spection of the plaintiff's engineers, and all his work was done under their eyes, and he could only receive his pay on their certificate of work done and inspected. The language of his agreement is that if any parts thereof-that is, the pavement-"shall become defective from imperfect or improper material or construction," he will repair. Noevidence was offered that any of the material was imperfect or improper when placed there, or that any of this construction was improperly or defectively done. We think this was necessary to enable plaintiff to recover. It will not be presumed that because the work needed repair within three years that the material furnished by plaintiff was originally imperfect, or that the construction was not well done. The pavement may have become defective from improper and rough usage, from permitting water to stand on it and produce decay, or, what is far more likely, from the inherent inability of the Miller wood pavement to resist the usual disintegrating forces to which all pavements are subjected. Against this defendant did not warrant, and for its consequences he did not agree to become responsible. In the absence, therefore, of any evidence that the pavement. became defective within three years from imperfect or improper material or construction used by defendant, there was no case against. him, and the direction of the judge was correct.

The judgment of the supreme court of the District of Columbia is therefore affirmed.

(110 U. S. 174)

REDFIELD, Ex'x, and another, Ex'r, v. YSTALYFERA IRON Co.

(January 21, 1884.)

INTEREST ON VERDICT-LACHES.

Interest upon a verdict is to be regarded as compensation for delay in payment of the sum found due, and it will not be allowed upon a merely formal verdict taken by consent, subject to the opinion of the court, where the delay in the submission of the case for final decision is due to the laches of the party claiming the interest.

In Error to the Circuit Court of the United States for the Southern District of New York.

Sol. Gen. Phillips, for plaintiff in error.

A. W. Griswold, for defendant in error.

MATTHEWS, J. This action was begun on December 30, 1854, in the supreme court of New York by the defendant in error to recover from the collector of the port of New York money alleged to have been illegally exacted by him for customs dues and paid under protest. It was removed by certiorari to the circuit court of the United States for the southern district of New York, in which, on December 15, 1856, the testimony having been heard, it appears by the record that "by

direction of the court and consent of counsel the jury find a verdict for the plaintiff in the sum of fifteen hundred dollars, subject to the opinion of the court upon a case to be made, with liberty to either party to turn the same into a bill of exceptions, and subject to adjustment at the custom-house as to the amount. The next step in the cause taken in court was on June 9, 1882, when, on motion of the plaintiffs' attorney, the plaintiffs in error, as personal representatives of the defendant, who had died, were made parties. And then, on January 19, 1883, it was ordered that the case, of which it appeared a copy had been served by the plaintiffs' attorney on the United States attorney in January, 1857, be considered as having been then agreed upon and settled between the parties, and that the same be filed in the office of the clerk as part of the record in the case. On April 30, 1883, the cause was heard upon that case made and served pursuant to the verdict of December 16, 1856, and it was thereupon ordered that judgment be entered on the verdict for the sum of $715.70, with interest thereon from December 8, 1854, and for costs; and on August 22, 1883, a formal judgment was entered against the plaintiffs in error for the said sum and interest, as aforesaid, amounting to $2,128.16 damages, besides costs. To reverse that judgment this writ of error is prosecuted.

ror.

The case made, which by the terms of the verdict either party was at liberty to turn into a bill of exceptions, sets forth the entire evidence adduced at the trial, but is not an agreed statement of facts, nor a special verdict, nor a finding of facts by the court, and contains no exceptions. It cannot, therefore, be treated as the basis for any assignment of errors, and the questions argued, as if arising thereon, must be dismissed without further consideration. We are of opinion, however, that the court erred in allowing interest from December 8, 1854, until the entry of judgment on August 22, 1883,-a period of nearly 29 years,-upon the amount found due to the defendant in erThe delay in the prosecution of the suit must be attributed to the plaintiff below. It was the actor, and had come into court for the purpose of asserting and enforcing a right which the defendant below contested and denied, and which it was necessary to determine and ascertain. The verdict was purely formal, and was entered by consent, after the hearing of the evidence, merely as a basis for further proceedings, which were to consist in an adjudication by the court of♫ the questions of fact and law arising upon the testimony, and liquidation of the amount to be recovered in case the legal liability was found to exist. No step for this purpose was taken by the plaintiff after January, 1857, when he served upon the defendant the case made, until January, 1883, when he procured the order to bring into court and file it,-a period of 26 years. In the mean time the suit had abated by the death of the defendant, having been revived in the names of his personal representatives in June, 1882, after a lapse of

what period since the defendant's death the record does not disclose.. This delay in prosecution would certainly have justified the court in dismissing the action on its own motion. So far as the rights of third parties might have been affected by it, as a lis pendens, it had lost its force without such a dismissal; for, as to innocent strangers, acquiring interests to be affected by it, it would have been treated as abandoned and obsolete. Fox v. Reeder, 28 Ohio St. 181. There is nothing in the record, by which alone we must be governed, to show any reasonable excuse for the unusual and extraordinary delay in the progress of the suit; and that delay, as we have said, must be attributed to the defendant in error.

Interest is given on money demands as damages for delay in payment, being just compensation to the plaintiff for a default on the part of his debtor. Where it is reserved expressly in the contract, or is implied by the nature of the promise, it becomes part of the debt, and is recoverable as of right; but when it is given as damages it is often matter of discretion. In cases like the present, of recoveries for excessive duties paid under protest, it was held in Erskine v. Van Arsdale, 15 Wall. 75, that the jury might add interest, the plaintiff ordinarily being entitled to it from the time of the illegal exaction. But where interest is recoverable, not as part of the contract, but by way of damages, if the plaintiff has been guilty of laches. in unreasonably delaying the prosecution of his claim, it may be properly withheld. Bann v. Dalzell, 3 Car. & P. 376; Newel v. Ex'r of Keith, 11 Vt. 214; Adams Exp. Co. v. Milton, 11 Bush, 49.

The statute of New York allowing interest on verdicts, relied on in argument as applicable, was intended for the government of the ordinary practice of the court, and cannot furnish the rule for a casethat is excepted from it by the unexplained negligence and delay of the plaintiff. The verdict, indeed, in the present instance was purely formal, as much so as the penalty of a bond which does not represent the amount equitably due, but stands only as security for it. In ordinary practice it may be convenient, and certainly would not be improper nor unjust, that interest properly allowed on the real amount subsequently ascertained should be calculated from the date of such a verdict; but in such cases it is not interest on the verdict in fact, because, until the amount is liquidated by the subsequent action of the court, there is no sum certain due on which interest could be computed. The finding of the court fixing the amount due, is, in fact and in contemplation of law, the equivalent for the verdict of the jury, upon which interest may be allowed; and when that has been, as in the present instance, unreasonably delayed by the neglect of the plaintiff, he cannot justly claim interest by way of damages for delay which has been altogether his own. The date of the order for judgment in the present case is April 30, 1883, from which time only interest should have been allowed.

For this error, accordingly, the judgment is reversed, with costs in this court, and the cause remanded, with instructions to enter a judgment for the defendant in error for the sum of $715.70, with interest thereon from April 30, 1883, together with costs in the circuit court.

(110 U. S. 209)

DIMPFEL and another v. OHIO & M. Rr. Co. and others.

(January 21, 1884.)

STOCKHOLDERS IMPEACHING ACTION OF DIRECTORS-PREREQUISITES.

A stockholder in a corporation cannot set aside the transactions of its directors unless he held his interest at the time of the proceeding complained of, nor unless he has exhausted all the means within his reach to obtain redress without resort to a court of law.

Appeal from the Circuit Court of the United States for the Southern District of Illinois.

C. W. Hassler and Thos. N. McCarter, for appellants.
Edgar M. Johnson and Benj. Harrison, for appellees.

FIELD, J. This suit was brought to set aside a contract by which the Ohio & Mississippi Railway Company became the owner of a portion of its road known as the Springfield Division, and to obtain a decree from the court declaring that the bonds issued by the company, and secured by a mortgage upon that division, are null and void. It was commenced by Dimpfel, an individual stockholder in the company, who stated in his bill that it was filed on behalf of himself and such other stockholders as might join him in the suit. Callaghan, another stockholder, is the only one who joined him. The two claim to be the owners of 1,500 shares of the stock of the company. The whole number of shares is 240,000. The owners of the balance of this large number make no complaint of the transactions which the complainants seek to annul. And it does not appear that the complainants owned their shares when these transactions took place. For aught we can see to the contrary, they may have purchased the shares long afterwards, expressly to annoy and vex the company, in the hope that they might thereby extort, from its fears, a larger benefit than the other stockholders have received or may reasonably expect from the purchase, or compel the company to buy their shares at prices above the market value. Unfortunately, litigation against large companies is often instituted by individual stockholders from no higher motive. But assuming that the complainants were the owners of the shares held by them when the transactions of which they complain took place, it does not appear that they made any attempt to prevent the purchase of the additional road, and the

issue by the company of its bonds secured by a mortgage on tha's road. We are not informed of any appeal by them to the directors to stay their hands in this respect, nor of any representation to them of a want of power to make the purchase and issue the bonds, nor of any probable injury which would arise therefrom. The purchase was made in January, 1875, and this suit was not commenced until September 12, 1878. In the mean time, the new road purchased was operated as an integral part of the line of the Ohio & Mississippi Railway Company, without objection from any stockholder. During these three years and eight months the earnings of the new road went into the treasury of the company, and the bonds issued upon the mortgage of that road, executed by the company in payment of its purchase, passed into the hands of parties who bought them on the faith of contracts which had been carried out without complaint from any one. Objections now come with bad grace from parties who knew at the time all that was being done by the company, and gave no sign of dissatisfaction. The purchase and the issue of the bonds were public acts known to them, and presumably to all the stockholders.

A stockholder must make a better showing of wrongs which he has suffered, and also of efforts to obtain relief against them, before a court of equity will interfere and set aside the transactions of a railway company or of its directors. It is not enough that there may be a doubt as to the authority of the directors or as to the wisdom of their proceedings. Grievances, real and substantial, must exist, and before an individual stockholder can be heard he must show, in the language of this court, that "he has exhausted all the means within his reach to obtain, within the corporation itself, the redress of his grievances or action in conformity to his wishes." Hawes v. Oakland, 104 U. S. 450. In that case the court added that the efforts to induce such action as he desired on the part of the directors or of the stockholders, when that was necessary, and the cause of his failure, should be stated with particularity in his bill of complaint, accompanied with an allegation that he was a stockholder at the time of the transactions of which he complains, or that his shares have devolved on him since by operation of law. According to the rule thus declared, and its value and importance are constantly manifested, the complainants have no standing in court, and the demurrer was properly sustained for want of equity in the bill.

This view renders it unnecessary to consider whether, as held by the court below, the railway company had the right to acquire the Springfield Division and to execute the mortgage and issue the bonds mentioned by virtue of the legislation of Illinois. The complainants have not shown any ground which would justify the court, on this application, to inquire into the validity of the transaction. Decree affirmed.