« ForrigeFortsett »
properly and equitably distribute its assets. It interest per annum upon such amount, but was filed by a shareholder and creditor. The as. should have credit thereov for all moneys paid sociation answered,and admitted its insolvency, i by them into the association on any and all acand a decree was pronounced maintaining the counts, including the payment of dues upon bill as a general creditors' bill, adjudging the cor- their stock, but that they were not entitled to poration as insolvent, and requiring all creditors have these payments credited upon the printo come in and file their claims, and a receiver ciple of partial payments. That court was of was appointed. The chancellor passed upon the opinion that the contracts of the members the rights of the various parties, and gave to pay dues upon their stock, and to repay decree accordingly. The case was appealed, their loans, were indissolubly tied together; and the court of chancery appeals has passed that the payment of the former was intended upon the questions involved, and the cause is as a payment pro tanto of the latter, and, innow before us on appeal by several parties. asmuch as the loans were usurious, the subThe questions presented are important, and scriptions were also tainted, and the borrowing some of them quite difficult. We are content stockholders were entitled to have their payto mention and dispose of them as presented. ments on stock dues credited upon the loans It is found, as a matter of fact, by the court from the association. The court further held of chancery appeals, that the by-laws of the that, as a matter of fact, the dues paid into association contain a provision that no funds the association were paid in on stock, and that, of the association should be loaned for a greater under a proper construction of the contracts premium than 30 per cent, and, as a matter of and law applicable to them, the agreement to fact, that the loans were not made under com- pay dues, fines, and interest all entered into petitive bids, but by agreement between the the undertaking of the borrowing member borrowers and association, at a fixed premium, when he made his loan, and the taint of usury. and were evidenced by notes payable six years therefore, attached to the whole transaction; after date, and secured, principal and interest, and for this reason that court concludes that by mortgages upon real estate. These mort- the payments upon stock should be credited gages further provided to secure the dues and upon the loans. The effect of this would be to fipes prescribed by the by-laws. No loans relieve the borrowers from all losses in the appear to have been made to parties other business of the association, and throw such than stockholders in the association, and the losses exclusivelyupon the nonborrowing stockstock of the borrowing shareholder was in holders. We think the question involved in each instance by the contract pledged to the this feature of the case is not one of fact, but association, to secure the loans made in addition of law and fact, to be determined by a proper to the real-estate mortgages. The court of construction of the charter, by-laws, and conchancery appeals find that these mortgages tracts entered into by the borrower and stockand potes matured at a definite time, and were holder with the association. We are of opinion enforceable at maturity, irrespective of the the court of chancery appeals is in error in maturity of the stock bypothecated to secure not observing the distinction, well settled, bethe loans. The court of chancery appeals beld.tween the borrower's relation to the associaunder this finding and statement of facts, that tion as a borrower and as a stockholder. Upon all of the loans made by the association to its this point that court says: The one distinct members were in violation of the laws of the from the other may be thinkable, but, from a state in regard to usury, and that, in the ad- judicial view, they are essentially parts of one justment and settlement of the rights of the and the same contract so far as the construcparties, the loans should be purged of all usury. tion of the contract is concerned. This being It is not necessary to dwell upon the question so, the element of usury, tainting the pole, of whether the loans as made by the association taints also its necessary element of payment as were unlawful, unwarranted, and usurious. fixed by the contract.” The subscriptions to We have recently passed upon this question in stock, and the obtaining a loan, are two disone of its features in the case of McCauley tinct things; and, while one is clearly dependv. Workingman's Bldg. & 8. A 880, in wbich ent upon the other, still they are not indissolwe held that such loans were unlawful and ubly connected. A sharebolder may never usurious, under the statutes of our state, wben become a borrower. While it is the original the premium was fixed upon which loans could scheme that all shareholders will become borbe made, and the money was not loaned under rowers, still it is not compulsory. Likewise, a free and competitive bidding, as required by borrower is not in every instance a stockthe statutes. It is not necessary for us to go holder, as outsiders are allowed to borrow further in this case. McCauley v. Working- surplus funds of the association after the prefman's Bldg. & S. Asso. 97 Tenn. In erence demand of the stockholders is satisfied. accord: Patterson v. Workingmen's Bldg. & But, as to borrowing stockholders, their conL. A880. 14 Lea, 696: Bates v. People's Sav. & L. tracts and obligations as shareholders and borA 880. 42 Ohio St. 655; Endlich, Bldg. Asso. 2d rowers are in many respects distinguishable ed. 409-411; Id. 1st ed. 394, 397; Reeve v. and different. The shareholder enters pri. Ladies Bldg. A880. (Ark.) 18 L. R. A. 134, note. marily into his contract of subscription. This
The next question is: Treating the loads as is a plain, simple contract, tainted with po usurious, upon what basis shall they be ad- usury or other irregularity, and could stand justed in the distribution of the assets of an alone. Having made this contract and become insolvent corporation, and in the winding up a subscriber, be applies for a loan. He states of its affairs? The court of chancery appeals in his plication that he is a stockholder, and beld that the borrowing stockholders should be thus puts himself in position to claim the prefcharged with the money actually obtained by erence given to the stockholders in making them from the association, with 6 per cent loans. Payments made on stock are simply investments in stock, whether the shareholder be have every payment made by him to the a borrower or not. These payments have no lender credited on his loan. We see no ten. direct relation to loads made to members. It able ground for such distinction. The stock is true tbat in solvent going concerns, under subscriptions, and loans, as we have seen, are certain contingencies, as in cases of with separate transactions, and it is only as to drawal or maturity of the scheme, the bor- the latter that the question of usury arises. rower has the right to have the amounts due The subscriptions for the stock are not tainted 10 bim upon his stock credited upon his in- with usury, and there is no reason why the debtedness to the association. But this pay. borrower who has paid usury upon his loan ment of dues upon stock is not " ipso facto" a should be allowed to recoup it by receiving payment op his loan. It is more in the nature back the payments made on his stock. Each of a set-off or adjustment of cross demands class must stand upon its own basis, and and claims. If the borrower prefer, he can the shareholders' rights as between them. pay his loan in money, and the association selves must be adjusted on the status of cannot force bim to credit the amount of his their shares, not affected by any questions of stock payments upon bis indebtedness to the usury involved in the loans. The stockhold. association. The relations of borrower anders must bear the losses made in the business stockholder are separate and distinct. End- between them, but, if the sbareholders wbose lich, Bldg. Asso. 2d ed. SS 448, 477, 478. loans are tainted with usury are allowed Mr. Endlich says: “It has therefore be. credit for their payments on stock, they come a well-recognized doctrine that the pay will escape their share of such losses, and ments of dues upon stock are not payments the same will be thrown on the ponborrowing to the mortgage debt, and do not ipso facto stockholders. work an extinguishment (pro tanto) of so much The next question arising is as to the right of the mortgage, and bence that they are not of certain stockholders who paid dues in adto be regarded as partial payments, and that vance of their maturity. These stockholdtherefore the statutory rule for computing in- ers are not borrowers, but they claim that terest on partial payments is inapplicable to having paid dues in advance, under an agree. them.” Id. $ 477. Again, it is said: “It ment with the association that interest should may be safely stated that the doctrine bas be allowed upon such advance payments until forced its owu recognition upon the courts of absorbed by dues, they should be treated as nearly every state in the Union, as well as creditors of the association, and the amounts England. It may, it is true, not have found, advanced as loans to it be repaid, with interupop all occasions, express and explicit judi- est. The charter forbids the company to recial sanction. In theory, it may have been tain a monthly payment exceeding two dollars. persistently denied, yet in its results it has per share, but does not in express terms pro in some form or other been everywhere ap-hibit it from allowing stockholders to pay in. plied, and, in the condemnation of ihe outrage- advance if they so desire. But here the adous consequences flowing from the opposite vances were made under an agreement that doctrine, it has at some time or other been the parties making the advances should be al-everywhere confirmed.” Id. § 123; Rogers v. lowed interest upon the amounts advanced. It Hargo, 92 Tenn, 35; Pioneer Sav. & L. Co. v. was in some respects the same thing as if the Cannon, 96 Tenn. 599, 33 L. R. A. 112. association, in order to accommodate its bor
The rule in regard to the distribution of the rowers, had gone to some bank or outside perassets of insolvent associations, in so far as it | son, and borrowed money to put into the relates to borrowing stockholders, is laid down association. Such a proceeding is not war. in Rogers v. Hargo, supra, to be that the bor. ranted by the charter or the proper scope and rowing stockholder will be charged with the scheme of a building and loan association. money actually received by him, with interest They should not be borrowers of money, but from date of its receipt. He is credited with only lenders for the proper purposes of their all payments of interest and premiums as of creation. To allow the amounts advanced to. dates when made. He is not allowed credit be paid back would be to sanction such profor amounts paid as dues on his stock. After ceedings as legitimate loans, to convert capitalall liabilities of the company are paid, the re. into loans, and to create preferred stock, in maining fund is distributed pro rata among order to work out supposed equities.
We stockholders, whether borrowers or not, upon tbink the proper holding upon this matter is the basis of the amounts paid by them, re- to treat the advances as payments upon stock, spectively, as dues upon the stock. This is in and not as loans to the company; and this is, accord with the rule laid down in Strohen v. iv effect, carrying out the intention of the parFranklin Sao. Fund & L. Asso. 115 Pa. 273, ties, which was to pay up their stock in 279, and as now held in Endlich on Building advance, and, by anticipation of its maturityAssociations, 2d ed. SS 514, 515, though form. receive a discount by so doing. erly the same author held to the opposite view. The next question presented is as to the right See also Towle v. American Bldg., L. & I. Soc. of a certain stockholder (Armstrong), whose61 Fed. Rep. 446.
stock was declared matured in December, 1894, It is insisted, and very ably urged, that but who had failed to draw anything from the while this is the correct 'rule in winding up association. It is insisted that he should beassociations which are merely insolvent, and paid the par value of the stock, as a creditor of wbich have conducted a legitimate business, the association, and not be required to share as a different rule must be adopted when the a stockholder. The court of chancery apbusiness of the association has been conducted peals held: “In sound reason and legal anupon an illegal and usurious basis, and that alogy, the positions of the members bolding in such cases the borrower has the right to stock in a series declared through mistake 10 be matured, when in point of fact it had not by the by-laws to unmatured, but not to mamatured, is, in respect to the assets of the in. tured, stockholders. This latter was a valuasolvent corporation, the same, in effect and as ble right, in the light of the fact that all stockto results, as that of members giving notice. holders withdrawing before the bill was filed They are not entitled to be paid in preference were paid in full. But, in view of the insol. to other stockholders. They will prorate with vency of the association, the rights of the differall other stockholders in the assets of the asso- ent shareholders as among themselves, and not ciation after the expenses of the administration simply as against the association, must be conof its affairs are paid.” The court of chancery sidered; and the case presents itself as one appeals found that this series of stock had been purely arising out of mistake of facts and erdeclared mature by mistake, and that the real rors in the conduct of the business, and, as a value of petitioner's share was not $1,000 but matter of fact, Mr. Armstrong's stock has not only $792.80; and the contention now is that matured, and he does not stand in tbe attitude he should be paid, if not the par value ($1,000) of a creditor, or of a stockholder holding maof his stock, its real value, of $792.80. If this tured stock, but of a stockholder whose stock contest were alone with the association as a is not yet mature, and upon that theory his solvent, going concern, this contention might rights in a contest with bis fellow stockbolders be sustained, perhaps, upon the theory that the must be adjusted and settled as a stockholder. association would be estopped to set up its This applies to all shareholders who stand in mistake in declaring the stock paid up, and in the same relation and occupy the same status such case would be required to pay the stock as does Mr. Armstrong. holder as it had agreed; especially in consid- It follows that the decree of the Court of eration of the fact that he was no longer a Chancery Appeals must be reversed and modified member after his stock matured, and had no in the particulars indicated, and in all other right to vote or to withdraw on notice, secured | respects it is affirmed.
WISCONSIN SUPREME COURT.
Rufus W. ROBINSON, Respt., complaint in this action is not ratification, but
at most is evidence of ratification. SUPERIOR RAPID TRANSIT RAILWAY Milwaukee & M. R. Co. v. Finney, 10 Wis. COMPANY, Appt.
388: Craker v. Chicago & N.W.R. Co.36 Wis.
675, 17 Am. Rep. 504; Bass v. Chicago & N. (..... Wis.........)
W. R. Co. 42 Wis. 667, 24 Am. Rep. 437;
Eviston v. Cramer, 57 Wis. 578; Lake Shore & 1. What a conductor said after allowing M. S. R. Co. v. Prentice, 147 U. S. 101, 37 L. a passenger to get back on the car because ed. 97: Dillingham v. Anthony, 73 Tex. 47, he had become convinced that he had paid his 3 L. R. A. 634. fare, although he had put the passenger off be- The fact that a railroad conductor ejecting cause he thought he bad not paid the fare, is
a passenger was not legally justified in refuspart of the res gestæ of the ejection.
ing to allow the passenger to ride on his ticket 2. An instruction that plaintiff is “ en- will not justify the awarding of exemplary
titled” to exemplary or punitory'dam- damages where the conductor was actuated by ages if the injury was malicious is error, since malice, however mistaken as to the legal righis such damages cannot be claimed as matter of of the passenger and as to his own duties in
law, but only in the discretion of the jurv. the premises. 3. Exemplary damages cannot be re- Hoffman v. Northern P. R. Co. 45 Mind.
covered from a carrier for the malicious act 53; Pine v. St. Paul City R. Co. 50 Minn. 144, of the conductor in .ejecting a passenger, unless 16 L. R. A. 347. his act is either authorized or ratified by tbe car- Mr. Yate H. V. Gard, for respondent: rier.
The language of the conductor after plaintiff (November 4, 1896.)
bad returned to the car was pleaded as part of
the transaction, and taken in connection with A seem clear
the Superior Court for Douglas County that it is part of the res gesta. in favor of plaintiff in an action brought to
Bass v. Chicago & N. W. R. Co. 42 Wis. 671, recover damages for plaintiff's alleged wrong. 24 Am. Rep. 437. ful ejection from defendant's car. Reversed.
If the defendant corporation ratified the act The facts are stated in the opinion.
of the conductor it thereby became liable in Messrs. Ross, Dywer, & Hanitch, for ap. exemplary damages. pellant:
The ratification of a tort may be either with Keeping the conductor in defendant's em- full knowledge of the facts or with the purploy after the service of the summons and pose of the principal without inquiry to take NOTE.-On the question how near the main trans
the consequences upon himself. action declarations must be in order to constitute
Cooley, Torts, 128. a part of the res gesta, see note to Ohio & M. R. Co.
The report of the conductor shows tbat v. Stein (Ind.) 19 L. R. A. 733.
plaintiff was wrongfully expelled, and this is
all that is necessary to charge the corpora. Wis. 674. The case is clearly distinguisbable tion.
from Grisim v. Milwaukee City R. Co. 84 Wis. Bass v. Chicago & N. W. R. Co. 42 Wis. 22; Ehrlinger v. Douglas, 81 Wis. 59. 669, 24 Am. Rep. 437.
2. Error is assigned because the trial court, Tbe defendant in its answer approves, sanc. after charging the jury to the effect that the tions, and adopts every contention adverse to plaintiff was entitled to a verdict for compen. plaintiff that the conductor contended for satory damages for all injuries, including in against bim. Such an answer under such cir juries to his feelings, further charged them to cumstances amounts to a most forcible ratiti ihe effect that, if the conductor maliciously cation of the conductor's acts.
put the plaintiff off the car, then he was “also Taylor v. Ryan, 15 Neb, 573; Henderson v. entitled” to what are called “exemplary" or Fox, 83 Ga. 233; Bennett v. Matthews, 64 Barb. ! *punitory” damages; that is, something dif410; Klewin v. Bauman, 53 Wis. 244.
ferent from, and over and above, the compenThe corporation is held liable in exemplary satory damages which the law allowed them to damages for the acts of its agents and servants impose in such a case, in the way of warning within the scope of their employment in all and punishment, and as a public example. cases where such damages would be awarded Tbere is no claim that at the time in question against the individual if acting for himself. the conductor was not acting within the scope Thomp. Corp. § 6388.
of his employment, nor that the plaintiff had If the prompt dismissal of the offending not paid bis fare. The plaintiff was therefore servant raises a presumption against ratifica- entitled to compensatory damages. Whatever tion, and it certainly does, then the retention may be the rule in other states, it is settled in must raise the presumption of ratification. this state that, in actions for personal torts,
Bass v. Chicago & N. W. R. Co. 42 Wis.675, such compensatory damages include, vot merely 24 Am. Rep. 437; Patry v. Chicago, St. P. & the plaintiff's pecuniary loss, but also compen0. R. Co.77 Wis. 218; Perkins v. Missouri, K. sation for mental suffering; and that, in award& T. R. Co. 55 Mo. 201: Cleghorn v. New York ing such damages in such a case, no distinction C. & H. R. R. C0.56 N. Y. 44, 15 Am. Rep. 375, is to be made between other forms of mental Goddard v. Grand Trunk R. Co. 57 Me. 202, suffering and that which consists in a sense of 2 Am. Rep. 39.
wrong or insult. Craker v. Chicago & N. W.
R. Co. 36 Wis. 657, 17 Am. Rep. 504; Fenelon Cassoday, Ch. J., delivered the opinion of v. Butts, 53 Wis. 344; Grace s. Dempsey. 75 the court:
Wis. 323; Reinke v. Bentley, 90 Wis. 459. The This is an action to recover damages by rea- question here presented is whether the plaintiff son of the defendant's baving without cause, was also entitled,” as a matter of law, to "exuplawfully, wilfully, maliciously, and with emplary or punitory” damages, in case the jury force and violence ejected and expelled the found that the conductor maliciously ejected plaintiff from one of its railway passenger cars, the plaintiff. In Day v, Woodworth. 54 U. S. upon which he was rightfully riding after bav. 13 Now. 371, 14 L. ed. 185, Mr. Justice Grier, ing paid bis fare. The defendant aðswered, by speaking for the court, said "that, in actions way of admissions, denials, and allegations, to of trespass and all actions on the case for torts, the effect that, if the plaintiff had paid his fare, a jury may inflict what are called exemplary, the conductor of the car had forgotten the fact, punitive, or vindictive damages upov a defendand so ejected the plaintiff only after he had ant, having in view the enormity of his offense, refused to inform the conductor whether he rather than the measure of compensation to the had paid his fare or not. At the close of the plaintiff.
This has been always left trial, the jury returned a verdict to the effect to the discretion of the jury, as the degree of that they found for the plaintiff, and assessed punishment to be thus inflicted must depend his damages at $250, of which sum $200 was upon the peculiar circumstances of each case." so awarded as exemplary damages. From the This is quoted approvingly by Mr. Sutherland judgment in favor of the plaintiff for the full (vol. 1, $ 392). The same was followed in Pike amount stated, and costs, the defendant brings v. Dilling, 48 Me. 539, where numerous adju. this appeal.
dications are referred to, and an instruction to 1. We perceive no error in allowing the the jury to the effect that in such case they plaintiff to testify as to the conversation be were authorized, if they thought proper, in iween himself and the conductor in respect to addition to the actual damages the plaintiff paying bis fare while riding on the car, and at has sustained, to give bim a further sum, as ihe time and immediately after he was ejected, exemplary or vindictive damages both, as a proand just after he got on the car again. The tection to the plaintiff, and as a salutary excontroversy was as to whether the plaintiff bad ample to otbers, to deter them from offending or bad pot paid his fare. He was put off be- in like cases,” was held to be in accordance cause the conductor claimed he bad not paid with the weight of judicial authority in this his fare. He was allowed to get on the car country. In Webb v. Gilman, 80 Me. 188, it again because the conductor became convinced was said by the court that “exemplary or puthat he had paid his fare. The res gesta com- nitive damages cannot be demanded as a matmenced wben he paid his fare, and did not ter- ter of right; actual damages may be.” To the mipate until he returned to the car, and was same effect: Foote v. Nichols, 28 III. 486; Near allowed, by the conductor, to ride peaceably. Orleans, St. L. & C. R. Co. v. Burke, 53 Miss. Within the authorities, it included what the 200, 24 Am. Rep. 689; Wabash, St. L. & P. conductor said just after the plaintiff stepped R. Co. v. Rector, 104 Ill. 296; Boardman v. back into the car. Hooker v. Chicago, M. & Goldsmith, 48 Vt. 403; Snow v. Carpenter. 49 St. P. R. Co. 76 Wis. 542; Hermes v. Chicago Vt. 426: Kentucky C. R. Co. v. Gastineau, 83 4. V. R. Co. 80 Wis. 592; Reed v. Madison, 85 | Ky. 119; Louisville & N. R. Co. v. Brooks, Id.. 129; Stilson v. Gibbs, 53 Mich. 280; Wilson v., Chicago & N. W. R. Co. 36 Wis. 657, 17 Am. Bowen, 64 Mich. 133. In the last Illinois case Rep. 504; Bass v. Chicago & N. W. R. Co. 36 cited, an instruction substantially like the one Wis. 450, 17 Am. Rep. 495, 39 Wis, 636, and in the case at bar was held bad. In one of 42 Wis. 654, 24 Am. Rep. 437; Eriston v. the Kentucky cases cited, an instruction that Cramer, 57 Wis. 570; Patry v. Chicago, St. P. the jury "should” give punitive damages if M. &0. R. Co. 77 Wis. 218; Mace v. Reed, 49 they found the neglect wilful was held error; Wis. 440; Hagan v. Procidence & W. R. Co. 3 and, in the other Kentucky case cited, it was R. I. 88, 62 Am. Dec. 377. On the same day held error to instruct in such a case that the that the plaintiff was so ejected from the car, jury "ought” to award punitive damages. It September 12, 1894, the conductor reported his is true that an instruction to the effect that the version of the transaction to the defendant; but jury “ought” to give exemplary damages in that report, while it was not expressly exsuch a case was sustained by this court in cluded on the objection of the plaintiff, was Hooker v. Newton, 24 Wis. 292; but the case is allowed in evidence simply as showing that not in barmony with the best considered cases, the defendant bad no knowledge of wrong on nor with the weight of autbority. Mr. Thomp- the part of the conductor. The only evidence son, in bis excellent work, after stating that of notice to the defendant that the conduct of "the jury may, if they think proper, give dam- the conductor was malicious is the allegations ages by way of punishment,” says: “It may contained in the complaint served September be stated that, in cases in which such damages 25, 1894. There is nothing to indicate that the may be given, whether they will be given or complaint was read to the jury, por that they not, is a question witbin the discretion of the knew its contents, and the trial court stated, jury. Many judgments have been reversed at the time the evidence was excluded, that because the jury were allowed to give such there was not any evidence in the case of ratidamages; but no case is recollected where a fication. It does appear that the conductor judgment was reversed because such damages was in the employ of the defendant from July were not given, though possibly such cases 28, 1894, to December 18, 1894, and then left may be met with in the recent books of re- of his own accord. Such retention of the conports.” 2 Thomp. Trials, $ 2065. The reason ductor in the employment of the defendant, for the rule, as indicated in some of the cases with knowledge that such conduct of the con. cited, is that the primary object of such action ductor was wilful and malicious, would have is to fairly compensate the plaintiff for the been evidence tending to prove ratification. wrong be has suffered and the injury he has The decisions of this court cited are to that sustained, and that he is not entitled, as a mat- effect. See also cases cited in the notes to 62 ter of legal right, to anything more. Accord Am. Dec. 387; Cleghorn v. Nerr York C. & 11. ingly, some courts of high standing refuse to R. R. Co. 56 N. Y. 47, 15 Am. Rep. 375. In allow punitory damages in cases similar to taking the question of such ratification from this.
the jury, the court necessarily held that, if the 3. There is another matter calling for con jury found that the conduct of the conductor sideration. The charge left the question of ex. was malicious, then the defendant was conemplary damages to turn wholly upon the ques- clusively bound to know the same, because it tion whether the conduct of the conductor was was so alleged in the complaint. This, we malicious,—the same as though the action had think, was error. been directly against him. This court has re- The judgment of the Superior Court for peatedly held, in effect, that such exemplary Douglas County is reversed, and the cause is redamages can only be recovered agains the manded for a new trial, or, at the option of principal for the wrongful and malicious act the plaintiff, for judgment in his favor on that of the agent, when such act is either author- part of the verdict assessing compensatory ized or ratified by the principal. Craker v. i damages.
IOWA SUPREME COURT.
12. A finding of fact by a jury on conflicting
evidence will not be disturbed on appeal. Town of MANSON, Appt.
3. An unguarded and unlighted exca
vation in close proximity to a crosswalk may (........ Iowa........)
constitute negligence of a municipality, although
the crosswalk itself is not defective. 1. A pedestrian's knowledge that the town is laying watermains is not sufficient to give 4. A witness called by both parties notice of an excavation at a particular place may be impeached by the party first calling near a crossing.
him by proof of bis contradictory statements as
NOTE.- As to the power to compel the plaintiff in 19 L. R. A. 641; Carrico v. West Virginia, C. & P. R.