[k] (Or. 1895) Where an indictment for a felony is dismissed, the fact that the order of dismissal fails to show the cause thereof, as required by statute, does not render it a bar to another prosecution for the same offense.State v. Reinhart, 26 Or. 466, 38 Pac. 822. [1] (Pa. 1894) A dismissal, after hearing, of a prosecution against a husband for the desertion of his wife, is a bar to a second prosecution, nothing having occurred since such dismissal to change the situation of the parties. -Commonwealth v. Cawley (Quart. Sess.) 7 Kulp, 539, 16 Pa. Co. Ct. R. 259, 4 Pa. Dist. R. 69. [m] (Tex. 1876) A dismissal of a prosecution, after a conviction and the granting of a new trial, cannot be pleaded in another prosecution as a former acquittal, since the acquittal must be by the jury, under Pasch. Dig. art. 2591. -Brill v. State, 1 Tex. App. 152. [n] (Tex. 1881) A deed offered in evidence to sustain an indictment for forging the same was objected to, and ruled out for variance, whereupon the state was allowed to dismiss the prosecution, and accused was held in custody to enable a new indictment to be filed. Held not to be error, and that a plea of once in jeopardy was not well taken.-Ex parte Rogers, 10 Tex. App. 655, 38 Am. Rep. 654. [0] (Tex. 1901) Where a prosecution is dismissed before acquittal because of a defective information, and a correct one is filed, it is proper to instruct the jury to disregard a plea of former jeopardy.-Guinn v. State, 65 S. W. 376. [p] (Wash. 1894) 2 Hill's Ann. St. § 1374, providing that a dismissal of an indictment for want of prosecution shall not bar a second prosecution for the same offense, is constitutional.-State v. Caldwell, 9 Wash. 336, 37 Pac. 669. [q] (Wash. 1902) Under 2 Ballinger's Ann. Codes & St. § 6916, providing that a dismissal of a prosecution for a failure to file the information within 30 days after the preliminary examination shall not be a bar to another prosecution if the offense charged is a felony, a dismissal of a prosecution of assault with intent to kill, which is a felony, was not a bar to a further prosecution under a charge for the same offense, though it resulted in a conviction of simple assault-a misdemeanor.-State v. Armstrong, 69 Pac. 392, 29 Wash. 57. (135 Fed. 341.) RASCOVOR v. AMERICAN LINSEED CO. (Circuit Court of Appeals, Second Circuit. January 12, 1905.) -No. 47. CORPORATIONS-POWERS OF DIRECTORS-VALIDITY OF CONTRACT. The directors of a corporation under their general and ordinary powers have authority to incur expense in notifying the stockholders of a proposed scheme of consolidation, or for exchanging the stock of the corporation for that of another, as a matter of which it is their duty to promptly and fully advise all stockholders not only in their own interest, but in that of the corporation; and, having such authority, the manner of giving such notice and the expense to be incurred therefor is a matter within their discretion, and the corporation is bound by a contract made by them for the publication of notices to stockholders setting forth the scheme, whether it is consummated or not. In Error to the Circuit Court of the United States for the Southern District of New York. This cause comes here upon a writ of error by plaintiff below to review a judgment in favor of defendant in error, who was defendant below. The cause was tried in the Circuit Court, Southern District of New York. The facts were stipulated, and at the con clusion of the trial the court directed a verdict for the defendant, to which exception was duly reserved. The facts sufficiently appear in the opinion. Almon Goodwin, for plaintiff in error. G. W. Murray, for defendant in error. Before LACOMBE, TOWNSEND, and COXE, Circuit Judges. LACOMBE, Circuit Judge. The plaintiff sues as surviving partner of the firm of Albert Frank & Co. to recover the sum of $20,792.19, with interest, on a contract for newspaper advertising performed by said firm. The contract was made with the firm by the president and vice president of the defendant company assuming to act on its behalf in pursuance of a resolution of its board of directors. The advertisement was published in the various newspapers of eight large cities. It consisted of a letter or circular authorized by said resolution to be published, and is as follows: "American Linseed Company, "New York, May 20th, 1901. "To the Stockholders of the American Linseed Company: The Board of Directors are pleased to report to the stockholders that, after mature consideration and deliberation, a most desirable arrangement has been effected for an exchange of the stock of the American Linseed Company for the stock of the Union Lead and Oil Company. "The capital stock of the Union Lead and Oil Company, including that necessary to acquire all the capital stock of the American Linseed Company on the terms hereinafter mentioned, to be seventeen million dollars ($17,000,000), said stock being all of one class Common Capital Stock, one hundred and seventy thousand shares (170,000), of one hundred dollars ($100) each. "The stock of the American Linseed Company shall be deposited under the agreement-copies of which are on file with the depositaries hereinafter mentioned to be exchanged for the stock of the Union Lead and Oil Company on the following basis or terms: "Each share of the Preferred Stock of the American Linseed Company shall receive forty-eight dollars ($48) in the stock of the Union Lead and Oil Company. "Each share of the Common Stock of the American Linseed Company shall receive eighteen dollars ($18) in the stock of the Union Lead and Oil Company. "The Union Lead and Oil Company reserves the right to refuse to make such exchange unless there is deposited for such exchange two-thirds (2/3) of each class of stock of the American Linseed Company. "The holders of large amounts of the stock of the American Linseed Company have already signified their approval of the arrangement, and your Board of Directors urge the prompt acceptance thereof by the balance of the stockholders. "Certificates of stock, duly and regularly assigned and endorsed in blank, duly witnessed, with proper revenue stamps attached for transfer, should be deposited with the New York Security and Trust Company, No. 46 Wall Street, New York City, or the Illinois Trust and Savings Bank, City of Chicago, upon deposit of which transferable receipts will be issued, exchangeable for the stock of the Union Lead and Oil Company upon the consummation of the arrangement. "Deposits must be made on or before the 5th day of June, 1901, after which date no deposits will be received except in the discretion of the Board of Directors of the Union Lead and Oil Company and on such terms as they may prescribe. "By authority of the Board of Directors, "Guy G. Major, President." "New York, May 20th, 1901. "To the Stockholders of the American Linseed Company: The undersigned stockholders of the American Linseed Company having carefully considered the proposed arrangement between the stockholders of the American Linseed Company and the Union Lead and Oil Company, have decided to exchange our stock as per said arrangement for the stock of the Union Lead and Oil Company. "We believe that the consummation of the proposed arrangement will decrease expenses and lower the cost of maufacture, resulting in large net earnings applicable to dividends. "Inasmuch as the Union Lead and Oil Company have reserved the right to refuse to make such exchange unless two-thirds (2/3) of each class of stock of the American Linseed Company is deposited, we urge the prompt deposit of your stock. "Faithfully yours, "[Here follow the names of 10 out of the 15 directors of the defendant corporation.]" The scheme for exchange of stock turned out to be unsuccessful, its promoters not being able to secure the approval of the holders of the prescribed two-thirds of the stock of the defendant corporation. The Circuit Judge, in disposing of the cause by directing judgment for the defendant, stated his reasons as follows: "The case turns upon the power of the directors to bind the corporation to the contract with the plaintiff into which they entered; in other words, whether the directors of a corporation have authority, when acting under their general and ordinary powers, to obligate the corporation for the expenses of a proposed exchange of stock by its stockholders for the stock of another corporation. Now, necessarily, such a scheme is not a corporate undertaking. It is one which wholly concerns the individual stockholders. The corporation has not received any benefit from the services which the plaintiff has performed. Individual stockholders may have received a benefit, because they have been notified of what was going on, and had an opportunity to acquiesce in it or reject it. As the proposed scheme was not one within the power of the directors, they could not bind the corporation for the expenses they incurred in carrying it out. The plaintiff had full notice of the character of the scheme when he contracted with the directors. The advertisements inserted upon their face gave him full notice; consequently he is not entitled to recover." The case seems to be one of novel impression. The industry of counsel had failed to disclose any authority directly on the point, and we have not succeeded in finding any. The question here is not as to the expenses, generally, of a proposed exchange of stock, but only as to the cost of this particular advertisement; and as to that we are unable to concur with the Circuit Judge. It was a notification of what was going on, and, in our opinion, when it comes to the knowledge of a board of directors that some scheme is on foot to induce a majority of the stockholders to part with their stock to a rival corporation, the directors are not only authorized to advise all the stockholders thereof, but it is their duty so to do, and to give such notification promptly. The future career of the corporation itself, its increased or decreased activity-indeed, its very existence as a going concern-may depend upon whether such a scheme is or is not carried through. No one can tell in advance but what timely notice thus given to all may cause individual stockholders to bestir themselves, to get into communication with others, to procure and exchange information, and thus to organize successful opposition to a scheme which, if it were carried on secretly with the aid of directors who favored it, and without exploitation except to such individual stockholders as lacked the knowledge or the force to organize an opposition, might result in shutting down every plant which the corporation operated, and paralyzing the very industry it was created to carry on, or at least might involve the corporation in expensive litigation to vindicate its right to continue in active business. Undoubtedly individual stockholders receive a benefit in being notified of what is going on, but, in our opinion, the corporation itself also receives a benefit in having its stockholders at all times fully advised as to everything which concerns its condition, or which may be expected to alter that condition. We would not hesitate to hold it a legitimate charge against a corporation if directors should send to every stockholder a printed copy of a report as to its condition, or even as to general conditions of the industry in which it operated, so that all might be advised as to what environment, favorable or adverse, surrounded it, in the hope that some of them might thereby be stimulated to thought and suggestion by which the corporation might itself be profited. The holding that notification of a proposed scheme such as we have here is one which the directors ought to give is determinative of this case. Whether the notice shall be long or short, in what form of words it shall be couched, whether it shall be sent by mail or advertised in newspapers are matters of detail, which should be left to the directors. Certainly the innocent party who undertakes to publish such a notice should not be mulcted because, besides giving notice of the proposed scheme, it also gives the names of individual directors who favor it, nor because it is unnecessarily verbose. The judgment should be reversed, and the cause remanded for a new trial. (135 Fed. 344.) THE STEINWAY. CITY OF NEW YORK v. NEW YORK & E. R. FERRY CO. (Circuit Court of Appeals, Second Circuit. January 6, 1905.) COLLISION-STEAMBOAT AND FERRYBOAT CROSSING-STEAMER TOO CLOSE IN SHORE. A steamboat proceeding through Hell Gate toward New York held solely in fault for a collision with a ferryboat which had just left her slip at Astoria, on the ground that she was proceeding too close inshore as she rounded Hallett's Point, and also for not keeping her course under the starboard-hand rule, although the ferryboat gave the proper signal, and her course indicated that she intended to pass under the steamer's stern, as required by the rule. Appeal from the District Court of the United States for the Southern District of New York. Appeal from a final decree of the District Court for the Southern District of New York dismissing the libel of the city of New York, brought to recover damages for injuries received by the libelant's steamer Fidelity in a collision with the respondent's ferryboat Steinway, near her slip at Astoria, East River. The testimony was all taken in the presence of the judge. The opinion below is reported in 130 Fed. 397. E. Crosby Kindleberger, for appellant. Before LACOMBE, TOWNSEND, and COXE, Circuit Judges. COXE, Circuit Judge. The collision occurred near the Astoria Ferry slip at half past 12 on the afternoon of October 22, 1902. The day was clear, the tide ebb, the wind fresh from the southwest. The Fidelity, bound down the river through the western channel between New York and Blackwell's Island, rounded Hallett's Point only 50 feet from the shore, proceeding at the rate of about 10 miles an hour. At this time the Steinway was emerging from her slip intending to make a trip to New York. Her speed was about 8 miles an hour. The rules applicable to this situation are as follows: "Art. 19. When two steam-vessels are crossing, so as to involve risk of collision, the vessel which has the other on her own starboard side (The Steinway) shall keep out of the way of the other." (The Fidelity.) "Art. 21. Where by any of these rules one of two vessels is to keep out of the way, the other (The Fidelity) shall keep her course and speed. "Art. 22. Every vessel (The Steinway) which is directed by these rules to keep out of the way of another vessel shall, if the circumstances of the case admit, avoid crossing ahead of the other." Act June 7, 1897, c. 4, 30 Stat. 96, 101 [U. S. Comp. St. 1901, pp. 2875, 2883]. The inspectors' rule No. 2 provides that the steam vessel having the other on her starboard side shall indicate by one blast of her whistle her intention to direct her course to starboard and two blasts if directing her course to port, to which the other shall promptly respond. It was the manifest duty of the Steinway to avoid crossing ahead of the Fidelity and to keep out of her way. It was equally the duty of the Fidelity to maintain her course and speed. This she did not do. The district judge has so found and, as he had the advantage of seeing and hearing the witnesses, his conclusions upon disputed facts should not be disturbed. That the Fidelity changed her course in direct violation of the rule seems manifest. From Hallett's Point her course was laid for a point 200 feet west of Blackwell's Island. The collision occurred opposite the marble yard from 100 to 200 feet from the Astoria shore, a point which it would have been impossible for the Fidelity to reach had she held her course. Instead of being 150 feet from the shore she would have been well out in the river. Her initial fault was rounding Hallett's Point within 50 feet of the shore. She knew that she was entering Hell Gate, the most dangerous bit of water surrounding New York Harbor; she knew that a few hundred feet below there was a ferry slip where it was quite likely a ferryboat was going out or coming in; she knew that these boats require, and are allowed, ample space in which to maneuver in the vicinity of their slips (The Breakwater, 155 U. S. 252, 15 Sup. Ct. 99, 39 L. Ed. 139) and yet she shaved the shore so closely that it was not possible to get an accurate view of the situation on her port hand until she had actually rounded the point. Had she come down in the center of the river she could have |