but after a most careful and exhaustive review of the authorities, concluded that with great respect to the decision in 210 U. S. 206, it was 66 constrained to adhere to the law as laid down in the earlier cases in this Commonwealth." The court after deciding that Bigelow would have been liable even if the transaction had been consummated before the 20,000 shares were issued to the subscribers, pointed out that while the resolution to purchase the mines of the promoter was passed on July 11th, 1895, when only 40 shares of stock had been subscribed for or issued, the purchase was not consummated until December, 1895, and January, 1896, when the deeds were delivered to the plaintiff; that the certificates in payment of these conveyances were issued on September 18th, 1895, while the subscription list for the 20,000 shares was dated July 18th, 1895, and some of the subscriptions were paid at least as early as September 10th. The full court, by a vote of four to three, affirmed the judgment of Sheldon, J., who was himself one of the four judges voting for affirmance. The Old Dominion Copper Company thereupon again turned its attention to its claims against Lewisohn. The previous decisions of the Federal courts had only disposed of the action based upon the acquisition of the "outside properties," the action relating to the properties of the Maryland Company having remained quiescent since its inception in or about the year 1902. The bill of complaint in that action was then amended so as to avoid stating that the complainant had entered into possession of the property of the Maryland Company on July 12th, 1895, and by inserting an allegation setting forth the defendants' original promise to the public to form a corporation with a capital of $2,500,000 only, and their violation thereof to the defendants' benefit and advantage. Evidence having been introduced, the case came on for final hearing before Hough, J.11 who held that admitting that Bigelow and Lewisohn had said to the members of their syndicate that the 41. 195 Fed. Rep. 637. company in contemplation would be capitalized at $2,500,000, there was no evidence that such a statement was, in respect to any person, an enforceable legal obligation. In relation to the amendment as to the consummation of the transaction between Bigelow, Lewisohn, and the company, the court held that as Bigelow and Lewisohn, on July 12th, 1895, owned all the stock of the Maryland Company, and were also the only shareholders in the complainant company, their agreement, made on that day, to transfer the property of one company for a certain number of shares of the other, constituted an enforceable contract and that the transaction was then substantially consummated, though the legal title was not transferred until a later day.12 The decree dismissing the bill of complaint was affirmed by the Circuit Court of Appeals on the ground that the suit relating to the "outside properties" was between the same parties, related to the same breach of fiduciary relation, involved the same questions, and was res adjudicata of the controversy. Judge Coxe thought that the difference between the facts before the court and the facts considered by the Supreme Court of the United States in the suit relating to the "outside properties" were inconsequential. Judge Noyes, however, said that the status of the corporation in respect to the presence of innocent interests, must be determined as of the time of the consummation of the transaction; that until the promoters took something from the corporation and thereby made profits there were none to be accounted for; that the agreement of July remained executory until the stock was issued to the promoters in September, and that until then the corporation had no cause of action against them; that when the contract was so carried out that the corporation had ground of complaint, the interests of third parties had become involved; that the crucial question was not whether innocent inter 42. Garretson V. Pacific Crude Oil Co., 146 Cal. 184, 79 Pac. 838, is in point on this question. ests were involved when the agreement was entered into, but whether they were involved when it was carried out. Judge Noyes concurred in the affirmance of the judgment of the Circuit Court on the ground that the defense of a former judgment had been established.48 The defendant Bigelow appealed to the Supreme Court of the United States, from the judgments entered against him in Massachusetts, claiming that the courts of that state had not given, to the judgment of the Federal courts in favor of Lewisohn, that full faith and credit required by the Constitution of the United States. This contention was overruled and the judgments against Bigelow affirmed. 44 The Old Dominion Copper Company applied to the Supreme Court of the United States for a writ of certiorari to the Circuit Court of Appeals, to review its affirmance of the decree dismissing the amended bill of complaint in the second action against Lewisohn. This application was denied.45 § 129. The same subject.-Subsequent decisions. These Old Dominion Copper Company litigations involve a fundamental question which is bound to arise in many future litigations. Whether the decisions of the Federal courts or those of the Massachusetts courts will be more generally followed, one can scarcely hazard an opinion. Mason v. Carrothers 46 was decided after the decision of the Supreme Court of the United States in the Lewisohn case, and between the first and second decisions of the Massachusetts Supreme Court in the Bigelow case. The promoters had in Mason v. Car 43. Old Dominion Copper, etc., Co. v. Lewisohn, 202 Fed. Rep. 178, 120 C. C. A. 392. 44. Bigelow v. Old Dominion Copper, etc., Co., 225 U. S. 111, 32 Sup. Ct. 641, 56 L. Ed. 1009, Am. & Eng. Ann. Cas., 1913 E. 875. 45. Old Dominion Copper Co., etc., v. Lewisohn, 229 U. S. 613, 33 Sup. Ct. 772, 57 L. Ed. 1352. 46. 105 Me. 392, 74 Atl. 1030. rothers sold certain patents to the corporation, receiving in payment substantially all of the common stock and $100,000 par value of preferred stock. Another $100,000 par value of preferred stock remained in the treasury and was sold by subscription to outside parties. The court pointed out the distinction between a case where all the stock is issued to the promoters and a case where there are future innocent purchasers of shares directly from the treasury; stated that the decision of the United States Supreme Court in the Lewisohn case rested upon its own authority and conflicted with the decision of the Supreme Court of Massachusetts which had carefully analyzed and distinguished all of the cases cited as authority by the Supreme Court of the United States, and added that if it were necessary to choose between the two decisions it would adopt the one best fortified by reason and authority. The court said that this was unnecessary, as the case before it was brought by the subsequent bona fide purchasers of stock and not by the corporation, and that the Supreme Court of the United States, while denying relief to the corporation, had intimated that subsequent purchasers might have a right to relief because they were the parties wronged. The learned judge apparently misapprehended the meaning of the Supreme Court. What Justice Holmes intended was, not that the court might have sustained an action brought on behalf of the corporation by a subsequent purchaser of treasury stock suing as a minority stockholder-for the right of the plaintiff would in such action be no greater than that of the corporation,17-but that if V. Fair 47. Federal.-Whitney banks, 54 Fed. Rep. 985. California.-Turner v. Markham, 155 Cal. 562, 570, 102 Pac. 272. New York.-Continental Securities Co. v. Belmont, 206 N. Y. 7, 99 N. E. 138, 51 L. R. A. N. S. 112, Am. & Eng. Ann. Cas., 1914 A. 777, affirming, 150 App. Div. 298, 134 Supp. 635; Averill v. Barber, 25 Wisconsin.-Jenkins v. Bradley, 104 Wis. 540, 551-552, 80 N. W. 1025, 1028. United Kingdom and Colonies.Burland v. Earle, 1902 App. Cas. 83, 93. there was a wrong to anybody, it was to the subsequent subscribers individually, and that the remedy, if any, was personal to them. Mason v. Carrothers, however, indicates that the courts of Maine will, when the question arises, follow the ruling of the Massachusetts courts. New Jersey also 48 will presumably follow the same ruling. In Hughes v. Cadena DeCobre Mining Co.,49 the Supreme Court of Arizona followed the decision of the Supreme Court of the United States as binding upon the territorial court. New York seems to follow the Supreme Court of the United States.50 California seems to adhere to the distinction between the rights of persons subsequently purchasing shares from the promoters, and the rights of persons subsequently obtaining shares from the corporation itself.51 § 130. The same subject.-Discussion. If one may be permitted to express an opinion on the merits of a question upon which the highest courts in the land disagree, it is, after much hesitation, suggested that the decision of the Supreme Court of the United States is on the whole to be preferred.52 The decision of the Supreme Court of Massachusetts is, it is true, best supported by authority.5 There is, however, as pointed 53 48. See Arnold v. Searing, 78 N. J. Eq. 146, 161-162, 78 Atl. 762; Bigelow v. Old Dominion Copper, etc., Co., 74 N. J. Eq. 457, 71 Atl. 153. 49. 13 Ariz. 52, 65, 108 Pac. 231, 236. 50. Continental Securities Co. v. Belmont, 168 N. Y. App. Div. 483, 154 Supp. 54. See also Watkins v. Mills, 114 N. Y. App. Div. 903, 100 Supp. 1148, discussed in § 127, ante. 51. California-Calaveras Mining Co. v. Walls, Cal., 149 Pac. 595. This case might well have been decided upon the ground that innocent parties had acquired an equitable interest in the shares before the transaction complained of, but the court apparently based its decision upon the fact that a subsequent sale of treasury stock was contemplated at the time. 52. For a consideration of the same decisions from a different aspect see ante, § 123. 53. For cases supporting the decision of the Massachusetts court, |