiO, "J t-o4-j;tJ01man vs taston b Jing. II. W. cases, 573; 13 Barb. 312; Heath et al. vs the Erie Railway Co. et al. Sth Blatchford, 247 and casea there cited ; for prayer of bill see pige 333 ; for decision of case see page 413; Dodge va Woolsy 18 IJow. 331. Samuels va nolliday, 1 AVoodworth 402, will be relied upon as authority against us, but it is not authority for the doctrine maintained by the defendants. In that case a corporation had made a deed of trust in the nature of a mortgage to two trustees, conveying a large amount of personal property, to secure Holliday for moceya advanced and liabilities incurred, and the trustee had sold the property to Holliday. Samuels et hi, had commenced suit in Chancery, after refusal ol the corporation to commence it against Holliday, to enjoin him from disposing of the property and to declare the dted of trust and sale void. The corporation was not a party, because, though named in the bill, it had not been summoned. The bill did not show that the plain tiffs had ever paid anything for their stocr. The learned Justice then proceeds to show that "the plaintiffs are without real pecuniary interest in the matter and have acquiesced in the commission of the acts of which they now complain, and being in this situation have stirred up a serious and bitter litigation, which the real party in in terest decline, when called upon to com mence or participate in, when commenced by others, and then draws the inevitable inference that "they are not entitled to the favor of having the cause stand over in or der to compel the appearance of the corpor ation." Having thna disposed of the cae, the learned Justice proceed, to discuss the question, whether a suit by a stockholder will lie in such a case, by making the cor poration a party. The opinion he advan ces upon thia question ia really but a dic tum, for the case waa completely and final Iy disposed of before this question'was men tioned, lie discusses the question solely upon the authority of Dodge va Woolsfy, the only case cited to him by the plaintiff, (so far as appears by the rejwrted case) and comes to the conclusion, upon that author ity, that tho action will not lie, and sajs "In the case before U3 we have no attempt to transcend the powers of the corporation, Cor any breach of trust on the part of the directors, but simply a neglect to bring a suit, which one of the stockholders thinks should be brought." These remarks distinguish the cae then under consideration, broadly from the one at the bar, in which the action is founded solely en fraudulent breaches cf trust by the directors, and excess of the corporate power in the issuance of stock. The learned Justice takes the case of Dodge va WooWy to be an affirmative au thority, to tbe effect that a stockholder can bring no suit in equity to procure the en forcement of the rights of the corporation, but only to prevent the violation of them by injunction, and in speaking of that case says: "Again, the Court says that the ju risdiction at the instance of a shareholder is to apply preventive remedies by injunction, Cc " But this is clearly a mis-reading of Dodge va Woolsey; the case contains no such language, nor any intimation that the jurisdiction is confined to preventive remedies, unless the de cision that preventive remedies would be granted in such cases, is to be taken aa proving that no remedy can be had for breach of trust already perpetrated by the directors, when the corporation refuses to prosecute, which seems to ua to be a name quilcr. Again the case of Dodge vs. Woolsey, not only does not assert such a doctrine, but the opinion of the court asserts the contrary in the following language, com mencing on p. 312. near the bottom : "But farther, it is cot only illegal for a corporation to apply ita capital to objects not contemplated by ita charter, but also to apply its profits, and therefore a share holder may maintain a bill in equity against the directors and compel the com pany to refnnd any of the profits thus im properly applied." The learned justice in closing his opinion says : "If a stockholder is aggrieved by the re fusal of the board of directors to accept his views, hTs remedy ia to unite with other stockholders and change the directors btt if irreparable mischief to his interest may ense in the meantime, equity will administer preventive justice, until such a time as the will of the body of stockhold ers can be ascertained." But that remedy could not well be ap plied to this case, aa it ia hardly practica ble to change the directors, when such di rectors constitute a majority of the stock holders and all are united in the same in terest and the same purpose to defraud the minority. In making that dictum the learned Jus tice seems to hare overlooked the doctrine laid down by Justice Story (1st Story, Eq. Sec 1S6) that courts of equity "have very wisely never laid down, as a general prop osition, what shall constitute fraud, or any general rule beyond which they will not go upon the ground of fraud, lest other meins of avoiding the equity of the courts should be found out." Thia case is a moat forcible illustration cf the wisdom of the rule laid down by Story. Thia opinion of Justice Miller, then, be ing, so far as it can be claimed to affect this case, but a dictum at Si i Prim, and not supported by, but opposed to the author ity, upon which it purports to be based, and being, when applied to a case like this, utterly subversive of iustice. is. it seems to Ins, of little weight in companion with the case we have cited, holding the opposiie doctrine. We think we have shown that the defen dants were liable to account to the M itwjuri River Company, for the property in their hands. That it waa the duty, to it. stockholders, of that company to compel that account, but they were prevented by tho defendants who controlled that com pany. 'lhat when the L. A. & N. W. Co. became the owners of stock in the before mentioned company, it became the right of that com pany, and its duty to its stockholders, to enforce that accoutring, but the defendants having control of that company, prevented snch action. S0TE OF AKGCMEST. Tbe defendants confess by their demurrer that they bare entered in;o a combination to take the property of this corporation at the expense of the stockholder ; arc guilty of fraud; are trustees, or buld the trust property of the corporation in their names. and appropriated it to their uc ; that by their fraudulent acta the cor; orations are in their band, and can only act wii-n thry are willing; and that they will not let either corporation come into court to assert the just demands of its stock holders. In short, they have swallowed the corporations, bv Letting into power through vo.es of spurious stock, for which not one cent was paid. That they have formed themselves into a syndicate, tied the bands of the minority of the itcckholl em, taken the principal, and modest'y claia to be the mouthpiece of (his enf.cb led minority, both in the election of direc tors and division of profit, and when thn stripped and ruined the ccituiipic trust can find no redress at the hands of tbe tm.-ters, and 'when they come into court they are told "ire are the Ujcl rrpres-ntatiies of .he corporations, and you must be heard in court by ua tbe legal representative, "tho carta qui trust cannot speak ip court." Ibis cannot be law. In Jackson vs. Ludeling, 21 Wallace, pr 616, 621 and 625 Justice Strong says : "The managers and officers of a Company, where capital is contributed in shares, are, in a very legitimate tense, trustees ; alike for its stockholders and iu creditors," etc "They, accordingly, have no right to enter into or participate in any combination, the object of which is to divest the Company of ita property or obtain it for themselves at a sacrifice ; they have no rightjo seek their own profit at the expecfeof the Company, its ttoelholders or even its cieditois." The principle of law on which the plain tiffs rely to cill the defendants to attount, is not new in courts of tqniiy, and the re form procedure, under the cede, is turely -no lei-s remedial than the ancient equity power, lomerovon uemedie, sees. J, to, .o and S3 Equity haa decsctd an account at tho suit of an heir at law against the executor, also at tho suit of a distributee of an es tate against the elector and tho surviving partner of the testator. Bowsher vs. Watkin?, 1 Ruell & My!e, page 277. A creditor may maintain a bill sgaint the executor and other persons who are in partnership with the executor, and obtain an accounting. Gredgeva. Traill, 1 Russell A Mylo page 231, note. A creditor of an estate of a deceaped per son, may maintain an action to collect his debt from a debtor of the estate, in casea of collusion between the debtor and per sonal representative of the estate, the in solvency of the administrator, in au indebt ed firm or refusal to sue. Fisher vs. Hubble, 7 Lansing, N. Y., 4nl. The defendants in this suit, who are trus tees and legal representative, should havn long since brought suit. They have a legit duty to perform, and like executors and administrstors. are trustees, and if they en ter into collusion with the debtors of the corporation, or become partners with other? who have the property of the corporation, or form syndicates to eat out the sub-tance of the stockholders, thry are liable to b-t sued, and the court should feel as much bound to sustain a bill again-t such per sons aa it has in favor of heirs, residuary legatees and creditors against defaulting executors, administrators and collusive, debtors who are being shelflied under tho ningpftheltgnl rtp'oentatitex. Some of these defendants sre not direc tors or officers of the corporation, but they have united with thoe who were trust e, and have received corporate and ln;t pro perty, knowing it waa being diverted, and become parties to the breach of trust. In Wileon vs. Moare, 1 Myle A Keen, th-" Court in holding a pen-on liable, who had any part in a breach of trust, al pp. 127 and 146, says : "there ia no primory lia bility in respect to breach of trust, all p-ir-ties to a breach of trust being equally lia ble." That case also holds that perrons who act under power of attorney from trust es, and knowing that the trust estate is beirg wasted, shall account to the estate, teem ing to treat any participation in the wast ing of a trust estate aa an offense in equity, which that Court will surely punish ami cruse all the parties who have ic any man ner participated to account and male good that which haa been wrongfully applied or diverted. 2 The defendants may insist that there is no privity of contract between the plain tiffs and some of the defendants. This can be no answer in a Court of Equity ; tho same has been said where a creditor of de ceased estate haa sued the debtor of the de ceased estate; the Court baa said that col lusion or refusal of the legl representa tive to sue, forma the exception to the gen eral rule, and that privity of contract is not necessary to maintin the action. The defendants insist that the accounting will be too difficult and complicated for a court or referee to undertake, so as to as certain what interest the plaintiffs have in the property diverted from the trut estate. Here it will require a clear head and some labor, but courage and honesty are only wanting to make up thia account. The defendants know, and can tell, how much it cost to build the road from Leav enworth to Kansas City and to pay for the land; thia the road owes. They aro chargable and know, 1st : how much money they received, before they commenced, from the bonds of the County and City of Leavenworth, and from subfcriptions. They know they received 93,000 acres of land which in equity belongs to that road ; 2d, how much of the land ther have -ohl, and at what price, and what remains un sold in their hands ; 3d, how much they received from the sale of $500,000 of First Mortgage Bonds : 4th, how much they re ceived on the sale of the $700,000 of stock, if anything, if not sold, it should be can celed ; 5th, how much the roatl rented fcr in excess of incidental expense'. These sums added will yield, say Two Millions of Dollars. Deduct the cost and expense of constructing the road, say one half million, and there ia on hand belong ing to the stockholders of the Mo. It. K. R., ooe and one-half millions which should be declared a dividend, unlnea need ed to pay debts. The demurrer admits that the only stock in the Mo. R. R. R. is held in tru-t for the 13 persons who built the L, A. Jt X. W. R. R., or the corporation, and it ia imma terial which, as it ia a trust fund, and the legal representatives in collusion against the eatuiijue trust, are relu-ingto sue. The foregoing accounting brings in to th L, A. & X W R. R. Company one and one-half millions ol dollars, aa the tcck as signed by the City and County of Leaven worth carried with it all dividends not de clared and paid prior to the trant-fer. Here again it may or may not be neces sary for an accounting to be had. If the capital and assets on hand, of this road, are sufficient to meet all liabilities, then th one and one-half millions are surplus, and should be divided among the thirteen "bare holders who built the road. Tbe plaintiff- share being three and one half thirteenths ot the capital stock. Should this not be the exact basis on which the accounting should be bail, the defendant, who have been so sharp as to take everything belonging to two railroad, and then pocket tbe corporations, will point out to the Master a better and more equitable rule. The respective interest of every party to this bill can be ascertained. and it is a rule of Equity, that, "that hich can be made certain, is certain." And that the plaintiffs, being stockhold ers in the last name Co, have a right to in sist on such accountisg and having no other remedy, have a clear right to a suit in ennhv to enforce it. and do submit tb . aneation to the Court. Z?2Z GREEN & FOSTERaoMOM.Tb.ti. COBB & COOK MracHEajisja A t...T. fnr PI.: ST. LOUIS. MO r i 'J 1 1 ) &: gsaggxi.