The opinion of the court was delivered by

This bill prays for an injunction to restrain the railroad company from paying out any of the bonds which have been issued by the county in payment of a subscription to the stock of the company. The Act of Assembly of 4th May, 1852, authorizing the constituted authorities of the county to subscribe to the stock, declares that the subscription to be made “ shall be made subject to the following restrictions, limitations, and conditions, and in no other manner or way whatever, viz., all such subscriptions shall be made by the county commissioners of the county subscribing, and shall be made by them, after and not before, the amount of such subscription shall have been designated, advised, and recommended by a grand jury,” and “ the amount of such subscription ordered and designated as aforesaid may be made payable either in money or in the bonds” of the county so subscribing. At the May Sessions of the Court of Quarter Sessions of Mercer county, 1852, the grand jury signed a paper in which they state that they “would recommend the commissioners of Mercer county to subscribe to the capital stock” of the company *401“ to such amount and under such restrictions as may be required by the Act of Assembly authorizing them to subscribe stock to said road, to an amount not exceeding 150,000 dollars.” Under this authority two of the commissioners subscribed toK the stock of the road to the amount of $150,000, and bonds have been issued and delivered to the railroad company, in payment of the subscription. $65,100 of these bonds have been paid to S. P. Johnson & Company, on account of work under their contract. The residue of the bonds, to the amount of $84,900, remain in possession of the railroad company.

It is impossible to read the Act of 4th May, 1852, without perceiving that all discretionary power touching the subscription to the stock was given exclusively to the grand jury. They were directed to “ designate the amount of the subscription to be made, and when they did so designate the amount, and “ advise and recommend” the subscription, it was imperative upon the commissioners to obey. The language of the act is that the subscription “shall be made” by the county commissioners. The mandate is repeated in the clause declaring that the subscription shall be made after “the grand jury have designated, advised, and recommended” the amount. It is indicated in the express prohibition of any subscription before the amount is so designated by the grand jury. It is plainly proclaimed in the preliminary clause declaring that the subscription shall be made subject to the “ restrictions, limitations, and conditions” specified in the act, “ and in no other manner or way whatever.” That the action of the grand jury was intended to be mandatory — a command and not merely an authority — is manifest from what has already been said. The “advice and recommendation” of the grand jury was to be regarded as an order, which the commissioners were not at liberty to disobey. This is the plain meaning of the act. It breathes through every word, and speaks out in every line. As if to leave not a particle of doubt on this question, the legislature, in a subsequent part of the act, speak of the amount of such subscription as “ ordered and designated as aforesaid.” It follows that the commissioners had no discretionary authority whatever in the matter; they were merely permitted to hold the pen, and to write precisely what they were directed by the grand jury to write. Nothing more — nothing less. We can readily see many good reasons for this. The commissioners are selected so long in advance of the decision to be made, that all persons who may be disposed to apply improper influences have abundant opportunities of doing so. They are but three in number, and two of these might decide the fate of the county. These two might lack the wisdom necessary for such an important measure. They might also lack the integrity required for such a high trust. It is not necessary to deal in ambiguous language when discussing such a subject. From the beginning of *402the world to the present time, history has been teaching her lessons of human frailty, beguiled and corrupted by human wickedness. It. is fair to presume that these lessons were not lost on the legislature. Although they could not distinctly see the wily serpent of corruption, the waving of the grass often indicated his stealthy course. It is therefore not improbable that one of the objects of the restrictions in the Act of 1852 was to guard against bribery. Whatever may have been the motive, the legislature were unwilling to place the fortunes of a whole county at the disposal of two county commissioners. I do not regard the declarations of Pennock, one of the county commissioners who issued these bonds, as legal evidence to convict the railroad company of bribery. But his declaration, after the subscription had been made, and after the work had been allotted to the contractors, that he “ had not got work — that he had not yet signed the county bonds, and would not unless he got work on the road,” and the two events which followed this unblushing admission, viz.: his signing the bonds and getting work on the road, are certainly high evidence of his unfitness for the trust, and of the wisdom of the legislature in refusing to trust him with any discretion whatever on the subject. The grand jury are not so readily influenced by improper suggestions. They are selected for their judgment and integrity, and come from all parts of the county, without respect to party politics. They are exposed to temptation for too brief a period to be safely approached — they are too numerous to be easily led away from their duty by “ vfork” on a railroad, or by any other improper considerations. In the multitude of their counsel there is comparative safety. They are the usual agents of the county, when the question of erecting county buildings or county bridges is to be decided. These are some of the reasons which may have influenced the legislature in insisting that the amount of the subscription in this case should be “ designated” by the grand jury. But it is sufficient for the court to know that the law is so written and must be obeyed. It is a special authority, and must be strictly pursued. There is not a word in it which authorizes the grand jury to transfer from their own shoulders any part of the responsibility which the legislature plaeed there. An attorney without power of substitution eannot appoint an attorney in his place. Discretionary powers given to trustees will not pass to heirs, nor personal representatives, nor assignees, nor devisees, nor survivors: Hill on Trustees 488; 16 Ves. 44; 16 Ves. 45; 1 B. & Ald. 608; 2 Ves. 643; 2 Sim. 264; 2 Hare 200 ; 16 Ves. 22; 13 Sim. 91. They will not pass even to a new trustee appointed by a court of equity: Amb. 309. When the grand jury authorized the commissioners to subscribe any “ amount not exceeding $150,000,” they failed to execute the power conferred upon them. Such a proceeding was no designation of the amount — it was a plain transfer of that duty to the *403commissioners, giving them the discretion to subscribe $50 or $150,000, or any intermediate sum. This was precisely what was prohibited by the statute. As the legislature neither intrusted the commissioners with any such authority, nor authorized the grand jury to trust them with it, the conclusion follows that the subscription to the stock of the Pittsburgh and Erie Railroad Company has not been made by competent authority.

There is another objection equally fatal to the subscription by the commissioners. The laiv in existence at the time a contract is made, enters into and necessarily forms a part of it. In like manner, the law in force, when a proposal for a contract is made, always forms a part of it, and is the essential and true exponent of the intention of the party in making it. If the proposal be not accepted until the law under which it is made undergoes such a change that a subsequent acceptance would constitute a contract materially different from that intended when the proposal was made, it is manifest that the acceptance comes too late to bind the party. In such a case, the proposal falls with the repeal of the law which induced it. No contract can be made on the basis of it. The negotiations must commence de novo. The Act of 4th May, 1852, authorizing the county of Mercer to subscribe to the stock of the company, contained a proviso, which declared that the acceptance of that act by the company shall be deemed also an acceptance of the provisions of the Act of 11th March, 1851, entitled “An Act fixing the gauges of railroads in Erie county.” When the grand jury recommended the commissioners to subscribe, it was expressly required by them that the subscriptions should be made “ under such restrictions as may be required by the act of Assembly authorizing them to subscribe stock to said road.” So that the grand jury, not tacitly but expressly, required that the subscription should be made under the restriction that the Act of 11th March, 1851, fixing the gauges of railroads in Erie county, should be accepted by the Pittsburgh and Erie Railroad Company. This recommendation was made in May, 1852. Were the terms accepted by the railroad company ? Far from it. On the 18th January, 1853, the stockholders of the corporation, at a meeting called to take action relative to the county subscriptions "and the gauge law, unanimously repudiated the provision in the Act of 4th May, 1852, relative to the gauge law, and determined that “it was inexpedient” at that time “to accept the county subscriptions under this provision of said recited act.” The question of ultimate unconditional acceptance or rejection of the subscription was postponed for further consideration at some subsequent meeting. On the 11th April, 1853, the Act of 11th March, 1851 — called the Gauge Law — was repealed. On the 26th April, 1853, being fifteen days after the repeal, the railroad company passed a resolution, directing notice to be given to the commissioners that *404their subscription had been accepted. On the 5th July, 1853, Messrs. Waugh, Goodwin, and Hubbard were appointed a committee “ to secure the bonds of Mercer county at the earliest possible day.” They were accordingly secured before Mr. Pennock went out of office. If this constitutes a valid contract, the county is bound up to terms entirely different from those expressed and intended by her constituted authorities. If the transaction were between individuals, the subsequent assent to the acceptance, and the delivery of bonds in pursuance of it, would, of course, constitute a valid contract. But in this case, the grand jury alone possessed the power to hind the county; they made the original proposal, and they alone had authority to vary its terms and enter into a new contract binding on the county. It is not pretended that they have, directly or indirectly, done any act whatever tending to sanction or ratify the illegal proceedings of the commissioners and the railroad company. As the commissioners had no original authority to make the subscription, it is scarcely necessary to say that they possessed no power, by any subsequent action, to ratify their own unauthorized proceedings.

It is true that where an agent transcends his authority, it is the duty of the principal to disavow it as soon as it comes to his knowledge; otherwise he may be precluded from making objections afterwards, to the injury of persons who may have innocently invested their money on the faith of the acts of such agent. Where a class of persons, such as the citizens of a county, are interested, they cannot be expected to bring actions at law in the name of the county so long as the munipical rights are under the control of faithless agents, or until they have had an opportunity to remove them. But as every taxable inhabitant is interested in all measures which increase the taxes, he may apply for an injunction against abuses of that character. The taxable inhabitants of a county, although entitled to great indulgence on account of the limited interest which each one has in the question, may, nevertheless, be affected by delay and acquiescence. How far this principle may protect innocent holders of the county bonds already negotiated, will be a matter for consideration when the proper parties are before us. But, in regard to the bonds still in possession of the railroad company, the delay in making this application has worked no injury which the company have a right to complain of. They knew, or, what is the same thing, they were bound to know, that the subscription was not made by competent authority; and they also knew that the offer of the grand jury had not been accepted with any intention to comply with the terms upon which it was made. They are parties to the wrong, and have no right to profit by it. The allegation that the bonds have been pledged for work done, or to be done, on the railroad, is not sustained. It is not necessary to enter into the merits of *405the contract with what is called the firm of “ S. P. Johnson & Co.” Messrs. Waugh, Goodwin, and Gibson, were partners in that firm, and directors in the railroad company when the contract was made. Two of them were on the committee appointed to “secure” the bonds from the county, “at the earliest possible day.” That firm had, therefore, full notice of the manner in which the bonds were obtained. The contract to receive payment in county bonds, is neither an assignment nor a pledge of the bonds. They are still under the control of the corporation. The injunction may, therefore, operate on them without inconvenience to any one except the parties to the wrong.

For these reasons I am in favour of declaring that the bonds signed by two of the commissioners of the county of Mercer on the 8th October, 1853, still remaining in the possession of the Pittsburgh and Erie Railroad Company, amounting to the sum of $84,900, are null and void, and not binding on the said county of Mercer. I am also in favour of granting an injunction against issuing and paying out any of the said bonds; and directing that the same be delivered up and cancelled.

Mr. Justice Woodward concurs in the foregoing views, and Mr. Justice Lowrie unites in what is said in regard to the effect of the refusal to accept the offer to subscribe upon the terms under which it was made.

Injunction granted.

Concurring opinion by

When the law of 4th May, 1852, was passed, authorizing subscriptions by Mercer and other counties for shares in the capital stock of this railroad company, the legislature must be presumed to have known the legal character of the company, and to have acted with reference to it, for nothing in the act authorizes any other supposition.

It was a company chartered in 1846, in pursuance of a law that required that it should have a capital of not less than $750,000, and not more than $3,750,000, actually subscribed in shares of $50 each, and five per cent, of the amount subscribed actually paid in, before it should be entitled to its charter. It was therefore in a company appearing to have already individual stockholders who had subscribed stock to an amount not less than $750,000, that the legislature authorized Mercer and other counties to subscribe for shares of stock.

It is charged in this bill of complaint that, at the time the subscription was made by Mercer county, which is now sought to be avoided, the said company had in fact no stock at all subscribed, but that all that had been subscribed in order to obtain the charter had, by a secret agreement among the stockholders, and in fraud of the county, been suppressed, and that no assessments or calls had ever been made upon it.

*406If this charge contains any substantial truth, then of course there was such a change in the essential character of the company ; it became, by that act, so entirely different from what it was required to be by its charter, and what the legislature must have presumed .it to be, that it would not be entitled to the subscriptions which it might obtain under the powers intended to be granted by the law of 1852.

This, therefore, is an essential point of this case, and we proceed to examine it. The charge is not really denied in the answer, and we a.re referred to the records of the company for the facts, and as they furnish us with all that is needed, we shall confine ourselves to them.

When the charter was issued by the governor, there had been subscribed to the stock of the company the sum of $755,500, and' the sum of $37,775 was actually paid in. On the 11th February, 1850, they elected directors, and the board met and organized. For a year and a half afterwards they seem to have been making efforts to have the road located and the work on it commenced, but were unsuccessful. The reason of this appears in the minutes of 14th August, 1851, which show that the directors, who held all the stock but a very few shares, were unwilling to be called upon for their subscriptions, and determined not to let the work unless the contractors would receive payment for it by a transfer of the stock held by them. They then resolved that the stock of the original subscribers should be used in paying the contractors; and to protect the said subscribers from liability for their subscriptions until the same should be paid out and absorbed by the contractors, they further resolved that the original subscribers might transfer their stock to the secretary of the company, and that on doing so they should be released from all further liability for the same, and it should be held by the secretary in trust for the company. Some of the stock seems to have been assigned in pursuance of this resolution, for on the 24th December following it was directed to be reassigned, preparatory to the following very important proceedings.

On that day a total change was effected in the character and .organization of the company. Thirteen new members were admitted, by having twenty shares of the original stock transferred to each of them. Then, all the stock subscribed was transferred to them, and the original subscribers were released from all liability on account of the same. Then the $37,775, said to have been paid in before getting the charter, and which was considered in the hands of C. M. Reed, was settled, by releasing him from the same, and by authorizing the treasurer to receive from the thirteen new members their several equal notes, amounting in the aggregate to that sum (whether they were ever given or paid we know not), and thereupon they were elected directors of the company. In *407other words all the old stockholders cancelled their subscriptions, and withdrew, taking all the funds with them, and allowed thirteen strangers to step in a.nd take up the abandoned charter, divide the now nominal stock among themselves in about equal proportions, and without the payment of a dollar of stock, or subscribing to pay any, call themselves the Pittsburgh and Erie Railroad Company.

This was their condition when they directed their president to take the measures that resulted in obtaining the law of 4th May, 1852, for authorizing the subscriptions by the counties. Is it p wsible to suppose that the legislature intended to authorize the counties to subscribe stock to such a corporation ? Is it possible to suppose that the grand jury which sanctioned such a subscription, and the commissioners who made it, intended to involve the interest of the public in a company so unreal? No, it is not.

It might not be unreasonable to suppose that the county might safely subscribe $150,000 of its credit to a company which, according to law, appeared to have already obtained private subscriptions to more than five times that amount; for it might be presumed that, where so large a private interest was involved with that of the public in the same enterprise, there was a sufficient guaranty for the careful management of the whole. That the legislature should intend to authorize county subscriptions to be made to a company that had no real capital; that they should place the people’s money under the control of thirteen self-constituted directors, having no real interest in the intended object and representing none, and give the county investing $150,000 of capital, the nominal and futile influence of three directors, so that the whole control of the county funds should belong to those who had nothing to lose by bad management, is an idea too absurd to be admitted for a moment.

The subscription by two of the county commissioners of $150,000, is said to have been made in June, 1852; but it had a condition in relation to the interest that caused a delay in accepting it, and it was not accepted until 25th April, 1853, and the bonds were not delivered until September, 1853, when the directors on the part of the county were admitted to seats in the board. And here again appears the truly nominal character of the stock professed to be held by the thirteen directors. It was entirely under the control of the company, that is, nobody owned or had paid anything on it, and 3000 shares of it were transferred to the county. The county subscription was not treated as a real subscription, but as a means of taking up the old abandoned stock, and that was not at all the character of county subscription intended by the law.

That this company had no real capital appears from other subsequent parts of the minutes. On 5th July, 1853, they authorized *408some explorations, and directed the expenses to be paid by private advancements, which should be credited in stock subscribed or to be subscribed by persons making such advancements. On 2d August, 1853, they authorized the persons in whose names the stock stood on the books to transfer it to such persons as they should designate, to hold in trust for the company, and the persons to whom it should thus be assigned were to be entitled to vote upon it. In this connexion it is proper to notice that on the previous 18th January there appear to have been 12,366 shares represented and voting at a stockholders’ meeting, which would be equal to a capital stock of $618,300. It is used as'private stock when votes are wanted, and it belongs to the company when money is wanted.

Now it is absurd to say that the company may really be a stockholder in itself or own its own stock. If nobody else owns it, it is simply stock not taken. If we say that all shares are held by the corporation, or in trust for the corporation, then we say that there is no stock taken, there are no stockholders, no directors, and no company. And, so far as we can discover from the minutes, there was none at the time of the acceptance of the subscription of Mercer county.

On 25th August, 1853, we find the first call.made upon subscribers of stock to pay an instalment, and that is confined to subscribers for the branch road in Crawford and Warren counties, and to $50,000 of stock guarantied in some way by three persons named. In no part of the minutes do we discover that any instalments have ever been called in on the original stock, all of which was transferred to the directors. It was this stock that was used to be issued to contractors for their work, to counties for their subscriptions, and to landowners for the right of way. Of course that which was thus issued was paid up in full, and if the remainder belonged to the- company it was not stock at all, and therefore not subject to calls, and the holders of it were not stockholders, and therefore could not be directors. Even as late as June 13, 1855, this original stock seems to have remained in this condition, except so far as it had been transferred to the counties, contractors, &c., for then it appears that it was still in the hands of trustees for the company, and it was ordered that it should be assigned to and .for the use of the company within thirty days, and “ that all stock heretofore issued shall be considered. as of the said fund.”

Such is the character of this company, as exhibited by its own records, and we are constrained to say that it was not in favour of such a company that the legislature passed the Act of 4th May, 1852, authorizing county subscriptions. They were not in such a condition as entitled them to ask or accept such subscriptions, and *409they cannot enforce the payment of them, or make any use of the bonds of the county which were issued to provide for payment.

But it is argued that, because the county commissioners appointed directors in 1858, and also in 1855, who acted as such without raising any objection to the organization of the company, and because the county made no objection for more than two years after the delivery of the bonds, and because the work is one of great public importance, and the directors have been conducting it faithfully and energetically, and have made many contracts on faith in their right to the bonds, therefore equity will now hear no complaints on the subject.

Let us examine this argument. It is plain enough that, where the property of others has been wrongfully obtained, it is not an equitable answer to the claim for restitution, that the holders of it are doing what they can to make a good use of it. It is just as plain, that where one starts in business, and runs in debt on capital thus acquired, this does not bar the right of action of those from whom it was obtained. When persons become creditors of another on their faith in such illusive appearances of wealth, they acquire no claim against the wealth itself; for their trust is not in it, but in him, for the truth of his claim or title to it.

What is the effect of the delay of the plaintiff, for two years and nearly eight months after the directors were appointed by the county commissioners, before bringing this suit ? In op opinion, it has no effect at all on the right of the plaintiff. Let us bear in mind that the real plaintiffs are the people of Mercer county, and not their commissioners, nor their directors. The people had no legal capacity to enter into a contract of this sort, except in the very form and spirit of the power given by the Act of Assembly; and we have already shown that they have not thus contracted, and that the defendants are in no position to insist on the contract pretended to have been made. Neither the people nor the commissioners of Mercer county ever had any capacity to make such a contract.

Then how can the pretended one be confirmed ? A confirmation is itself equivalent to a contract, and is treated as one. It is an implied contract not to avoid a contract that is voidable: therefore, he who has no capacity to contract, can have no capacity to confirm, else all incapacity to contract would be set aside by a capacity to confirm. Then how is it possible that the negligence of the commissioners, or the fact of their being represented in the direction of the company, can have the effect of confirmation ? To give it this effect, would be merely implying a contract of confirmation, when it is perfectly apparent that the most express one that they could make would be utterly void.

The supposition that the people of Mercer county are to be estopped, for the delay existing here, from asserting their rights, *410really needs no answer, except that they could not possibly know the manner in which their rights had been disregarded, and they had no means of asserting them, until, in the due course of elections, they should get clear of the commissioners who had so indiscreetly managed their concerns. And the argument that, because the county was represented in the board and her directors delayed to raise objections, therefore the contract is confirmed, is an attribution to the directors of a power to contract, which the people themselves could not'give. And this argument is founded on the gratuitous assumption that the directors must have understood the character of the company’s proceedings and the rights of the county in relation to them; which is attributing to the inexperienced directors on the part of the county a better understanding of the affairs of the company, and of the rights growing out of the charter, than any of the thirteen old directors appear to have had, or than anybody else had, before the bringing of this suit. Besides, it was the business of the directors only to see that the affairs of the company were well managed during their time, and not at all to investigate and report upon the question of the right or propriety of the county subscription, for the law had intrusted this duty to others.

The old directors seem to have thought that they might lawfully constitute themselves into a corporation under this charter, by dividing among them the name of shareholders, or the right to become subscribers, for 15,000 shares; and that, without any one of them intending to be a real subscriber for the stock standing in his name, or having paid anything on it, or intending to pay it up, each of them might vote at elections and become directors, and call themselves a railroad company, and to get real subscriptions from others, to be under their management, and to call in all the shares subscribed by others, and no part of that held in their own name; and how can they say that the plaintiffs’ directors ought to have known and taught them better ? If they could do this ignorantly, they cannot wonder that others should witness it silently. If they did it fraudulently, they have no foundation for their expectation of equitable indulgence.

If the right acquired by the defendants, from the acquiescence of the plaintiff’s agents, is to be measured by the knowledge which those agents had of the business they were attending to, then it is little indeed; for it is impossible to discover that they had any intelligent comprehension of the relations of the old directors to the company, or of the rights of the county as a subscriber to its stock. That the commissioners should subscribe and issue negotiable bonds for $150,000 of stock without seeing that there was a real company, with real stockholders to the amount required by law, and real directors, and without seeing that others, at least *411the direetors, had paid up their stock, is a most emphatic proof that no intelligent acquiescence is to he charged to them.

If the legislature had really intended to say that the county funds might be invested in such a corporation as this, then the objection of want of capacity to subscribe would be removed, and we should have to consider the difference between the nominal and the real condition of the company in its relation to the intention of the county officers who participated in the subscription; The law of the charter was to them sufficient evidence that the corporation ought to be possessed of a capital of at least $750,000; and it must be presumed that it was their faith in this state of things that induced them to make their subscription. If this appearance was substantially false, then of course the company can have no equitable claim to insist on the subscription or on the bonds given on it, unless they show that, before the subscription was made, they honestly and fully explained to the grand jury and commissioners the real condition of their affairs; and it is not pretended that they did so.

Looking at the transaction in this aspect, the subscription would be avoided, not for the legal incapacity of the county to make the contract, but for the imposition of the false appearances which led to it. In such a case, the contract would be susceptible of confirmation; but even then only by acts done by those who had power to make the contract, showing an intention to confirm it with all its original defects, and being fully informed of them. We need not repeat what we have already said for the purpose of showing that there has been no such confirmation, especially as it is clear that, under the circumstances of this company, the county had no legal capacity to subscribe.

Several other arguments have been presented by the plaintiff's counsel, but it does not seem necessary to dwell upon more than two of them. One of them is, that the county subscription, being-accompanied by several conditions, and one of them the gauge law of 1851, could be regarded only as a proposal, to be accepted in terms or not at all. The company rejected the gauge law, and did not accept the subscription until they had got that law repealed. This was not an acceptance of the proposal as it was approved by the grand jury, and no bonds ought to have been issued on it. Our views on this point have been sufficiently expressed by the Chief Justice.

The other objection is founded on the allegation that the bonds, already transferred by the company, have been transferred at less than their par value, contrary to tbe express terms of the Act of Assembly, and, we may add, contrary to the true spirit of such transactions. It seems to us that this charge is made out, by the proof that the contract with Johnston & Co. for some $400,000 of the work is made payable in these Mercer county bonds, $50,000 *412in cash, and the rest in the stock of the company, not appearing to have then had any market value. This seems like making use of the good securities of the county as a means of passing off the stock of the company; and there is satisfactory evidence that, by letting the work in this way, it cost 33 per cent, more than it would have done if the contractors were really to have been paid in par funds or Mercer county bonds. By this arrangement, $300,000 worth of work was let at the price of $400,000. In other words, the Mercer county bonds and the cash payments would have paid for two-thirds of this work included in the Johnston contract; but, because of the alloy of the stock, the price has to be increased $100,000; so that they pay but half of it. This mode of evading the law against disposing of the bonds below par cannot possibly be sanctioned; and we are of opinion that it justifies the plaintiff’s demand for the restitution of the bonds that yet remain on hand.

We may view this part of the company’s transactions in another aspect. It is called a sale of stock for work, but it is not, for the company cannot really own shares of itself. In reality it is allowing Johnston k Co. to subscribe for and take $200,000 of stock on paying for it $100,000, and this is making the shares of all the honest and genuine subscribers of the stock entirely deceptive. If the public subscriptions and the true private subscriptions should amount to $800,000, and should be disposed of this way, then the contractors by investing $400,000 in work would get $800,000 of stock, and thus have the entire control of the road, and be entitled to the half of the profits, and would secure all the employments to themselves. All this is totally inadmissible, and it demands a surrender of the county bonds until the county shall be restored to its rights.

In relation to the bonds which the company had passed away before this suit was brought, we have not such parties before us as to justify us in ordering their surrender, and we leave the plaintiff to such further and other remedy as justice allows and as counsel may advise. But the plaintiff is entitled to have restitution of all the bonds which were in the hands of the defendants at the time of the institution of this suit. In all the points here presented I express the views of my Brother Woodward as well as of myself.