could be united. Accordingly, on the 23d February, 1853, the general assembly of Indiana passed an act allowing any railway company that had been organized to intersect and unite their road with any other road constructed or in progress of construction, and to merge and consolidate their stock, and on the 4th of March, 1853, the privileges of the act were extended to railroad companies that should afterwards be organized.

The power of the legislature to confer such authority cannot be questioned, and without the authority railroad corporations organized separately could not merge and consolidate their interests. But in conferring the authority the legislature never intended to compel a dissenting stockholder to transfer his interest because a majority of the stockholders consented to the consolidation. Even if the legislature had manifested an obvious purpose to do so, the act would have been illegal, for it would have impaired the obligation of a contract. There was no reservation of power in the act under which the Cincinnati, Cambridge & Chicago Short Line Railway was organized which gave authority to make material changes in the purposes for which the corporation was created, and without such a reservation in no event could a dissenting stockholder be bound.

When any person takes stock in a railroad corporation he has entered into a contract with the company that his interests shall be subject to the direction and control of the proper authorities of the corporation to accomplish the object for which the company was organized. He does not agree that the improvement to which he subscribed should be changed in its purposes and character at the will and pleasure of a majority of the stockholders, so that new responsibilities, and it may be new hazards, are added to the original undertaking. He may be very willing to embark in one enterprise and unwilling to engage in another; to assist in building a short-line railway and averse to risking his money in one having a longer line of transit.

$749. The consolidation of railroad companies dissolves the old corporation and creates a new one.

But it is not every unimportant change which would work a dissolution of the contract. It must be such a change that a new and different business is superadded to the original undertaking. The Hartford, etc., R. Co. v. Croswell, 5 Hill, 383; Banet v. The Alton, etc., R. R., 13 Ill., 510. The act of the legislature of Indiana allowing railroad corporations to merge and consolidate their stock was an enabling act - was permissive, not mandatory. It simply gave the consent of the legislature to whatever could lawfully be done, and which without that consent could not be done at all. By virtue of this act the consolidations in the plea stated were made. Clearwater, before the consolidation, was a stockholder in one corporation, created for a given purpose; after it he was a stockholder in another and different corporation, with other privileges, powers, franchises and stockholders. The effect of the consolidation. "was a dissolution of the three corporations, and at the same instant the creation of a new corporation, with property, liabilities and stockholders derived from those passing out of existence." McMahan v. Morrison, 16 Ind., 172. And the act of consolidation was not void because the state assented to it, but a non-consenting stockholder was discharged. McCray v. Junction R. Co., 9 id., 358. Clearwater could have prevented this consolidation had he chosen to do so; instead of that he gave his assent to it and merged his own stock in the new adventure. If a majority of the stockholders of the corporation of which he was a member had undertaken to transfer his interest against his

wish, they would have been enjoined. Lauman v. Lebanon Valley Railroad, 30 Penn. St., 46. There was no power to force him to join the new corporation and to receive stock in it on the surrender of his stock in the old company. By his own act he has destroyed the stock to which the guaranty attached and made it impossible for the defendants to perform their agreement. After the act of consolidation the stock could not have any distinct market value. There was in fact no longer any stock of the Cincinnati, Cambridge & Chicago Short Line Railway.

Meredith and his co-defendants undertook that the stock should be at par in Cincinnati if it maintained the same separate and independent existence that it had when they gave their guaranty. Their undertaking did not extend to another stock created afterwards, with which they had no concern, and which might be better or worse than the one guarantied. It is not material whether the new stock was worth more or less than the old. It is sufficient that it is another stock and represented other interests.

750. Plaintiff's case to be pleaded affirmatively.

But it is said that the plea is defective because it does not aver that the consolidation was an act done without the consent of the defendants. The pleadings do not aver that the defendants were stockholders in any of the roads whose interests were merged, and, if they were not, it is not easy to see what right they had to interpose objections to consolidation, nor how their consent was necessary to carry out the object contemplated. If the plaintiff consented because they did, and it is meant to be argued on that account they would still be liable on their contract, the answer is that this is not a matter to be negatived by the defendants, but the plaintiff should reply the fact. 1 Chitt. Pl., 222.

It follows that the fifth plea presented a complete defense in bar of the action.

§ 751. Replication tendering issue of law held bad.

In this plea there were two points and two only which the plaintiff had the right to traverse. He could deny either the act of consolidation or that he gave his consent to it. He could not deny both, for that would make his replication double. And if either fact was untrue, the defense was destroyed. The truth of both was essential to perfect the defense. But traverse can only be taken on matter of fact, and it is always inadmissible to tender an issue on mere matter of law. 1 Chitt. Pl., 645.

The last replication does traverse a conclusion of law. Whether the stock of the Cincinnati, Cambridge & Chicago Short Line Railway Company was destroyed and rendered worthless and of no value was not a question for a jury to try. If the roads were consolidated with the consent of the plaintiff, then it followed as a conclusion of law that the stock was destroyed and of no value. The stock passed out of existence the very instant the new corporation was created. The issue, therefore, tendered by the plaintiff in his last replication was an immaterial one, and the court did not err in sustaining a demurrer to it.

8752. Filing new replication waives demurrer to former one.

But the plaintiff claims the right to have the decision of the court below on the sufficiency of his previous replications reviewed here. This he cannot do. Each replication in this cause is complete in itself; does not refer to, and is not a part of, what precedes it, and is new pleading. When the plaintiff replied de novo after a demurrer was sustained to his original replication, he

waived any right he might have had to question the correctness of the decision of the court on the demurrer. In like manner he abandoned his second replication when he availed himself of the leave of the court and filed a third and last one.

§ 753. A good plea in bar of the action will prevent judgment for plaintiff, whatever other pleas may be on file not disposed of.

But the plaintiff insists that even if his replication was bad, that still upon the whole record he was entitled to judgment, because the first and fourth pleas were undisposed of. If an issue in fact had been joined on the fifth plea, and found for the defendants, judgment was inevitably for them, because the plea was in bar of the action, and the other pleas would then have presented immaterial issues. If the plea was true, being a complete defense, it would have been useless to have tried other issues, for, no matter how they might terminate, judgment must still be for the defendants. The state of pleading leaves the fifth plea precisely as if traverse had been taken on a matter of fact in it, and determined against the plaintiff. "On demurrer to any of the pleadings which go to the action, the judgment for either party is the same as it would have been on an issue in fact, joined upon the same pleading and found in favor of the same party." Gould's Pleading, ch. 9, § 42. "And when the defendant's plea goes to bar the action, if the plaintiff. demur to it and the demurrer is determined in favor of the plea, judgment of nil capiat should be entered, notwithstanding there may be also one or more issues in fact; because, upon the whole, it appears that the plaintiff had no cause of action." Tidd's Practice, 4th Am. ed., 741-2. There is no error in the record. Judgment affirmed, with costs.

BEAN v. BECKWITH.

(18 Wallace, 510-516. 1873.)

CERTIFICATE OF DIVISION from U. S. Circuit Court, District of Vermont. STATEMENT OF FACTS.- Bean sued Beck with and Henry for assault and battery and false imprisonment, alleging that they kept him in prison for over seven months. They pleaded generally that being military officers, acting in the course of their duty as such, they had arrested Bean, who was charged with having been guilty of disloyal practices in enticing soldiers to desert from the army of the United States. The plea further alleged that the defendants, in so arresting plaintiff, acted under the authority and by order of the president of the United States, whose orders as commander-in-chief, etc., they were bound to obey. Plaintiff demurred to both the pleas, there being two of them to the above effect, and the circuit court, being divided in opinion as to their sufficiency, certified that fact to this court according to law.

754. Where one justifies for an alleged trespass he must so set forth his cause of justification, with essential details, that the plaintiff may be apprised of its nature, and may take issue upon it.

Opinion by MR. JUSTICE FIELD.

There is no averment in the pleas that at the time the plaintiff was arrested any rebellion existed in the state of Vermont against the laws or government of the United States; or that any military operations were being carried on within its limits; or that the courts of justice were not open there, and in the full and undisturbed exercise of their regular jurisdiction; or that the plaint

iff was in the military service of the United States, or in any way connected with that service.

Nor is there any averment in the pleas as to the manner in which, or the parties by whom, the charges of disloyal practices were made. It is not alleged that they were stated in writing or supported by oath.

Nor do the pleas, whilst asserting that the acts which are the subject of complaint were done under the authority and by the order of the president, set forth any order, general or special, of the president directing or approv ing of the acts in question.

For this last omission all the judges are agreed, without expressing any opinion upon the other omissions, that the pleas are defective and insufficient. It is an old rule of pleading, which, in the modern progress of simplifying pleadings, has not lost its virtue, that whenever one justifies in a special plea an act which in itself constitutes at common law a wrong upon the process, order or authority of another, he must set forth substantially and in a traversable form the process, order or authority relied upon, and that no mere averment of its legal effect, without other statement, will answer. In other words, if a defendant has cause of justification for an alleged trespass and undertakes to plead it, he must set it forth in its essential particulars, so that the plaintiff may be apprised of its nature and take issue upon it if he desires, and so that the court may be able to judge of its sufficiency.

§ 755. The statutes under which the defendants justify do not change the rules of pleading nor dispense with the proof of the authority under which defendants acted.

The defendants intended by their pleas to rest the justification of their conduct upon the provisions of the act of March 3, 1863, entitled "An act relating to habeas corpus, and regulating judicial proceedings in certain cases" (12 Stat. at Large, 756, § 4), and of the act of March 2, 1867, entitled "An act to declare valid and conclusive certain proclamations of the president, and acts done in pursuance thereof or of his orders, in the suppression of the late rebellion against the United States." 14 id., 432.

These statutes were enacted, among other things, to protect parties from liability to prosecution for acts done in the arrest and imprisonment of persons during the existence of the rebellion, under orders or proclamations of the president, or by his authority or approval, who were charged with participation in the rebellion, or as aiders or abettors, or as being guilty of disloyal practices in aid thereof, or any violation of the usages or the laws of war. Assuming for this case that these statutes are not liable to any constitutional objection, they do not change the rules of pleading, when the defense is set up in a special plea, or dispense with the exhibition of the order or authority upon which a party relies. Nor do they cover all acts done by officers in the military service of the United States simply because they are acting under the general authority of the president as commander-in-chief of the armies of the United States. They only cover acts done under order or proclamations issued by him or under his authority; and there is no difficulty in the defendants setting forth such orders or proclamations, whether general or special, if any were made, which applied to their case.

The views thus expressed render it unnecessary to consider any other objec tions taken by the plaintiff to the pleas before us. The questions certified must be answered in the negative, and the cause remanded for further proceedings.

SAVARY v. GOE.

(Circuit Court for Pennsylvania: 3 Washington, 140-145. 1812.)

STATEMENT OF FACTS. This was an action of debt on a bond, in the penalty of $1,920, with condition that the defendant should deliver to the plaintiff or his agent or assigns, at the place of embarkation in Brownsville, the quantity of one thousand nine hundred and twenty gallons of good merchantable proof whisky, in good and tight barrels, in all the month of May, 1809. Upon oyer of the obligation and condition the defendant pleads in bar that in all the month of May, 1809, he was ready, and prepared and willing, to deliver to the plaintiff or to his agent or assigns, at the place of embarkation at Brownsville, the quantity of one thousand nine hundred and twenty gallons of good merchantable proof whisky, in good and tight barrels, according to the tenor and effect of the said condition; but the plaintiff was not then and there ready to accept the same, nor was any agent or assignee of the plaintiff then and there ready to accept the same. There are four other pleas to the declaration, but as they, as well as the one just stated, are all demurred to specially, and the objections made to the first are also directed to the others, they need not be specially set forth.

Opinion by WASHINGTON, J.

It is objected to this and the other pleas-1. That it does not state that the defendant is still ready to deliver the whisky in the condition mentioned. 2. That it does not allege the readiness and preparation of the defendant at the last convenient hour of the 31st of May. It does not state that the defendant was at the place of embarkation, in person or by an agent, ready and prepared to deliver.

$756. Plea of uncore prest unnecessary in action for non-delivery of goods sold.

The first objection was pressed, not so much upon the authority of adjudged cases as upon the unreasonableness of the doctrine to which it is made, which renders a tender and refusal, or a readiness to perform, and the want of it in the other party, tantamount to performance, so as forever to discharge the obligation. The rule of law was, indeed, admitted to be, and so it undoubtedly is, that if the condition of the bond be not parcel of the obligation, as if it be to deliver certain goods, the obligation being for money, it is not necessary for the defendant to plead uncore prest; and if the legal consequence of tender and refusal in such a case be a discharge from the obligation, it belongs not to this tribunal on that account to depart from the established doctrines of law. The objection, therefore, has no validity.

8757. Rule as to the time of tender or of readiness to perform to be alleged in plea.

The doctrine laid down by the plaintiff's counsel, upon which his second objection is founded, can by no means be questioned. It is clear that if money is to be paid, or any other act to be performed, on a certain day and at a certain place, the legal time of performance is the last convenient hour of the day for transacting the business. This rule is established for the convenience of both parties, that neither may be compelled unnecessarily to attend during the whole of the day. But if the parties meet at the agreed place during any part of the day, a tender and refusal, though not at the last convenient hour, is sufficient; for in this case neither party is put to inconvenience. So, if the place be fixed and the party is to do the act on or before a certain