Mowrey vs. Ind. and Cin. R. R. Co. ground that the averments touching the commissions, &c., are defective. These we must regard as mere surplusage The demurrers are overruled. For a lucid discussion of what are conditions dependent and independent, see 2 Parsons on Contracts, 529, note r. That it is necessary in pleading quantum meruit and quantum valebat counts, to aver what services or materials were reasonably worth, see 1 Chitty on Pleading, 34.-[Reporter. . ALBERT L. MOWREY vs. THE INDIANAPOLIS AND CINCINNATI RAILROAD COMPANY AND HENRY C. LORD. CIRCUIT COURT.-DISTRICT OF INDIANA. JUNE TERM, 1866. IN EQUITY. 1. TEMPORARY INJUNCTION-NOTICE.-The national courts can not order temporary injunctions, except on reasonable notice to the adverse party or his attorney. 2. CORPORATION-WHEN BOUND BY ACTS OF MAJORITY.-It is a general rule, that the acts of a majority of a body politic bind the whole corporation, when confined to its ordinary transactions, and consistent with the original objects of its formation. 3. CHANGES IN CHARTER.-When, at the time of subscribing stock in a corporation, there are existing laws by which the charter of the body politic may be fundamentally changed, such subscription must be presumed to have been made with a view to such laws, and to changes which may possibly be made conformably to them. And in such case a majority of the stockholders may adopt such changes against the will of a minority. 4. WHEN LEISLATURE CANNOT ALTER CHARTER.-Under the provisions of the National Constitution, prohibiting the states from making any law impairing the obligation of contracts, and in cases not falling within the Mowrey vs. Ind. and Cin. R. R. Co. foregoing rules, no fundamental change, even though authorized by subsequent legislation, can be made in the charter of a private pecuniary corporation without the consent of all the stockholders, unless the legislature has provided otherwise in the charter. 5. DIRECTOR-WHEN ESTOPPED BY NOT OBJECTING-If a member of a Board of Directors of a corporation be present at the adoption of a resolution and aware of what is being done, and makes no opposition to its adoption, he must be presumed to have assented to it. But if such proceeding be merely preliminary to a decision by a subsequent vote of the stockholders on the consolidation of the corporation with another corporation, which can only be ultimately decided by the vote of all the stockholders, and not of the board of directors, such consent so given by a member of the board of directors, who is also a stockholder, does not estop him from afterwards objecting to the consolidation. 6. CONSOLIDATION OF RAILROAD COMPANIES-EVERY STOCKHOLDER MUST CONSENT.-To effect a consolidation of railroad companies subsisting under special charters not providing therefor, the consent of every stockholder must be given; and any one dissenting stockholder is entitled to an injunction against such consolidation. 7. JURISDICTION.-In a suit against a corporation in the United States Circuit Court for the state, by a citizen of another state, service of process within the state upon a joint defendant, a citizen of a third state, gives the court jurisdiction over him. Bartley & Burnett and McDonald & Roach, for complain ant. G. E. Pugh, and Hendricks, Hord & Hendricks, for defendants. MCDONALD, J.-This is a proceeding in equity for an injunction. The bill was filed on the 28th of May, 1866. On the same day, the complainant, without notice to the defendants, and in their absence, moved for a temporary injunction to operate till the motion could be fully heard on due notice. on a day to be fixed by the court. As the bill stated facts indicating a pressing emergency, I then ordered that the defendants should be enjoined as prayed, till, on due notice to them, the motion could be fully heard on the fifth day of June, 1866. On the latter day, all parties appeared by counsel. The defendants then moved for a dissolution of the injunction. already granted; and, at the same time, the complainant moved Mowrey vs. Ind. and Cin. R. R. Co. for a temporary injunction till the final hearing, or till the further order of the court. The injunction ordered on the 28th of May was decreed without much consideration on my part. I followed a practice which had long prevailed in the courts of the state of Indiana. But, on further reflection, I think my order for a temporary injunction was premature. Equity would seem to demand that, in cases of emergency, where irreparable injury would follow unless an immediate injunction were ordered, the national courts should have power to grant temporary injunctions without notice of the application for them to the party enjoined. But the act of Congress of March 2, 1793, forbids that any writ of injunction shall "be granted in any case without reasonable previous notice to the adverse party, or his attorney, of the time and place of moving for the same. In view of this act, as well as of the 55th rule in equity of the Supreme Court, it should seem that no special injunction can be granted by this court but on due notice. And in the case of the State of New York vs. the State of Connecticut, 4 Dallas, 1, the Supreme Court has decided that an injunction can neither be granted by the United States courts, nor any judge thereof, without due notice to the adverse party or his attorney. I, therefore, dissolve the injunction ordered on the 28th of May. We proceed to consider the motion now made by the complainant for a temporary injunction. By the bill, it appears that Albert L. Mowrey, the complainant, is the owner of three hundred and thirty-one thousand five hundred and fifty dollars in the shares of the capital stock of the Indianapolis and Cincinnati Railroad Company; and that the defendant, Lord, is the president of the company. The corporation exists under a special charter from the Indi 11 U. S. Statutes at Large 335. Mowrey vs. Ind. and Cin. R. R. Co. ana Legislature, granted before the adoption of the constitution of 1851. The bill alleges that a negotiation has lately been set on foot to consolidate said company with the Lafayette and Indianapolis Railroad Company. To this consolidation it appears that the latter company has already consented. And it further appears that the Board of Directors of the Indianapolis and Cincinnati Railroad Company have called a meeting of their stockholders to obtain their consent to the consolidation. The bill charges that, on the 10th of May last, certain articles of consolidation were agreed to and signed by II. C. Lord, T. A. Morris, and W. Wright, a committee on the part of the Indianapolis and Cincinnati Railroad Company, and by W. F. Reynolds, a committee on the part of The Lafayette and Indianapolis Railroad Company. A copy of these articles is exhibited; and they purport to be the work of the boards of directors of the two companies, "by and with the assent of their respective stockholders." Among other things, these articles provide for the issuance by the consolidated company of bonds to the amount of two million eight hundred thousand dollars, of which two millions and a half are to be delivered to said Reynolds in trust, first, to pay all the expenses of such trust; second, to pay all the legal liabilities of the Lafayette and Indianapolis Railroad Company for their stock; third, to pay such stockholders of the Indianapolis and Cincinnati Railroad Company as desire to exchange their stock for these bonds. The articles provide that, after these payments, the residue of the bonds shall be appropriated in various ways unimportant to the present decision to be stated. The bill also charges that in 1865 a corporation was organized to construct a railroad from Indianapolis to the Indiana state line in the direction of Danville, Illinois, by the name of The Cincinnati, Indianapolis, and Danville Railroad Company; that, at the instance of the defendant Lord, the complainant subscribed two hundred thousand dollars to Mowrey vs. Ind. and Cin. R. R. Co. the capital stock of that company, and other persons subscribed thereto one million eight hundred thousand dollars; that Lord, and the directors of the Indianapolis and Cincinnati Railroad Company, and the directors of the Lafayette and Indianapolis Railroad Company, are attempting to effect the said consolidation, with the fraudulent design to break down the Cincinnati, Indianapolis, and Danville Railroad Company, and render the complainant's stock therein worthless; that by issuing said bonds, the defendants intend to buy up therewith all the stock so, as aforesaid, subscribed to the road last aforesaid, except the two hundred thousand dollars subscribed by the complainant; and that with a view to that object, the said Lord has already, as President of the Indianapolis and Cincinnati Railroad Company, actually bargained for a considerable portion of the stock of the Cincinnati, Indianapolis, and Danville Railroad Company, agreeing to pay therefor said bonds when they shall be issued. To all these doings the complainant objects as frauds on his rights; and he especially objects to said consolidation, insisting that the same can not be legally effected without his consent. I lay no stress on the averments in the bill touching the Cincinnati, Indianapolis, and Danville Railroad Company. That company is not a party to this suit; and if it were, I think the matters relating to it and its stock are not proper subjects of consideration in a bill whose principal object, evidently, is to enjoin the consolidation of two other railroads. Indeed, I suspect that to unite all these maters in one bill might make it multifarious. Nor do I deem material any inquiry into the policy of the proposed consolidation. Whether such a consolidation would be beneficial or injurious to the stockholders in general, or would favorably or unfavorably affect the complainant's stock in particular, are matters to be considered and determined by them alone. The only question for the court is a question of power. Have these corporations the power to consolidate |