The New York herald., 1869-02-25
SUPREME CoaaT-caAMBEeS.
she Mcrchants' Union Express Company's
I.iiigat;or-Thc Exchange OF stock and Pay
neas o. Asscssmenrs Permitted.

neas o. Assessments Permitted.
Before Judge Ingrahain
B!ctc1yrold rs. Merchants Ta1OR Express COM
pry; Ross ct al.-Ihis is the suit brought to enoin
the consolidation OF the Merchants Union and Aine-
r,can Express companies and was argued short
time since on motion for perpetual injunction and
receiver
Judge Ingr..ham yesterday rendered decision
and opinion In the case, in which he holds that the
.ntaority to amend the articles or association did
not empower the Executive Committee to change
the business of the corporation 10 one en-
trely different from that for which 1t was
organized, or TO terminate the existence oi
tue association and merge It In another. such
proceeding was not contemplated, and TO guard
against it the stockholders mad expressly provided
That their consent should be necessary before any
such change could be effected. They had no autho-
rits by such consolidation to bring che stock
holders under IN increased liability Tor debts OF
another company and EXPOSE them to loss which
might moi have existed before or which might follow
from the Introduction OF new company or associa-
ton and surrender TO such new company OF all the
property Of the association After citing some autho-
rites on the quesi0n he savs;-"Upon his branch OF
the case think 1t s clear that the proposed merger
81 the company In another without the consent OF the
stockholders is, as 10 those who do not agree
utterly beyond the powers OF the Executive c0mmt-
and Directors and il the union had not been sub
5 antally executed by transfer OF property and by
arge number OF the stockholders. It should be en-
joined until the final hearing OF The case.n No hene
ii. would accrue 10 either party by enjoinng them
her nom the use OF property already transferred
the surrender BY stockholders OF their stock to
son Tor so restraining the but IN regard 10 proper
ty not delivered the INJUNCTION should be continued
and the Directors ana Executive Committee should
he enjoined irom enforcing a compliance with the
rms OF consolidation on the part OF those
who ara unwilling TO become members OF
The new company, BY collecting the asses
mcnt on the shares OF stock, or in any
other manner, until the decision OF this As 10
The objection that the American Express Company
not made parties, these proceed ngs do nor in
terfere with that corporation. their stockholders b.
ing free to become meaibers anu the company not
property. Neither was the objection that all the
stockhoIders were NOT made defendants rood The
palntin represents one class and the defendant
another, and each party may litigae tor the benefit
o. the class they represent With regard 70 the ap
p0intnent of receiver that application was based
mainly on tue misconduct OF the Executive Commit
Tee, by voting various appropriations 70 themselves
appropriations OF the money OF the stock
holders for the benefit Of the committee
IN some cases for services prior TO the
organization or the company. In April, 1864, $500
monthly was voted 20 each OF the committee ana
others which in August was increased to 500
monthly. 10 commence January l. 1866. IN April,
1851, 81 500 voted 10 each member az coupensa-
lion for services rendered. In July, 1897, s2sOO
advanced 60 Josyn Il Co. 10 protect the interest
OF The company from assaults bv other express COM
pllles, and N September, 1867, a further sum OF
1000. In Mag 1867, $4,000 was voted to each mem
bar ofthe committee annually which was in Sep
Icnber reduced to $500 In October 1867. 81. 900
was voted 70 each mcmDer OF the committee ior SER
vces In 1855 and 1861 and for SERVICES IN organizing
the company. In December 1867. to eag1
member OF the Executive Committee and
hht attoIney VI tAH cpihpauF, S0V.eOD Tor
services prior to the organization Of tic compa1y
In devising ways and means W which the comnauy
might he formed. &c. upon the condition that each
member would invest tue same in the stock OF the
company. The last resolution was repealed in May
1865, and ;he treasurer directed to cancel the
endorsement Of tue $4,000 on the checks o. the Ex-
ecutiye Committee Ia pursuance or the former appro-
pTlation. But whether the stock was or was not
5ssueG 20 the Executive Committee under that res0-
lut0n does not appear In May, 1865, loan To O. n
Backus Of $4,000, on hs notes, for which no cause
= stated IN the resolution. In November 1865 a
resolution was passed directing the issue 10 tive OF
fhe Executive Committee OF 550 shares of stock
and 20 another oil 500 shares. in confederation
Of Their retirug ffom the Executive Comritte and
a cOlnFensail1u for services as promoters ana
oilGratOrs o. the company In addition 10 compen-
satiOn previously received. These grants were
passed bf the Executive Committee in their own be-
na and 1t IS claimed 10y The plaintiff that such rsso
lntions are void and receiver necessary 10 recover
back the same iOr TIE benedt Of the company.
Ihe Court expresses the belief that there a no
doubt OF the lnprOprety OF this In the present con-
dillon OF the company, and that there would be no
inpropriety Ia deciding IN favor OF the appointment
OF receiver. But the order restraining The ORIGINAL
receiver VIII protect the plaintiff fuy a. IL new
receiver were appointed, 10y his being made party
to tnat suit. For this reason the Judge sayg he will
reserve any order until after the receiver has
appeared and answered The objection that the
plhintln purchased the stock held by him from one
who had accepted the terms OF the consolidation h.
without force, because the piaintn brings MS action
FOR other reei than simply 70 prevent cOnsoida.
tion. The injunction. therefore, IL retained az
originally modified, with q further modification
namely, permitting such Of the stockholders "a 30
desire W exchange their stock for thai OF the new
company aud 70 pay the assessment thereon resery.
ing any decision TO the receiver until af,er the
present receiver shall be made party and fled mis-
answer la this action.