tors, or even by the majority of the stockholders, of the corporate property which is essential to the continuance of the business of the corporation, unless such sale is made with a view to a dissolution of the corporation or the payment of the corporate debts.1

The rules that the general right of control and power of disposing of the corporate property is vested in the chosen officers and managers, and that the majority rule should be respected, have no application to such a case. The property can only be disposed of in due course of business, to effect the legitimate objects of the corporation, and not for any ulterior purpose, to allow which would be a breach of trust as to the stockholders and a fraud upon creditors.2

The court will not leave a shareholder at the mercy of the agents in such case, merely because the members may possibly assemble at a subsequent date and sanction the threatened wrong. Besides, it is the right and privilege of each member that the majority shall be consulted in advance, and an agent cannot assume the exercise of powers not conferred upon him in the first instance. The suing shareholder should not be relegated to his primary remedy for inter se wrongs, and there should be no postponement or delay where prejudice would result to the right of the plaintiff.

1 Smith v. N. Y. Consol. Stage Co., 18 Abb. Pr. 419, 435; Robbins v. Clay, 33 Me. 132; Sheldon H. B. Co. v. Eickmeyer H. B. Co., 56 How. Pr. 78; Barclay v. Quicksilver Min. Co., 9 Abb. Pr. N. S. 284; Myers v. Scott, 2 N. Y. S. 753; 50 Hun, 603; Copeland v. Citizens' Gas-Light Co., 61 Barb. 60; Conroy v. Port Henry I. Co., 12 Barb. 27; Adriance v. Rome, 52 Barb. 399; Brady v. Mayor, 16 How. Pr. 432; Middlesex R. Co. v. Boston, etc., R. Co., 115 Mass. 347; Dana v. B'k of U. S., 5 Watts & S. 247; Un. B'k v. Ellicott, 6 Gill. & J. (Md.) 363; Kean v. Johnson, 9 N. J. Eq. 401.

2 Boston & P. R. Corp. v. N. Y. & N. E. R. R. Co., 13 R. I. 260; Balliett v. Brown, 103 Pa. St. 546; Gray v. N. Y. & V. Steamship Co., 5 Thomp., &c. (N. Y.) 224. Compare Hutchinson v. Green, 91 Mo. 367; 1 S. W. 853.

8 Tuscaloosa Mfg. Co. v. Cox, 68 Ala. 71; Mozley v. Alston, 1 Phil. 800; Baker v. Backus's Adm., 32 Ill. 101-108; Gray v. Lewis, L. R. 8 Ch. 1050;

A refusal in view of possible subsequent ratification by the corporation is only proper in occasional instances of wrongful acts already done. And the reason for delay, on the ground that the stockholders should have an opportunity to act in the matter, fails when it is shown that, from any cause, they are either unable or unwilling to act. There is, in such case, not only no reason for delay, but a very strong one for giving immediate relief. It frequently happens that the wrongful acts of the majority are the very matters complained of, or that the wrong doers are in collusion. with the majority with the object of preventing action, or that the derelict agents have constituted themselves a majority by obtaining control of the shares.1

§ 627. No delay where remedy would be thereby lost.— If it appear that delay until a shareholders' meeting could be called would enable the consummation of a threatened injury or render the suit when brought by authority from such meeting, on account of an act already done, unavailing, the court will grant whatever temporary relief the exigencies demand, and having acquired jurisdiction for that purpose, will proceed to a full adjudication of all the matters involved in the proceeding. For instance, the managing agents might refuse to defend suits against the corporation, and no more dangerous dereliction of duty than this can be

Russell v. Wakefield W. W. Co., Law R. 20 Eq. 474; McMurray v. Northern Ry Co., 22 Grant (U. S.), Ch. 476; Samuel v. Holladay; 1 Woolw. (U. S. C. Ct.) 214; Hawes v. Oakland, 104 U. S. 450; Karnes v. Rochester, etc., R. R. Co., 4 Abb. Pr. (N. S.) 111, 112.

1 Atwool v. Merryweather, L. R. 5 Eq. 464, note, 468; Russell v. Wakefield W. W. Co., L. R. 20 Eq. 482; Cannon v. Trask, L. R. 20 Eq. 669; Menier v. Hooper's Tel. Wks., L. R. 9 Ch. 350; Davidson v. Grange (U. C.), Ch. 377; Neall v. Hill, 16 Cal. 151; Wright v. Oroville Min. Co., 40 Cal. 20; Taylor v. Miami Exp. Co., 5 Ohio St. 162; Sears v. Hotchkins, 25 Conn. 171; Brewer v. Boston Theatre Co., 104 Mass. 378; Neal v. Hill, 16 Cal. 145.

imagined. In this way, the soundest institution may be rendered insolvent, and the property interests of the shareholders be totally destroyed.

Delays for the purpose of calling and holding a shareholders' meeting, would, in most cases, subject a corporation to judgment by default, and for this reason alone the court would grant immediate relief.1

It may, in all cases, be safely assumed that whatever would be an irreparable injury to the corporation would be such to the shareholders who compose it.2

§ 628. The right to defend for the corporation.—The same equity which allows suit to be brought by the stockholder on behalf of the corporation allows him, under like circumstances, to come in and make defence. In a late important case the rule by which a stockholder's right to defend in behalf of a corporation was considered and applied in an action brought by a plaintiff against a corporation of which he claimed to be the president. He had caused the summons upon it to be served upon himself as such president and upon another person as its secretary. After the corporation was in default for want of an answer, stock

1 Bronson v. La Crosse R. R. Co., 2 Wall. 302; Dodge v. Woolsey, 18 How. 331; City of Wheeling v. Mayor, 1 Hughes, 90, 95. A stockholder of the corporation is entitled to intervene in a foreclosure suit when it is shown that the trustee is not acting in good faith, and that the litigation is being conducted on a false and fraudulent basis. Henry v. Traveler's Ins. Co. (Colo ), 26 P. 318.

2 Bloxam v. Metrop. Ry. Co., L. R. 3 Ch. 337; Manderson v. Commercial B'k, 28 Pa. St. 379; Dodge v. Woolsey, 18 How. 331; Fraser v. Whalley, 2 H. & M. 10; Lyde v. Eastern Bengal Ry. Co., 36 Beav. 10; Pickering v. Stephenson, L. R. 14 Eq. 322; Leo v. Un. Pac. Ry. Co., 17 Fed. Rep. 273. Stockholders have standing in court on a proper complaint, to prevent the holders of a majority of the stock from infringing the law of a state by holding such stock in the name of a rival company, and to prevent such rival company from voting it. M. & C. R. R. Co. v. Woods (Ala.), 7 L. Rep. An. 605. See also, Millbank v. N. Y. L. E. & W. R. Co., 64 How. Pr. 20; Nathan v. Tompkins, 82 Ala. 437; 2 So. 747; Cent. R. R. Co. v. Collins, 40 Ga. 582; Hinckley v. Gildersleeve, 19 Grant Ch. 212; Langson v. Branch, 37 Fed. Rep. 449; Chambers v. Falkner, 65 Ala. 448; Hafer v. N. Y. L. E. & W. R. R. Co., 19 Abb. N. C. 456.

holders who had also been made defendants in the action, but who had not been served until long after the corporation had defaulted, made application to defend in its behalf. Their proposed answer disclosed a meritorious defence on the part of the corporation which had defaulted through the inexcusable neglect of its officers. The court considered the case presented by these facts to clearly entitle the stockholder to make the defence for the corporation.1

§ 629. When election will be set aside. An action to set aside an election of officers of a corporation because not made in conformity with law is within the jurisdiction of a court of equity, though such jurisdiction has not been conferred by statute. The corporation, as the party beneficially interested, should bring the action, when not in the hands of the usurping agents; and when that is the case members may sue in its name, making the corporation a party defendant as in other like cases. Where, at an election of directors, votes wrongfully rejected would not have given the person for whom such votes were tendered a majority of the votes offered, the election will not be set aside, and a new one ordered. But where the persons for whom the votes wrongfully rejected were tendered would with such votes have had the votes of a majority of all the shares of the capital stock of the company, the court will set aside the election certified and order the admission of those persons who would have been elected if such votes had been received.1

1 Manill v. Little Falls Mfg. Co. (Minn.), 48 N. W. 1124 (June, 1891), citing authorities.

2 Wright v. Cent. Cal. W. Co., 8 P. 70, holding also that an action to set aside an election may be instituted by a stockholder, although he has not had the stock standing in his name long enough to entitle him to vote at such election.

& Chollar Min. Co. v. Wilson, 66 Cal. 674; 5 P. 670.

4 In re Cape May & D. B. N. Co., 16 Atl. Rep. (N. J.) 191; In re Steamboat

All the shareholders may, if they choose, join a plaintiff; but a single shareholder is entitled to sue for the protection of his interest. He should state that he sues on behalf of himself and all others similarly interested. But it has been held that this allegation is not indispensable, as the benefits of a suit to protect corporate interests or to enforce corporate rights must necessarily inure equally to the benefit of all the shareholders.3

§ 630. Parties defendant.-The corporation is a necessary party defendant, as are any officers or agents or other shareholders who have participated in the wrongs complained of." In some cases the corporation has

Co., 44 N. J. L. 529, 536. See also, Ex parte Desdoity, 1 Wend. 98; In re L. I. R. R. Co., 19 Wend. 37; Downing v. Potts, 3 Zab. 66.

1 Seaton v. Grant, L. R. 2 Ch. 462; Dodge v. Woolsey, 18 How. 331; Beman v. Hufford, 1 Sim. N. S. 564; Zabriskie v. Cleveland, etc., R. R. Co., 23 How. 395; Samuel v. Holladay, 1 Woolw. 400; Kean v. Johnson, 1 Stockt. 401 ; Elkins v. Camden, etc., R. R. Co., 36 N. J. Eq. 514; Rogers v. Lafayette Agr. Wks., 52 Ind. 304; Armstrong v. Church, 1 Grant (U. S.), 556.

2 Zabriskie v. Cleveland, etc., R. R. Co., 23 How. 395; Mozley v. Alston, 1 Phil. 798; Whitney v. Mayo, 15 Ill. 251; Robinson v. Smith, 3 Paige, 22; White v. Caermathen, etc., Ry. Co., 1 H. & M. 786; Smith v. Swormstedt, 16 How. 302; March v. Eastern R. R. Co., 40 N. H. 548; Peabody v. Flint, 6 Allen, 56; Clinch v. Financial Co., L. R. 4 Ch. 117. See Edwards v. Shrewsbury, etc., Ry. Co., 2 De G. & Sm. 537; Bailey v. Birkenhead, etc., Ry. Co., 12 Beav. 433.

3 Hoole v. Gt. West. Ry. Co., L. R. 3 Ch. 272; Russell v. Wakefield W. W. Co., L. R. 20 Eq. 474, 481; Simpson v. Westminster Hotel Co., 8 H. L. C. 712. + Greaves v. Gouge, 69 N. Y. 154; Cunningham v. Pell, 5 Paige, 613; Davenport v. Dows, 18 Wall. 626; Samuel v. Holladay, 1 Woolv. 414; Stromeyer v. Combs, 2 N. Y. S. 232; 18 N. J. L. 154; Shawhan v. Zim, 79 Ky. 300; Hersey v. Veazie, 24 Me. 9; Cicotte v. Anciaux, 53 Mich. 228; 18 N. 793; Beach v. Cooper, 72 Cal. 99; 13 P. 161; Charleston Ins. Co. v. Sebring, 5 Rich. Eq. 342; Byers v. Rollins, 13 Colo. 22; 21 P. 894; Black v. Huggins, 2 Tenn. Ch. 780; Camp v. Taylor (N. J.), 19 A. 968; Robinson v. Smith, 3 Paige, 232. Compare Smith v. Hurd, 12 Metc. (Mass.) 371; Wilkins v. Thorn, 60 Md. 253. The rule is the same in the federal courts. Porter v. Sabin, 36 F. 475; Meyer v. D. T. & Ft. W. R. Co., 38 F. 197.

5 Taylor v. Miami Exp. Co., 5 Ohio, 162; Preston v. Grand Collier Dock Co., 11 Sim. 327; Slatterly v. St. L. & N. O. Transp. Co., 91 Mo. 217; 4 S. W. 79; Burt v. British, etc., Ass'n, 4 De G. & J. 158. See Bailey's App., 96 Pa. St. 252; Becher v. Wells Flouring Mill Co., 1 McCreary, 62. It is not sufficient reason