1. If an unauthorized and illegal amendment to its charter has been accepted by a corporation and is about to be acted, upon, a stockholder who has not assented thereto or become estopped from complaining may bring an equitable proceeding to enjoin or set aside any action by the corporation under the amendment. 1 Cook on Stock and Stockholders (3d ed.), §§ 502, 503, pp. 638-41.
2. Rut where an amendment to a charter of a corporation was obtained and accepted, reducing the capital stock, and all of the stockholders (of whom.there were apparently many), save two, surrendered their shares upon the terms provided in the amendment, and received amounts of money and the lesser amounts of stock in accordance therewith; and ■where the corporation proceeded to do business upon the new basis for about a year, with the knowledge of one of the non-consenting stock-, holders, and a dividend of a certain per cent, was then declared, he could not recognize such a declaration and sue and recover the dividend, basing' the amount of his recovery upon the amount of his stock unreduced and the per cent, declared, while others were paid on the basis of the reduced stock, no proceeding having been instituted to set aside the illegal action complained of by him.
3. Under such a suit to recover the dividend so declared, the only question being as to the amount which the plaintiff was entitled to recover, there was no error in directing a verdict for the amount of dividend only on the reduced basis.
4. The rulings above made control the casé and render it unnecessary to discuss in detail other rulings of which complaint was made.
Judgment affirmed.
All the Justices concur.