tial relations, the rules of law, applicable to such cases, are much more strict than in the ordinary dealings between independent and equal parties, where there is a merely technical defect of power, or where it is the policy of the law to uphold the transaction. In all dealings between persons in confidential relations, or having just emerged from them, the policy of the law is to look with great suspicion on the transaction. In the classification of the books, such transactions, however innocent, are called constructive frauds. For a general and succinct statement of the conditions necessary to make a confirmation valid, see Lewin on Trusts, 390, also edition of 1857, of same book, page 778. 1st. The onus of proving all the conditions necessary to make a valid confirmation, is upon the party claiming its benefit. Hill on Trustees, 827. Bennett v. Colley, 2 Mylne & Keen, 232. 2d. The confirmation must have been given by a party competent to make a valid act of confirmation, not by a person not sine juris, or a minor, etc. Lewin on Trusts, 390. If the confirmation be by a body of the stockholders, it must be shown that those who united in the act were competent to bind the others. Is not the assent of all required in such a case? See, as to creditors, Davone v. Fanning, 2 Johns Ch. Rep., 264, exparte James 8, Ves. 337, and Lewin on Trusts, 391, as to a class of persons and laches as applicable to them. Should not specific and definite notice, that the matter was to be acted on, be required to be given to a minority in respect to a transaction, so much out of the ordinary course of business, and with a person in a situation of trust and confidence? Does not the duty of disclosure require, that a trustee, participating in calling a meeting, at which he intends to seek a ratification of such a transaction, should give express notice to the stockholders, that the matter was to be acted on? Would anything less than such notice be uberrima fides! It is the better opinion, that even the common law rule, in cases where the charter is silent, requires, that if the corporation is composed of a definite number, a majority of all the stockholders is necessary to form a quorum. Angel & Ames on Corp. (Ed. of 1858), sec. 501. 3. The act of confirmation must be deliberate, plain and distinct, (Morse v. Ropal, 12 Ves. 337), with knowledge that it will have the effect, [2 Sch. & Lef. 474, Murry v. Palmer,] and with intent that it should have that effect. Mallony v. L'Estrange, Beatly, 413. 4. The confirmation must not have been made in pursuance of the original transaction, (Wood v. Downes, 18 Ves. 125), or under the influence of that transaction, (Crowe v. Ballard, 1 Ves. 215), or of the same circumstunces which produced that transaction; (18 Ves. 125), (Roche v. O'Brien, 1 Ball & Beatty, 338), (Gawtand v. De Faria, 17 Ves. 25), otherwise, it will not be a confirmation, but merely a continuation of the original fraud. Lewin on Trusts, 391. Dunbar v. Tredennick, 2 Ball & Beatly, 317. 5. The party giving the confirmation, must have done so after having full knowledge of his legal rights, of his power to disaffirm the former transactions, and to be relieved therefrom on application to a court of equity. Lewin on Trusts, 390. Hill on Trustees, 525. Story's Equity, Sec. 345. Cockerell v. Cholmely, 1 Russ. & Mylne, 425. Fish v. Miller, 1 Hoff. R. 280. 2 Ball & Beatly, 317. 2 Sch. & Lef. 479. Bennett v. Colley, 2 Mylne & Keene, 242. 1 Vesey, (Sumner's Ed.) 320, and notes. 6. The party giving the confirmation must have done so after having full knowledge of all the material facts of the case. 1 Hoff. R. 280. Farnam v. Brooks, 9 Pick. 234. Austwick v. Maddeford, 1 Simmons, 89. Hill on Trustees, 525-7. 65 Law Lib. 165. 2 Sch. & Lef. 474. 2 Dev. Ch. R. 195. 1 Russ. & Mylne, 425. Bell v. Webb & Mong. 2 Gill. 170. When a trustee seeks from his cestui que trust a confirmation, the same principles apply as in any other dealing between such parties, and all the rules heretofore stated become applicable to the attempted confirmation; all the conditions in respect to disclosure, to take advantage of his situation to advise, and to adequacy of consideration, are to be proved affirmatively by the trustee, as in any other case of such dealings. The defendants in this case, have omitted no opportunity of parading before the public, with marked ostentation, and impressing the statement upon the court, that, out of the large number of shareholders of the G. & C. U. R. R. Co., who held stock in that road on the 1st of June, 1864, a great majority have been induced to exchange their stock, and become stockholders in the consolidated C. &. N. W. R. Co. Would it not be quite as appropriate to explain how, and under what circumstances they did this? The defendants here assume that all the stockholders in question, were, at the time when they exchanged their stock, fully acquainted with all of the terms of the sale and consolidation; but have these terms ever been made known to the stockholders, and if so, when, where and by whom? Were the stockholders informed of the authority under which the directors pretended to act, and did they know what the debts and liabilities of the C. & N. W. R. Co. were? Did they know of the purchase of the Kenosha & Rockford Railroad by the C. &. N. W. R. Co. at a mere nominal amount, and its sale to them for $1,400,000 of stock and $400,000 of bonds? Did they know that the Peninsula R. R. of Michigan was to be heaped upon them with all its debts and liabilities, on the terms which have been made known since the commencement of this suit? Did the stockholders of the G. & C. U. R. R. Co., who were induced to exchange their stock know what the capital stock of the C. & N. W. R. Co. was, and can any man tell to-day? Did they know what its debts and liabilities were then, and can any man tell to-day? Did any man know what the capital stock of the Peninsula R. R. Co. was then, and can they tell to-day? Did they know what its debts and liabilities were then, and can any man tell to day? Were they informed of what their legal rights were, and of all of the facts pertaining to the consolidation? And were those stockholders aware when they made their exchange, that they were conveying their stock to Wm. B. Ogden and Samuel J. Tilden, in trust for the C. & N. W. R. Co., and that they were to keep that stock alive; and the very certificates of the capital stock of the G. & C. U. R. R. Co., uncancelled, in order to complete the consolidation, if legal, and to control the stock if illegal? How many stockholders of the G. & C. U. R. R. Co. will now step forward and say, that they ever constituted William B. Ogden and Samuel J. Tilden their trustees for the purposes claimed by the defendants, in their answer in this case? From facts within our possession, we hazard nothing whatever in saying, that we do not believe that one out of a hundred of the stockholders of the G. & C. U. R. Co. knew anything whatever of the real facts and circumstances attending the sale and consolidation, or knew the terms upon which it was made, and that they will be filled with astonishment and surprise when they learn that they have appointed Wm. B. Ogden and Samuel J. Tilden their trustees, for the purpose of holding their stock and of perfecting this consolidation which it is now admitted, has not yet been completed. A more extraordinary transaction, when taken in the aggregate and in detail, cannot be found in the history of any country, and until it has been fully completed and confirmed, both by the stockholders, with a full knowledge of their rights, and by this court in like manner, it will be a subject of doubt and distrust. What boldness and audacity could accomplish has already been accomplished; but the law can neither be disregarded with impunity or justice be overawed by the magnitude of the interests involved. "Of Law, there can be no less acknowledged than that her seat is the bosom of God, her voice the harmony of the world; all things in heaven and earth do her homage, the very least as feeling her care, and the greatest as not exempted from her power." XXIX. The Consolidation, according to the defendant's own showing, is a NUDUM PACTUM. We have hitherto treated this subject upon the hypothesis that the consolidation of the G. & C. U. R. R. Co. had actually taken place, although unauthorized. We do not intend, however, to 1 est this case upon that hypothesis alone, for it now appears, by the defendant's own showing, that no consolidation, whatever, has ever taken place. It now appears that, notwithstanding the G. & C. U. R. R. Co. was, on the first of 1864, seized by the C. & N. W. R. Co., and all of its property taken and appropriated to its use, by the collusion of a board of directors whose duty it was to preserve and protect it, and notwithstanding certain rites and ceremonies were performed over its body, which they called consolidation, yet it was, nevertheless, nothing but the enactment of a gorgeous pageant, and that the entire capital stock of that company is still preserved, and has never been blended with that of the C. & N. W. R. Co. at all; and so complete is this preservation maintained, that even the very certificates of stock are now in possession of William B. Ogden and Samuel J. Tilden, and could be put on the market and sold to-morrow without human prevention. The theory of a consolidation is, as we suppose, that the capital stock and all of the rights, privileges and franchises of the two corporations become blended together, and when so blended eo instanti, that instant a new corporation is created by the power of |