"But in addition to the existence of grievances which call for this kind of relief, it is equally important that before the shareholder is permitted in his own name to institute and conduct a litigation which usually belongs to the corporation, he should show to the satisfaction of the 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. He must make an earnest, not a simulated effort, with the managing body of the corporation, to induce remedial action on their part, and this must be made apparent to the court. If time permits or has permitted, he must show, if he fails with the directors, that he has made an honest effort to obtain action by the stockholders as a body, in the matter of which he complains. And he must show a case, if this is not done, where it could not be done, or it was not reasonable to require it. The efforts to induce such action as complainant desires on the part of the directors, and of the shareholders when that is necessary, and the cause of failure in these efforts, should be stated with particularity, and an allegation that complainant was a shareholder at the time of the transactions of which he complains, or that his shares have devolved on him since by operation of law, and that the suit is not a collusive one to confer on a court of the United States jurisdiction in a case of which it could otherwise have no cognizance, should be in the bill, which should be verified by affidavit. The appellant's bill presents no such case as we have here supposed to be necessary to the jurisdiction of the court. He merely avers that he requested the president and directors to desist from furnishing water free of expense to the city, except in case of fire or other great necessity, and that they declined to do as he requested. No correspondence on the subject is given-no reason for declining. We have here no allegation of a meeting of the directors, in which the matter was formally laid before them for action-no attempt to consult the other shareholders to ascertain their opinions, or obtain their action ; but within five days after his application to the directors this bill is the case to have been one prima facie within the corporate range, set up as a defence that the contract was ultra vires. In all cases in which the exercise of a particular power is doubtful, parties desiring to contest it must, before availing themselves of its benefits, attempt by injunction or similar immediate action, to prevent it from being carried into effect.1 Parties who could thus dispute its exercise cannot, after they have received any substantial benefit it may have worked to them, dispute their liability to pay the consideration.2 Hence it has been ruled by the Supreme Court of the United States that, "where a corporation is incompetent by its charter to take a title to real estate, a conveyance to it is not void, but only voidable, and the sovereign only can object. It is valid until assailed in a direct proceeding instituted for that purpose."3 And it has been held that a defendant, who, under a contract relating to land made with a corporation claiming to own the land, has received the full benefit of the contract, cannot set up that the contract was ultra vires.4 "What has here been declared with regard to executed contracts for the sale of real estate applies to all other executed contracts. When a corporation has received the benefit of an executed contract, it cannot throw up such contract unless it can put the other party in statu quo; nor filed. There is no allegation of fraud or of acts ultra vires, nor of destruction of property, or of irremediable injury of any kind. Conceding appellant's construction of the company's charter to be correct, there is nothing which forbids the corporation from dealing with the city in the manner it has done."

1 Colman v. R. R., 10 Beav. 1.

2 Fountaine v. R. R., L. R. 5 Eq. 316; Royal Bank v. Turquand, 5 El. & B. 248; 6 El. & B. 327; Taylor v. R. R., L. R. 2 Exch. 356; Ossipee Co. v. Canney, 54 N. H. 295 ; Bradstreet v. Bk., 42 Vt. 128 ; Witte v. Fishing Co., 2 Conn. 260; Le Coutenex v. Buffalo, 33 N. Y. 333 ; Whitney Co. v. Barlow, 63 N. Y. 62; reversing S. C. 38 Sup.

Ct. 554; Oil Creek R. R. Co. v. Penns. Trans. Co., 83 Penn. St. 160; Darst v. Gale, 83 111. 136; State Board v. Citizen's St. R. R., 47 Ind. 407 ; Miner's Ditch Co. v. Zellerback, 37 Cal. 543. See Big. on Est. 3d ed. 284-6 ; 465-8.

8 Nat. Bk. v. Matthews, 98 U. S. 621; Gold Min. Co. v. Bank, 96 U. S. 640; Cowell v. Springs Co., 100 U. S. 55 ; Christian Union v. Yount, 101 U. S. 352 ; Chester Glass Co. v. Davey, 16 Mass. 94; Whitney Arms Co. v. Barlow, 63 N. Y. 62; Amer. Bible Soc. v. Marshall, 15 Oh. St. 537 ; Newburg Pet. Co. v. Weare, 27 Oh. St. 343; Notoma Co. v. Clarkin, 14 Cal. 543.

4 Missouri Valley Land Co. v. Bush-nell, 11 Neb. 192.

can it, if there have been any laches on its part, ask for rescission.1 Hence a railway corporation is liable on its contract to carry passengers on connecting lines, though the contract is technically ultra vires.2 On the one side, when a corporation has performed its part in a contract technically ultra vires, the other contracting party will be compelled to perform his part.3 Thus, in a New York case, a company incorporated for the purpose of manufacturing fire-arms entered into a contract to manufacture railroad locks. As against the party receiving the locks, it was held that the corporation was entitled to recover their price. "The plea of ultra vires," said Allen, J., in the court of appeals, "should not as a general rule prevail, whether interposed for or against a corporation, when it would not advance justice, but, on the contrary, would accomplish a legal wrong."4 On the other side, a corporation will be estopped from disputing its liability on a contract technically ultra vires, when the contract has been performed by the other party.5

1 Infra, sec 285-6; Zabriskie v. R. R., 23 How. 381 ; White v. Bank, 22 Pick. 181 ; McClure v. R. R., 13 Gray, 124; Bissell v. R. R., 22 N. Y. 258; Chapman v. R. R., 6 Oh. St. 137; Newburg Co. v. Weare, 27 Oh. St. 343; Bradley v. Bullard, 55 111. 413; Chicago Building Ass. v. Crowell, 65 111. 453 ; St. Louis v. Gas-Light Co., 70 Mo. 69 ; Humphrey v. Patron's Ass., 50 Iowa, 607 ; Hazlehurst v. R. R., 43 Ga. 54; Argenti v. San Francisco, 16 Cal. 255.

2 Wh. on Neg. sec 579 ; Marshall v. R. R., 11 C. B. 655 ; Martin v. R. R., L. R. 3 Ex. 9 ; South Wales R. R. v. Redmond, 10 C. B. N. S. 675 ; Wilby v. R. R., 2 H. & N. 703; Bartle v. Wheeler, 49 N. H. 9 ; Burroughs v. R. R. 100 Mass. 26 ; Burtis v. R. R., 24 N. Y. 269 ; Root v. R. R., 55 N. Y. 636 ; Buffett v. R. R., 40 N. Y. 168.

3 Infra, sec 142.

4 Whitney Arms Co. v. Barlow, 63 N. Y. 62. See, to same effect, Railway v. McCarthy, 96 U. S. 258 ; Rutland R. R. v. Proctor, 29 Vt. 96 ; Chester Glass Co. v. Davey, 16 Mass. 94; Oil Creek R. R. v. Penn. Trans. Co., 83 Penn. St. 160; and other cases cited, Morawetz on Corp. sec 103, and also infra, sec 142.

5 Field, Corp. sec 273 ; Green's Brice's Ultra Vires, 2d ed. 729 ; Jones, Railroad Securities, sec 356; Hitchcock v. Galveston, 96 U. S. 341; Watt's App., 78 Penn. St. 370; Oil Creek Co. v. Penn. Trans. Co., 83 Penn. St. 160; Hays v. Galion Co., 29 Oh. St. 330; Darst v. Gale, 83 111. 136; Thompson v. Lambert, 44 Iowa, 239 ; Cozart v. R. R., 54 Ga. 379. The authorities will be found further noticed in articles, 5 Am. L. Rev. 272 ; 9 Cent. L. J. 463 ; and particularly in 12 Cent. L. J. 386.