
    Hoknaday v. The Indiana and Illinois Central Railway Company.
    Suit by a railroad company on a subscription of stock. The answer sot up fraud in this, that since defendant’s cash subscription, the company had taken a large land subscription at enormous prices, &c. Held, bad on demurrer.
    APPEAL from the Hendricks Court of Common Pleas.
    
      Friday, June 5.
    
      
       Counsel for the appellant cited 1 Hovenden on Fraud, pp. 145, 468; 2 id. pp. 4, 38, 157; M’Cormick v. Malin et al. 5 Blackf. 509.
    
   Stuart, J.

The railway company sued Hornaday, on his stock subscription. He set up fraud in this, that since his cash subscription, the company had taken a large land subscription at enormous prices, &c. Demurrer to the answer sustained, and judgment for the plaintiffs below. Hornaday appeals.

There was no error in this ruling. That the officers of the railway company had made some foolish bargains, was no defense to the action. It was his duty as a stockholder to aid in the selection of more competent officers. He might complain, if they had gone beyond the common course of procedure — as if they had consolidated the road with some other. But procuring subscriptions of stock, was directly in the line of their duty. If land was taken, it was because the railway charter permitted it. It was only an error of judgment if they paid too high a price.

Besides, Hornaday took no exception to the opinion of the Court in sustaining the demurrer to his answer. The record, therefore, presents no question to be determined .

H. C. Newcomb, J. S. Harvey and J. M. Gregg, for the appellant .

C. C. Nave, for the appellees.

Per Curiam.

The judgment is affirmed, with 2 per cent, damages and costs. 
      
      
         Jolly v. The Terre Haute Bridge Co., post.
      
     