liable on their obligations; this would be such faithless and improvident waste and squandering of the assets of these corporations and corporators as would entitle them to the preventive protection of a court of equity.

That a foreign corporation may own property in this State, and transact business, and make contracts in it to be performed here, is too well settled to discuss. There is no law of this State prohibiting it. The capacity of such foreign corporation to hold property or transact business depends upon the law of the State which credited it. If that gives it power to own, lease, or use, property in another State, it has that capacity. The Pennsylvania acts of Feb. 17, 1870, and May 3, 1871, set forth by the answer, unquestionably gives this authority. This allows of no discussion, and was frankly admitted by the distinguished counsel who closed the argument for the complainants; he only excepted from it the personal property and stocks in other companies, whose railroads do not connect. But that restriction is only as to the roads embraced in the lease; it gives authority to enter into any other contract with companies owning connecting roads. This surely will include power to take, with such railroads leased, all property which the lessees hold for the furtherance of the objects of the leased road, as appurtenances to it-charters and situates of a foreign State must be construed here as by the courts of that State. Am. Print Works vs. Lawrence, 3 Zab., 590. And it was held in the Supreme Court of Pennsylvania, in The Philadelphia and Erie Railroad Company vs. The Catawissa Railroad Company, 53 Penn. R., 20, that a situate authorizing the lease of one railroad by another company authorizes it to lease another railroad leased to the lessor as appurtenant to its road. And many decisions of that Court, beside that in Gratz's case, hold leases and purchases made by these lessees without the consent of all the stockholders, to be valid.

Such are State policy and pride, which should not allow these works to be under the control of non-residents or of a foreign corporation. The expediency of permitting an overgrown, gigantic corporation, like another Colossus, to place one foot on our shore, with the other perhaps on the Pacific; that this lease of 999 years may impair or destroy the right of the State to take these works at cost in 1839, and that our citizens may be put to great inconvenience in being compelled to resort to courts of other States for redress of njuries suffered in this: these matters are proper subjects for con

sideration of the Legislature only; that has considered and decided. Its action in this case has been in accordance with the policy of the State for years, which has been to permit corporations of other States to lease works in this, and to construct new ones for themselves, under the impression that the expenditure of large sums of money on these works, and the increase of business which they bring here, are a great advantage to the State, the works themselves being constructed and operated by authority of and subject to the laws of the State. This general policy I have no power or inclination to overrule. I need not say whether in this case I think it wisely exercised. Neither is the policy or wisdom of the surrender by the State of its right to take these roads in 1889, at cost, for my consideration. If they were, I can not comprehend how a permission to the defendants to connect or consolidate their own business by contract, lease, or otherwise, could confer power to affect the rights of the State, even without the clear and distinct reservation of these rights contained in this act. This result could not be reached by the most liberal and latitudinarian construction, much less by the rules and strict construction which would most clearly apply. Had the State expressly authorized a lease of all the works for 999 years, the question would have been different.

The question whether the rent in this case is sufficient, and whether greater should not have been required to be paid, is exclusively for the determination of the directors and such stockholders as agree to receive it for their stock. The sufficiency of the security, the mere undertaking of the lessees with the right of re-entry, is for like determination. For property and assets of this amount intrusted to the directors of any corporation, it is not usual to require sureties; they could hardly be obtained. As the charters now stand, the persons who control the corporation lessee by purchasing a bare majority of the stock of the New Jersey corporations, or by the vote of the two-thirds who assent, could be elected directors, and without sureties obtain control of the alleged $15,000,000 of cash and convertable assets, and appropriate or squander them beyond control of any of those who dissent.

It

Had my views of the questions above considered been different, my determination of this application must have been the same. has been for a long time the established rule in Courts of Equity, in matters of preliminary injunction, that where the right of the complainants to which the alleged injury is threatened has never been

established at law, and is not to the Equity Judge clear or free from serious doubt, an injunction will not be granted, but the party will be left to his remedy at law. In some cases where the leaning of the judge is in favor of the right, and the intended injury is great, and if once done can never be fully remedied, the judge in his discretion will, by injunction, retain matters in statu quo until the hearing of the cause, or a decision at law. Here the right on which the application is based, the right of a minority of stockholders down to the owner of a single share, to prevent all the others from making, what to them seems, an advantageous disposition of their property, has never been established at law; and were my views in favor of that right, the injury to result from a temporary violation of that right, if the lease should be declared void in the end, is not so great or irreparable as to justify the exercise of that discretion in a case where it would seem so inequitable, where less than one-fiftieth of the stockholders claim to control all the others, and where full compensation is provided. If the interference of this Court should defeat the proposed arrangements, as it might, the loss to the stockholders who consent, of a bargain which they think very advantageous, would from the extent of their interest be far greater than that of the complainants by the refusal to enjoin.

This restriction on their action adopted by courts of equity, has been somewhat extended and definitely settled as the law in this State, by the Court of Errors, by the judgment in the case of The Morris and Essex Railroad vs. Prudden, 5 C. E. Green, 530. The Chancellor, in that case, had assumed that Prudden, by purchase of a lot fronting on a street laid down on a map and staked out on the ground, from the owner of the tract so mapped and laid out, was entitled to have the street kept open to its full width, and that the subsequent laying out a public highway over this street and its vacation, both by surveyors of the highways, without compensation, did not affect the right of way. These questions, the Court held, were proper to be determined by the courts of law, and that an injunction ought not to issue except in a strong and mischievous case of pressing necessity, without the right having been previously established at law. And while the opinion in that case admits that the law as to the right of way had been so established in other States, and cites a number of cases to show it, the decision of the Chancellor is reversed for this among other causes, and very consistently, without deigning to review the correctness of his conclusion, although the inference is

hardly questionable that the Court agreed with him in it. This judgment is direct authority for the position that the right of the complainant which he seeks to protect, or the principle of law on which it depends, must have been settled by the courts of law of this State, or the decision of the Court of Equity, even if correct, will be reversed.

There has been no decision on the right of the complainants to prevent a sale or lease of these works by any court of law in this State. None is pretended. The only decision is that of the learned Master who advised the Chancellor in Kean vs. Johnston.

In the first place, this is only a dictum, a dictum founded on no precedent, and followed by no court. The case was expressly decided on other grounds. But the Master, whatever his standing and authority as a lawyer, was sitting in a Court of Equity, and not a Court of Law, and, therefore, the authority is not sufficient. This is not only to be inferred from the language of the opinion in Prudden's case, but from the case itself. The Chancellor, in his opinion, relied upon and cited the decision of the Court of Errors in the case of Holmes vs. Jersey City, 1 Beas., (2,) 99. In that case Holmes had purchased of Van Vorst a lot laid out on his map, under the same circumstances precisely as Prudden's purchase.

The question was upon the right of the city to close part of the

street.

In the opinion of the Court of Errors, delivered by Chief Justice Green, the proposition is stated at the commencement as the foundation of the claim, "that the complainant who purchased under Van Vorst is entitled to the use of the entire street as dedicated." This proposition was at the foundation of the claim of Holmes, without it he had no standing in Court. To this proposition the whole Court assented, both by adopting the opinion and by reversing the judgment of the Chancellor, who did not perhaps, differ with them on this point, but his order dissolving the injunction was correct if Holmes had not this right. Six Judges of the Supreme Court and five Judges of the Court of Errors, also law Judges, concurred in this judgment. But they were sitting not as a court of law, but as a Court of Equity in an appeal from the Chancellor, and therefore i is properly assumed in Prudden's case, that this question had not been determined by a court of law. This must have been the main question, as the other, whether the right was lost by laying out and vacating a highway over the lands in which the easement was, could

extinguish it, is included in that so often declared by the court of law that the vacation of a highway laid out over lands, leaves the title as it was before the laying out. Both questions are included in the opinion in Prudden's case. The opinion of a master sitting in equity could not effect what was not done by the unanimous opinion of a court composed of all the law judges, because, sitting in equity. This doctrine has been since that decision, followed by this Court in many cases, including that of The Hackensack Improvement Commission vs. The N. J. Midland Railway Co., not yet reported.

The doctrine of acquiescence, too, as laid down and applied in Prudden's case, must deprive the complainants of the remedy by preliminary injunction. In that case the road had been located, and a track laid in 1846 and 1847, after Prudden's purchase, on the street in front of his lot, but on the side most distant from his lot. At the laying of the first track, there was nothing to intimate to Prudden that a second track would ever be required, or that the right to lay it was claimed. His only acquiescence was silence. In June, 1848, the highway was vacated by surveyors, and in December, 1848, the owners who laid out the street and sold to Prudden conveyed to the Railroad Company a strip in the street fifty feet wide. These facts appear in the opinion, and the judgment is founded on them. The Court held that this acquiescence in laying the first track deprived him of the right to the protection of an injunction, when the same company attempted to lay another track on the same street, nearer to his lot, that seriously incommoded the access to it over the street. The doctrine of acquiescence had not before been extended, even in injunction cases, beyond the thing or erection acquiesced in, and was not held to protect further encroachments of a like nature upon other parts of the same property, or to justify in equity him "who had been suffered to take my coat in taking my cloak also," as being parcel of my apparel.

In this case the delay of the complainants, in filing their bill until the terms of the contract were fully agreed upon, can not be held to be acquiescence. Until they knew the terms, they could not know that they were not such as might induce them to acquiesce or consent, even if they were not bound. But the acquiescence is their consenting to or acquiescing in former encroachments of the same nature on these very rights by the Legislature and their directors. For the gist of the decision in Prudden's case is, that it need not be an acquiescence in the injury then contemplated, but in a former one touching