self. Having thus taken the lead and principal management of this enterprise upon himself, he has succeeded in securing the title to the property in dispute in his own name; which virtually gives him control of the other mines not conveyed to him, as he has succeeded in securing those which control the water rights.

I claim that, under the facts in this case, Ruble is estopped in equity from denying that he is a stockholder in the plaintiff: Thompson on Liability of Stockholders, secs. 105, 124, 162, 165, 166; 5 Otto, 667; Dong v. Naper, Supreme Court of Ill., 8 Reporter, 522.

And while I concede that in equity Ruble may have been entitled to a lien upon the property in dispute, to secure him in whatever amount he may have advanced or paid on the property in excess of his proportion, and that while the court might and should have secured said lien by a proper decree, I am unable to assent to the proposition that he may "change his mind, either through good or bad motives," and wholly retire from the enterprise and hold the property in his sole right, unless his associates shall refund to him the whole. amount advanced by him to pay for said property.

In my opinion the bill ought to be retained and the decree of the circuit court modified in accordance with the views herein expressed.

STEWART ET AL. V. MAHONEY MINING CO. ET AL.

(54 California, 149. Supreme Court, 1880.)

Bona fide stockholder-Void election. At a meeting of stockholders for the election of trustees, 1,000 shares were represented by a person to whom the stock had been issued as trustee, without the consent or knowledge of the owners. Without him a majority of the stock was not represented at the meeting. Held, that he was not a bona fide stockholder within the meaning of § 312, Code of Civil Procedure, and that the election was void.

Special proceedings. Under § 76, Code of Civil Procedure, courts are always open to hear special proceedings of a civil nature.

Appeal from a judgment annulling an election of directors of a corporation, in the Nineteenth District Court, City and County of San Francisco.

WHEELER, J.

This was a proceeding under § 315, Code of Civil Procedure, to annul an election of directors of the corporation defendant. The other facts are stated in the opinion.

G. F. & W. H. SHARP, for appellants.

At the time of the election, Bush had the legal title to the stock, and the stockholders were bound to recognize his right to represent and vote said stock at the election: Weaver v. Bardon, 49 N. Y. 290.

MCALLISTER & BERGIN, for respondents.

In order to vote at such election the stockholder must be bona fide: Code Civ. Proc. § 312; Calaveras Co. v. Brockway, 30 Cal. 338.

Department No 2, MYRICK, J.

The question involved in this case is as to the validity of an election of trustees of the defendant, the Mahoney Mining Company, a corporation. The stock of the corporation is divided into 12,000 shares, of which 6,140 were voted at the

meeting held May 1, 1877. Of these 6,140 shares, 1,000 stood in the name of "H. P. Bush, trustee," and were voted by him. Bush had no interest in the 1,000 shares, nor was he the owner of any of the stock of the corporation. The 1,000 shares were owned as follows: Bell, 400 shares; Sharon, 400; Flood & O'Brien, 200; neither of whom authorized Bush to represent them, or, in fact, knew of the meeting. The stock had been issued in the name of Bush, trustee, by the secretary, without authority, and without the knowledge of the owners, for reasons not appearing in the record. On the trial, the secretary when asked what authority he had for issuing the stock to Bush, replied: "There was no authority necessary at all. If you knew the rules of business you would not ask the question. Mr. Bush was my private secretary, and all stocks of those that we call manipulators are never issued in their names; they generally have it issued to a man in the office, and for that reason all such stocks were issued in the name of Hyman P. Bush."

Section 312, Code of Civil Procedure, requires that every person voting at a meeting, in person or by proxy, or by representative, must be a member thereof, or a bona fide stockholder, having stock in his own name on the stock books.

Bush was not the proxy or representative of either of the owners of the stock, nor was he a member of the corporation, nor was he a bona fide stockholder; therefore, he had no legal right to vote the stock. Without the stock assumed to be represented by him, but 5,140 shares were represented at the meeting, and the proceedings were not in compliance with the

statute.

An objection is made by the appellant that the court below had no jurisdiction to hear the case, because the order to show cause was made returnable June 15, 1877, during vacation, the court having adjourned May 2, 1877, until July 9, 1877. Section 76, Code of Civil Procedure, is a complete answer to the objection. By that section the court was always open to hear special proceedings of a civil nature, of which this is

one.

The judgment of the court below is affirmed.

THORNTON, P. J., and SHARPSTEIN, J., concurred.

BASSETT V. THE MONTE CHRISTO G. & S. M. Co. of NEVADA ET AL.

(15 Nevada, 293. Supreme Court, 1880.)

Power of directors beyond limits of State. The directors of a corporation, unless forbidden by its charter, or the general laws of the State from which it derives its existence, may perform all except strictly corporate acts outside of the limits of such State, as well as within them. The directors of a Pennsylvania corporation at a meeting in the city of New York may authorize the president and secretary to make a trust deed and issue bonds.

Duplicate deed of trust-Ratification unnecessary. A deed of trust having been executed by authority of the directors of a corporation, and lost in transmission, a duplicate was executed. Held, that the duplicate was valid, and no ratification necessary.

Trust deed by corporation with director as trustee. In a suit against a corporation to foreclose a trust deed, the stockholders can not object to the validity of the deed, because the trustee therein named is also a director in the corporation.

Statute of limitations-Record of trust deed-Third parties. A suit to foreclose a trust deed was begun more than four years (the period of limitation) after the date of the deed but less than four years after the maturity of the bonds which it was given to secure. Held, that the action was not barred by the statute, and that the record of the deed secured the mortgagee against a subsequent incumbrancer to the same extent as against the mortgagor.

Practice. An objection not made in the court below will not be considered.

Bonds issued to directors-Stranger can not complain. Bonds regular upon their face, issued by a corporation, but really for the benefit of the directors who authorized their issuance, are not void, but only voidable at the election of the corporation or its stockholders, and if they do not complain, a stranger, a subsequent creditor, can not.

Appeal from the District Court of White Pine County, Sixth Judicial District.

This was an action by Robert N. Bassett to foreclose a trust deed given by The Monte Christo Gold and Silver Mining Company of Nevada to secure bonds issued by the company. J. E. Marchand being a judgment creditor of the corporation, was made a party defendant. The company suffered a default, and both Bassett and Marchand appealed from the decree entered by the court below.

HILLHOUSE & DAVENPORT, for Bassett.

D. E. BAILY, for Marchand.

By the court, BEATTY, C. J.

It appears, from the statement and record of this case, that the defendant, The Monte Christo Gold and Silver Mining Company, of Nevada, is a corporation chartered by special act of the legislature of Pennsylvania and authorized thereby to hold meetings and transact business at any place in the United States; that in February, 1869, the management of its affairs was vested in a board of thirteen directors, seven of whom met in the city of New York on the third of that month and passed a resolution authorizing the issuance of bonds of the company not exceeding fifty thousand dollars in amount and the conveyance of its real property, situated in White Pine county, in this State, in trust to secure the payment of the same.

In pursuance of this resolution said property was conveyed to plaintiff as trustee and bonds issued and disposed of. The first deed of trust having been lost in course of transmission to this State, a duplicate was executed June 29, 1869, and duly recorded in White Pine county. In the interval between the execution of these two deeds, a meeting of the stockholders of the company was held at its office, in the city of New York, at which a resolution was adopted, reducing the number of its directors from thirteen to five. At a subsequent meeting of four directors of the company at New Haven, Connecticut, the action of the president and secretary, in executing the duplicate deed of trust, was ported and ratified.

re

The object for which the bonds of the company were issued was to take up its floating indebtedness, much the larger portion of which was due to the plaintiff and three other persons who were, at the time of the transaction, directors of the company, and constituted a majority of the members present at the meeting in February, when the bonds and mortgage were authorized, and at the subsequent meeting, at which the action of the president and secretary was ratified. Out of the fifty thousand dollars of bonds