a part of and a connection between the ground floor of the building on lot No. 4 and his Carver street property, designed as a store or market, its exact use depending upon future tenants. The plaintiffs, upon ascertaining this, gave notice that they should insist on a compliance with the restrictions; and, this notice being disregarded, brought their bill, alleging that the defendant is about to erect on lot No 4 a building which is not a necessary outbuilding, and asking that he may be perpetually enjoined from placing on the rear of lots No. 4 or No. 5 any building except necessary outbuildings. The master finds that the proposed structure is a reasonably necessary outbuilding, if, in construing the fourth restriction, the facts that the operation of the fifth restriction has ceased, and that the neighborhood is now used for general business purposes, are to be considered, unless the defendant's intention to use it in part as a connection between the Park square and Carver street buildings shows that it can be in no sense an "outbuilding." The plaintiffs except to this part of the master's report, and also to his findings as to structures upon the rear of other lots. The master finds that the proposed structure would cause no appreciable diminution of light or air, nor any perceptible damage to the plaintiffs' estate, beyond the possible technical damage which the law may assume; and that the structures on the rear portions of lot No. 6 and No. 7, which lie between the premises of the parties, are of more considerable importance, as affecting the plaintiffs' premises, than the proposed structure would be.

Whether the right to equitable relief is affected by acquiescence depends upon the circumstances of each case. Where such a defense is claimed, the facts relating to it become material, and may be inquired into. The exception to the finding of the master relative to structures upon the other lots must therefore be overruled. Roper v. Williams, 1 Turn. & R. 18; Peek v. Matthews, L. R. 3 Eq. 515; Ware v. Smith, 155 Mass. ——, 30 N. E. Rep. 609. We assume that when restrictions inserted in the deed of a particular lot are part of a general scheme for the benefit and improvement of all the lands included in a larger tract, a grantee of any part of the land may, under proper circumstances, enforce them against his neighbor, (Whitney v. Railway Co., 11 Gray, 359; Parker v. Nightengale, 6 Allen, 341; Linzee v. Mixer, 101 Mass. 512; Tobey v. Moore, 130 Mass. 448; Beals v. Case, 138 Mass. 138; Payson v. Burnham, 141 Mass. 547, 6 N. E. Rep. 708;) and that the restrictions inserted by the city in its deeds were of this nature, (Hano v. Bigelow, 155 Mass., 29 N. E. Rep. 628.) We also assume that the restrictions, except as expressly limited in duration, were intended to be permanent; and that the structures which the defendant proposed to erect were not necessarily "outbuildings," within the meaning of the fourth restriction. Keening v. Ayling, 126 Mass. 404; Sanborn v. Rice, 129 Mass. 387, 397; Ayling v. Kramer, 133 Mass. 12, 14; Hamlen v. Werner, 144 Mass. 396, 11 N. E. Rep. 684. We also assume that an owner

having the right to enforce such a restriction, if otherwise entitled to sue in equity, is not obliged to wait until after the objectionable structure has been erected, before bringing his bill, (Peek v. Matthews, L. R. 3 Eq. 515;) and that relief may be granted, although no actual serious pecuniary damage may have been sustained or is to be expected, (Attorney General v. Algonquin Club, 153 Mass. 447, 455, 27 N. E. Rep. 2;) and that an owner may neglect to object to infractions of restrictions to some extent, without losing his right to enforce the restrictions when they more clearly and seriously affect him, (Linzee v. Mixer, 101 Mass. 512, 531; Payson v. Burnham, 141 Mass. 547, 556, 6 N. E. Rep. 708.)

Assuming these points in favor of the plaintiffs, we are nevertheless of the opinion that an injunction should not be granted in the present case. It is evident that the purpose of the restrictions as a whole was to make the locality a suitable one for residences; and that owing to the general growth of the city, and the present use of the whole neighborhood for business, this purpose can no longer be accomplished. If all the restrictions imposed in the deeds should be rigidly enforced, it would not restore to the locality its residential character, but would merely lessen the value of every lot for business purposes. It would be oppressive and inequitable to give effect to the restrictions; and, since the changed condition of the locality has resulted from other causes than their breach, to enforce them in this instance could have no other effect than to harass and injure the defendant, without effecting the purpose for which the restrictions were originally made. Duke of Bedford v. Trustees, 2 Mylne & K. 552; German v. Chapman, 7 Ch. Div. 274, 279; Sayers v. Collyer, 24 Ch. Div. 180, 187; Trustees v. Thacher, 87 N. Y. 311; Green v. Richmond, 155 Mass. --, 29 N. E. Rep. 770. But, as the plaintiffs have no remedy at law against the defendant, the bill should be retained for the purpose of assessing their damages. Upon the master's report they are entitled to some damages, and we do not understand him to find that, upon the view which we have taken, the damages are merely nominal. The case is to be referred to an assessor to report the damages caused to the plaintiffs by the erection of the structures which the defendant has caused to be built since the bringing of the bill, but an injunction is denied. So ordered.

INHABITANTS OF HYDE PARK V. COUNTY COM'RS OF NORFOLK. (Supreme Judicial Court of Massachusetts. Norfolk. June 27, 1892.) HIGHWAYS-LAYING OUT-NOTICE-APPEARANCE"SUIT"-WHAT IS-PROHIBITION-WHEN LIES.

1. Where a town, by its authorized officers, appeared before the board of county commissioners pursuant to notice, and without objection participated in the hearing of a petition to lay out a highway, it cannot afterwards object to the organization of the board when the notice was issued.

2. Proceedings before the county commissioners on a petition to lay out a highway, in which counsel appear, witnesses are examined,

and arguments made as in other courts, is a suit, within the meaning of the by-law of a town authorizing its selectmen to "appear and defend suits brought against it."

3. The county commissioners having acquired jurisdiction of the subject-matter by a petition to lay out a highway, prohibition does not lie to restrain proceedings thereon, though the proceedings may be irregular and informal.

Original application of the inhabitants of Hyde Park for a writ of prohibition to George W. Wiggin and others, commissioners for the county of Norfolk. Writ denied.

J. E. Cotter and W. M. Stockbridge, for plaintiffs. J. D. Ball and T. E. Grover, for defendants.

BARKER, J. We are asked to prohibit the county commissioners of Norfolk County from proceeding further upon a petition representing that public convenience and necessity require Metropolitan avenue, in Hyde Park, to be laid out As a highway. The commissioners, one of whom, Morrell, was a resident of Hyde Park, were sitting on May 20, 1890, in an adjourned regular meeting when this petition was presented. Thereupon Morrell retired from the room, and from the deliberations of the board, and he has not either then or afterwards acted on the petition. Upon his withdrawal, no one then appearing in opposition, the other two commissioners made an order of notice appointing the 9th day of the next July and the office of the selectmen in Hyde Park as the time and place for meeting and proceeding to view the route, and hearing and acting upon the petition, and this order was duly served upon the town. In pursuance of the order, the board, consisting of the two other commissioners and a qualified special commissioner, met and viewed the route, and by adjournments bad hearings upon different days upon the merits of the petition; and on July 31, 1890, adjudged that common convenience and necessity required the way to be laid, and appointed October 7, 1890, as the time when they would further view the premises and lay out the way. The selectmen of Hyde Park, and other citizens and taxpayers of the town, appeared before the commissioners, and opposed the laying out of the way at the hearings on the merits of the petition. The selectmen had no authority to appear for the town unless under a by-law which is as follows: "Actions at Law. The selectmen shall have full authority, as agents of the town, to employ counsel to institute and prosecute suits in the name of the town, and to appear for and defend suits brought against it, unless otherwise specially ordered by vote of the town." On September 17, 1890, the town voted to refer the matter to the selectmen, "with full power to represent and protect the town's interest in any manner which they may deem legal, honorable, and proper. the meeting of October 7, 1890, the two commissioners and the special commissioner sitting, the selectmen, in behalf of the town, presented in writing its objections to any further action by the board. The commissioners declined to hear evidence in support of the objections, and

At

thereupon the town withdrew from the hearing, and brought this petition for a writ of prohibition. The objections, so far as now insisted upon, were, in substance, that the board which received the petition was not properly constituted; that Morrell acted as one of the commissioners in issuing the order of notice; that no legal notice of the hearing was ordered or served; and that the adjudication was not legally made by a properly constituted board. At the meeting of July 9th, and the hearing on the merits prior to July 31st, the petitioners for the way appeared, and also the town of Hyde Park, represented by an attorney and counselor at law and by the selectmen; but there was no vote of the town in relation to the matter until that of September 17th. At these hearings the selectmen claimed that the commissioners had no jurisdiction, because the avenue was a public way; but the commissioners found that it was a private way, and the town no longer controverts this point. No other objection was made, before the adjudication of July 31st, to the jurisdiction of the commissioners, or to the validity of their proceedings; but neither the selectmen, nor the counsel who appeared for the town, knew of the facts pertaining to the issue of the notice until after that date. In the agreed statement of facts a preliminary question is reserved by the parties whether, in view of the commissioners' record, evidence aliunde is admissible of the fact that Morrell retired from the meeting of May 20, 1890, upon the presentation of the petition, and took no further part in the proceedings. But even if we assume that the order of notice was made by the full board of standing commissioners, or that it was not within the power of the two commissioners after Morrell's withdrawal from the meeting to make that order, we are of opinion that any objection on either ground is no longer open, in consequence of the appearance and participation of the selectmen in behalf of the town in the hearings upon the merits of the petition, resulting in the adjudication of July 31st.

In the first place, it is to be observed that the jurisdiction of the board is acquired, not by the issue or service of the order of notice, but by the presentation of the petition, which asks the board to act in a matter over which jurisdiction is given to it by the statutes. Jurisdiction attached upon the presentation of the pe tition, and was not lost, and could not be divested, by the adoption of unauthorized, or the omission of required, steps on the part of the board. The office of the order was to enable the petitioners for the way, and all other persons interested in the possible action of the board, to know when and where they might attend upon it to make known and protect their rights in the matter. As the meeting was appointed to be held at the office of the selectmen, and after a reasonable interval, it is evident that the order gave the town the same opportunity to appear and to protect its rights as one made by a full board of competent commissioners. In either case the irregularity is therefore

one which, upon sound principles, may be waived by the parties interested, or cured by a general appearance and participation in the subsequent proceedings, without objection to the invalidity of the notice. Com. v. Westborough, 3 Mass. 406; Ripley v. Warren, 2 Pick. 592; Inhabitants of New Salem, Petitioners, 6 Pick. 470, 473; Freetown v. Commissioners,

Pick. 46, 50; Ipswich v. Commissioners, 10 Pick. 519; Copeland v. Packard, 16 Pick. 217, 220; Rutland v. Commissioners, 20 Pick. 71, 80; Hancock v. Boston, 1 Metc. (Mass.) 122, 125; Whately v. Commissioners, Id. 336, 344; Simonds v. Parker, Id. 508; Carpenter v. Aldrich, 3 Metc. (Mass.) 58; New Marl. borough v. Berkshire County Com'rs, 9 Metc. (Mass.) 423, 433; Clark v. Montague, 1 Gray, 446; Loomis v. Wadhams, 8 Gray, 558, 561; Tolland v. Commissioners, 13 Gray, 12; Hastings v. Bolton, 1 Allen, 529, 531; Lawrence v. Bassett, 5 Allen, 140, 142; Lathrop v. Bowen, 121 Mass. 107; Hazard v. Wason, 152 Mass. 270, 25 N. W. Rep. 465. The principle of these cases is not altogether that of waiver, but may be thus stated: that when a court has jurisdiction of the cause it may acquire jurisdiction of the necessary parties by their voluntary appearance and submission. In this case the records and minutes of the board which had issued the notice were public, and open to the inspection of the town's officials and counsel; and a general appearance of the town, and participation in the hearing upon its merits, without objection upon the point, would cure any defect of notice, and give the board jurisdiction over the town as a party, although its officers and counsel were ignorant of the defect. If the town desired to rely upon technical objections, it was bound to use the means at hand to obtain information of facts perfectly accessible; if it has acted in ignorance of them, it cannot now complain, or escape the legitimate effect of its action. New Salem, Petitioners, 6 Pick. 470, 473; Hastings v. Bolton, 1 Allen, 529, 531.

Whether the town has cured the defect depends upon the authority of its selectmen and counsel to represent it at the hearings resulting in the adjudication of July 31st. If under the by-law they had authority to act for and represent the town, it cannot now be heard to complain of an invalidity of notice. That they had such authority is plain. The by-law makes them agents of the town to employ counsel, to institute and prosecute suits in its name, and to appear for it and defend suits brought against it. There is no question that proceedings before the county commissioners, in which counsel appear, witnesses are examined, and arguiments made as in other courts, are suits; and as the town is a necessary party to which notice must be given, and which has a right to be heard, and is necessarily affected by the determination of the matter in issue, the proceeding may be fairly said to have been a suit against the town. There is hardly any class of cases before the courts in which towns are more frequently interested than in those relating to the laying out or alteration of ways. It

would be too narrow a construction of the language of the by-law to hold that it did not authorize the selectmen to act for the town in such proceedings. That its practical construction, both by the selectmen and by the town itself, was broader, and recognized the authority of the selectmen to act in such a case, is apparent from the fact that they without other authority did in fact employ counsel and appear in behalf of the town at the hearings, and take part in them upon the merits; and from the further fact that after the adverse adjudication the town meeting, instead of repudiating their action and that of the counsel whom they had employed, merely referred the matter back to them, with full power to represent and protect the town's interest in any manner which they might deem legal, honorable, and proper; and the same counsel appears for the town in the present petition. We therefore hold that the appearance of the town before the commissioners, and its participation in the hearings upon the merits, gave to the commissioners jurisdiction over the towo as a party; and that it cannot now be heard to object that the proceedings were invalid for want of power in the board constituted with Morrell, or with the two commissioners, to make the order for the view and hearing and for the giving of notice.

In addition, it is plain that a writ of prohibition could not be granted, even if the proceedings of the commissioners after the presentation of the petition were invalid, and if the town was in a position to so claim. The writ is not to be granted to restrain a tribunal which, having jurisdiction of a cause, is merely proceeding in it improperly; and it will not be granted if the court has jurisdiction. It is "a writ to forbid any court, either spiritual or secular, to proceed in any cause there depending upon suggestion that the cognizance thereof belongeth not to the same court." Cunningham, tit. "Prohibition.' "Then was considered the reason of prohibitions in general, that they were to preserve the right of the king's crown and courts, and the ease and quiet of the subject; that it was the wisdom and policy of the law to suppose both best preserved when everything runs in its right channel, according to the original jurisdiction of every court. Oldis v. Donmille, Show. Parl. Cas. 63. "And it is contra coronam et dignitatem regiam for any to usurp to deal in that which they have not lawful warrant from the crown to deal in. * * * The prohibitions do not import that the ecclesiastical courts are aliud than the king's, or not the king's, courts, but do import that the cause is drawn into aliud examen that it ought to be; and therefore it is always said in the prohibition, be the court temporal or ecclesiastical to which it is awarded, if they deal in any case which they have not power to hold plea of, that the cause is drawn ad aliud examen than it ought to be, and therefore contra coronam et dignitatem regiam." 2 Inst. 602. And while upon the ancient law, it may be noticed that prohibition was refused if not prayed for until after plea. In Clerk v. Andrews, 1 Show. 9, one Moore, at West

minister, out of the jurisdiction of the court of the Poultry-Compter, was garnished in that court. Whereupon it was pleaded that Moore was never indebted to the principal defendant infra jur, cur. præd. The plea was refused, and Shower moved the king's bench for a prohibition, urging that the court of Poultry-Compter had no jurisdiction of Moore. HOLT, C. J., said: "There was reason in it; but our pleading of it was after imparlance; and so we came too late, and, because we did not plead in time, prohibition was denied.' And to the same effect is an anonymous case in 2 Show. 156, as follows: "In case one be cited out of the diocese, no prohibition is to be granted after plea, for thereby the defendant has owned the jurisdiction of the court.

99

The principal cases in which this court has been called upon to discuss the law of prohibition are Rutland v. Commissioners, 20 Pick. 71; Whately v. Commissioners, 1 Metc. (Mass.) 336; Washburn v. Phillips, 2 Metc. (Mass.) 296; Gilbert v. Hebard, 8 Metc. (Mass.) 129; Vermont & M. R. Co. v. County Com'rs of Franklin, 10 Cush. 12; Day v. Springfield, 102 Mass. 310; Connecticut River R. Co. v. County Com'rs of Franklin, 127 Mass. 50; Henshaw v. Cotton, 127 Mass. 60; Chandler v. Commissioners, 141 Mass. 208,5 N. E. Rep. 509. An examination of these cases shows that if the court has jurisdiction, prohibition will be denied, although upon the record the proceedings may ap. pear to have been defective or informal, and that it will only be interposed in clear cases of excess of jurisdiction. Petition dismissed, with costs.

1. Under Pub. St. c. 13, §§ 38-40, which provide that in taxing railroad corporations the aggregate value of the shares of their capital stock shall be taken as a basis of assessment, there should not be included in the assessment proposed but unissued new shares, although such shares are paid for, and have a market value.

2. Where the commonwealth is the only party defendant, an appeal from a judgment for the plaintiff should be taken in the name of the commonwealth, and not in that of the attorney general.

3. When such appeal, erroneously taken in the name of the attorney general, is argued on its merits before expiration of the time within which the commonwealth might have been permitted to appeal, the appeal may be decided on its merits, athough the formal objection has not been waived.

Appeal from supreme judicial court, Suffolk county.

Petition by the Boston & Albany Railroad Company to recover taxes paid under protest. The capital stock of the petition on September 29, 1890, was $20,000,000, divided into 200,000 shares. On that date the directors voted to increase the capital stock by the issue of 50,000 new shares, so that the capital would be $25,000,000. Notice of this intended increase was given to each stockholder of record

on September 24, 1890, announcing that such stockholders would be entitled to subscribe on or before January 5, 1891, for 1 new share of stock for every 4 shares held by them respectively, on the payment of $100 per share, as follows: $10 per share on January 5, 1891, and $90 per share on January 5, 1892, when certificates of stock were to be issued. By the terms of the notice, payments might be made prior to those dates, but no interest could be allowed in case of such prepayments, and in no event would certificates of stock be issued before January 5, 1892. On May 1, 1891, said company had received $34,000 from persons who had subscribed for and would be entitled on January 5, 1892, to certificates for 340 shares of said new stock, and had received from persons who had subscribed for 48,974 new shares of said stock 10 per cent of their subscriptions, or $489,740. On or about May 1, 1891, said fully-paid subscriptions sold in the market for $190 each, and said subscriptions upon which 10 per cent. only had been paid had a market value of $100 each. No certificates of stock were is. sued, and no dividends paid, upon said subscriptions. The tax commissioner of the common wealth, acting under Pub. St. Mass. c. 13, assessed the 340 fully-paid subscriptions, aforesaid, as if they were shares of existing capital at a valuation of $190 each, and the 48,974 subscriptions upon which 10 per cent. had been paid as if they were shares of existing capital at a valuation of $100 each, and upon said two classes of subscriptions imposed a tax of $58,628.94. The claim of petitioner is based upon the ground that there was, as a matter of law, no capital stock of the company existing on May 1, 1891, except the $20,000,000 of capital, upon which the tax had been paid without objection. The commonwealth interposed a demurrer, which was overruled. The attorney general appeals. Affirmed.

Samuel Hoar, for petitioner. Geo. C. Travis, First Asst. Atty. Gen., for the Commonwealth.

ALLEN, J. There is an informality in the appeal from the decree overruling the demurrer, and in the appeal from the final decree. The commonwealth is the only party defendant, and the appeals should have been in its name. The appeals taken were not authorized by law. Pub. St. c. 151, §§ 13, 16. But by section 19 a party who has by accident or mistake omitted to claim an appeal within the time allowed for that purpose may be permitted to appeal at any time within one year. Under these circumstances, although the formal objection has not been waived, yet as leave to enter an appeal now might be granted, and as the case has been fully argued on the merits, we have considered the substantial question upon which our decision is desired. That question is whether the commonwealth, in levying the corporation tax upon the petitioner, had a right to include the proposed and unissued new shares in estimating the value of the shares in the petitioner's capital stock. The provisions of statute for the taxation of railroad corporations

are found in Pub. St. c. 13, §§ 38-40. Under these provisions the aggregate value of the shares in the capital stock is to be taken as a basis. There is no doubt that, for certain purposes, one may be considered as a stockholder of a corporation before he has received a certificate of his shares, or even paid for them. It has been so held under statutes making stockholders liable for debts of a corporation. Hawes v. Petroleum Co., 101 Mass. 385, 395. An examination of the various provisions of the statute leads to the conclusion that, for the purpose of levying the corporation tax, only shares which have been fully paid for, and which are either actually issued or at any rate are ready to be issued, can be included in the valuation. There is a general provision that "no corporation, unless specially authorized, shall issue any share for a less amount to be actually paid in thereon than the par value." Pub. St. c. 105, § 17. When the capital stock of a railroad corporation is increased, the new stock, whether taken by the existing stockholdera or sold at auction, must be paid for in cash, at not less than par, or no certificate can be issued therefor. Pub. St. c. 112, §§ 58. 59. At all meetings of railroad corporations, each stockholder is entitled to one vote for each share held by him; not exceeding, however, one tenth part of the capital stock. Pub. St. c. 112, § 53. If a railroad corporation issues certificates of stock when the par value of the shares so issued is not first paid in cash to its treasurer, all certificates so issued are void. Pub. St. c. 112, § 61. Where a corporation increases its capital stock, an accepted subscription for new shares constitutes in the first instance a contract between the subscriber and the corporation, which creates reciprocal rights and obligations; but until the time comes for the issue of the new shares according to the terms of the contract, it cannot in any usual or ordinary sense of the words be said that the subscribers became holders of shares. The peculiar rights of share holders, such as the right to vote at meetings and to receive dividends of profits, do not exist until then. It is obvious, under the statute above cited, that one who has subscribed for shares, and paid in only 10 per cent. of the par value thereof, is not entitled to vote at meetings. The provision that each stockholder is entitled to one vote for each share held by him weans one vote for each full-paid share, such as the other statutes allow to be is sued. There is no provision for splitting votes, and allowing those who have paid 10, 20, 50 per cent. a vote in proportion to the amounts so paid in by them. The authority which the petitioner possessed for increasing its capital stock involved, within reasonable limits, the power in its board of directors to determine when the payment should be made in order to effect such increase. Pub. St. c. 112, § 58. This power is necessarily incident to the power expressly granted. And when the board of directors, acting in good faith towards the commonwealth, and within reasonable limits, has fixed the time for payments to be made and for the increase to

take effect, the creation of the new shares is postponed until that time arrives. During the interval the relation between the subscriber for new shares and the corporation is that of parties who have contracted with each other that the subscriber should become a shareholder in the future. Where a corporation had issued coupon notes payable to bearer, which were convertible at certain fixed dates into stock, it has been expressly held that a holder of such notes prior to their conversion into shares was in no sense a stockholder in the corporation. Pratt v. Telephone Co., 141 Mass. 225, 230, 5 N. E. Rep. 307. In the present case the great majority of the subscribers had not paid the par value of the shares subscribed for, but only 10 per cent. thereof. They could not be entitled to an issue of the shares until payment of 90 per cent. more. For the purpose of taxation the petitioner was bound annually to return to the tax commissioner "a complete list of its shareholders, with their places of residence, the number of shares belonging to each on the 1st of May," with certain other particulars. Pub. St. c. 13, § 38. The shares be longing to each stockholder cannot by any just use of language be deemed to include those for which he had merely subscribed, but which were not paid for nor ready to be issued.

On the whole, it seems to us that the tax upou the corporate franchise of the petitioner could not lawfully be based on a valuation which included the rights of subscribers on the 1st of May, 1891, when the shares were not to be issued until the 5th of January, 1892. See Sewall v. Railroad Co., 9 Cush. 5, 11; Fisher v. Bank, 5 Gray, 373; Field v. Pierce, 102 Mass. 253, 261. The liability of this valuable right and interest to taxation in another form is not before us. Railroad Co. v. Robbins, 23 Minn. 439; Spring Co. v. Knowlton, 103 U. S. 49, 57; Busey v. Hooper, 35 Md. 15, 31; Burrall v. Railroad Co., 75 N. Y. 211, 216; Neiler v. Kelley, 69 Pa. St. 403, 407. Decree affirmed.

KIMBALL et al. v. ST. LOUIS & S. F. RY. Co.

(Supreme Judicial Court of Massachusetts. Suffolk. June 23, 1892.) ACTIONS AGAINST FOREIGN CORPORATIONS-JURISDICTION.

The courts of Massachusetts will not take jurisdiction of a suit by the stockholders of a Missouri corporation to enjoin the corporation from issuing bonds secured by mortgage on property in Missouri.

Case reserved from supreme judicial court, Suffolk county; JAMES M. BARKER, Judge.

Bill by David P. Kimball, Uriel H. Crocker, N. W. Bumstead, Charles J. Morrill, Thomas Nickerson, Oakes A. Ames, and E. Pierson Beebe against the St. Louis & San Francisco Railway Company, a Missouri corporation, to enjoin the defendant from issuing certain mortgage bonds, unless such bonds are made subordinate to the rights of the plaintiffs, as holders of the company's preferred stock.