Bisbee daily review., 1908-05-30
DECISION IN
 LEWISTON CASE
 INSTANTANEOUS
Next Old Dominion Decision Should Be From Court of chancey of New Jersey On Appeal.

BOSTON, May 29.--The United States supreme court decision in the Old Domiuion-LIewisohn case was unanimous. The opinion was writ ten by Justice Holmes o Massa- chusetts. Reference $ made in ihe opinion to the fact 'tnaS the supreme judicial court of Massachusetts had held the plaintiffs entitled to recoy- cry from Bigelow upon a similar bill' to that before the United States supreme court.
 This decision removes the Levi sohn estate from any participation in any findings OT the supreme court ol Massachusetts in case that vvuTL should uphold the decision of Justice Sheldon. This case, however, will not come up before November. The next Old Dominion decision should be from the court of chancery Of New Jersey on appeal from lower court which issued an injunction against any prosecution of the case in the Massachusetts cOurt-a Iathe. unusu- al legal proceeding.
 We give herewith excerpts from the decision of the United States su- preme court:
 The difficulty that meets the pc titioner COld Dominion Col at the outset is that it has assenUed to the transaction with full knowledge of the factS% 2 At the time of the sale to the plaintiff there was no wrong done to any one. sBigeloW, Lewisohn and their syndicate were on both sides of the bargain. and they might issue to themselves as much stock in their corporation as they liked in exchange for their con veyance of their land. If there was q wrong. it was when the inno- cent public subscribed, but what one would expect to find, if a wrong hap pened then. would not be that the sale became a breach of duty to the corporation nunc pro tune, but thar the invitation to the public, without disclosure, when acted upon became a fraud upon the subscribers from an equitable point Of view, accom- panied by what they might treat as damage. For it is only by virtue of the innocent subscribers position and the promoters invitation that the corooration has any pretence for a standing in court"
 If the promoters after starting their scheme had sold their stock be- fore any subscriptions were taken. and then the purchasers of their stocks with notice had invited the public to come in and it did, We do not see how the company could main tain this suit If it could not then. we do not see how it eau now"
 "The nominal capital of the cOrpor- alton was the same when the con tract vas made and after the public had subscribed"
 Let us look at the business as pect alone: The syndicate was party to the scheme to make profit out of the corporation. Whether or not there was a subordinate fraud committed by Bigelow and Lewisohn on the agreement with them. as the petitioner believes. is immatecial to Che corporation. The issue of the stock was apparent. we presume, on the books. so that it is difficult to suppose that at least some members of the syndicate. representing an ad- verse interest, did not know what was done. But all of the members were engaged in the plan of buying for less and selling to the corporation for more and were subject to what ever equity the corporation has
 
 Lewisohn. sBigelow and Lew isohn. it is true. divided the stock re ceived or the real estate now in ques- ton. But that was a matter between them and the syndicate.
 "It is difficult. without inyentiHg new. and qualifying established, doc trines. to go behind the fact that the corporation remains one and the same after once it really exists. When, as here, after it really exists it consents, We at least shall require stronger equities than are shown by this bill to allow it to renew its claim at a later date because its in terna1 constitution has changed
 ITO sum up. in our opinion, the plaintiff cannot recover without de parting from the fundamental con- ceptfOn embodied in the law that created it: the conception that cor poratiOn remains unchanged and un- affected in its identity by changes in its members"
 .'Thirteen-sixteenth of the stock had been taken by the syndicate. The corporation was in full life and had assented to the sale with knowledge before an outsider joined.
 The members OT the syndicate, al though members of the corporation, are not joined. and it is sought to throw the burden of their act upon a single one"