Page:Federal Reporter, 1st Series, Volume 7.djvu/808

 796 FEDERAL REPORTBB» �things with the concurrence of a majority of the stockhold- ers, (sections 41 and 43,) does not tend to prove that the directors could not exercise the other powers granted the corporation. �The forty-third section provides that — �Said railway company (the holders.of a majorlty of the stock therein concurring) may agree on terms for consolidating said company with any other railroad company, etc.; and the next section (44) provides that said company may issue and sell the coupon bonds of said company ; and the forty-flf th section provides tiat, to secure the prompt payment of the interest and principal of said bonds, said compaijy may execute a mortgage or deed of trust; but in neither section is it provided that the stoclchold- ers raust cpncur. �It is quite clear, from these and other sections of the char- ter, that the directors and president of the company were authorized to issue mortgage bonds and secure them upon the property of the company. Jones on Eailroad Securities, § 84. �The mortgage could be legally acknowledged by the presi- dent of the company in Ohio, and it seems to be in proper form. Jones on Eailroad Securities, §§ 84, 86; Kelly v. Calhoun, 95 U. S. 710; Marlin v. Mobile & Ohio B. Co. 7 Bush, 177; 11 Wall. 476. �The allegation of the cross-bill as to the issuing of the bonds, and that they are outstanding in the hands of hona fide holders, is sufficient. If these bonds were delivered in payment for work done and materials furnished, it was equally as good as if they had been sold for cash — money in hand. �The 90 days' notice required by the forty-seventh sec- tion of the charter * does not apply to the bringing of the suit for foreclosure, but to the foreclosure itself. �The charter, section 45, gives the authority to secure the mortgage bonds by conveying "the said railroad and its prop- erty franchises." It is unnecessary to decide on these demur- rers the exact meaning of these words. It certainly gave the company the right to mortgage its property then owned, and that which it might thereaf ter acquire by its existing charter. �* " Section 47. * * Foreclosure sliall not take place until 90 days after publication of notice of the commencement of prooeedings to tkat endshall have been made," etc. — [Rbp. ��� �