« ForrigeFortsett »
by a single creditor against a single stockholder | belongs to others equally with himself. Nafor the recovery of a specific sum of money tional Bank v. Dillingham, supra; Terry v. cannot be maintained in our courts, under our Little, 101 U. S. 216, 25 L. ed. 864; Hornor v. statutes declaring the liability of stockholders. Henning, 93 U. S. 228, 23 L. ed. 879. It is In such cases the liability must be enforced in impossible to conceal from ourselves that such equity in a suit brought by or in behalf of are the scope and real purpose of the action, all the creditors against all the stockholders, and bence we are asked to enforce a remedy wherein the amount of the liability and all under a foreign law where it is perfectly apthe equities can be ascertained and adjusted. parent that complete justice cannot be done, The stockholders of this Kansas bank are not and where it is plain that an equitable result equitably liable for any greater sum tban may can be accomplished only by the courts of be necessary to discharge the debts after the the jurisdiction where the corporation was corporate property has been applied. All of created. them that are solvent should contribute in pro- The case has thus far been considered with portion to the amount of their holdings of stock. reference to the discovery of some practical We are not informed by the complaint how method of applying in this jurisdiction the pemany stockholders there are, or even the culiar local remedy for the enforcement of the amount of the capital stock. Nor are we in- statutory liability, created by the law of the formed whether any of the stockholders are domicil. There is still another aspect of ipsolvent. It is quite evident, therefore, that the question wbich deserves attention, and it the equitable proportion of the corporate debts must be viewed in the light of notorious which this defendant should pay cannot be as- facts, which, though not appearing in the certained or determined in this action. The record, are matters of current bistory and liability of the stockholders is a fund to which common knowledge, to which we cannot shut all the creditors are entitled to resort after the our eyes. Within recent years numerous corporate property has been applied upon the business enterprises have been promoted in debts. If this action can be maintained, it is some of the Western states, the money for quite apparent that one creditor may collect the prosecution of which has been to a large his debt in full, and another creditor may not extent borrowed here, either in the form of be paid anything except what he is able to col. direct loans upon some kind of security, or lect from the corporation. The statutes upon by inducing many of our citizens to purchase which this action is based provide, among stock in corporations organized for the purother things, that when judgment is obtained pose under local laws. Mu of these in against a stockholder, and it is satisfied by col- vestments, amounting to a vast sum in the lection or payment, he may, in turn, maintain aggregate, has been lost. This result is in an action against all the other stockholders, some degree to be attributed to financial dewho are such at the time of dissolution, for the pression, and the consequent derangement recovery of the portion of the debt for which of business, but in a much greater degree to they were liable; and, if any stockholder thus the gross mismanagement and dishonesty of sued shall not have property enough to satisfy the managers and promoters. The funds thus his portion of the claim, the deficiency shall be procured have been used largely in furtherdivided equally among the remaining stock ance of local and private interests, and in disholders, and collected accordingly. It is quite regard of every prudent safeguard for the proapparent that the purpose of the law cannot be tection of the investors, and sometimes in decarried out, except by a proceeding in equity fiance of every principle of common bonesty. for an accounting, to wbich all the stockhold. In some cases, when the managers well knew ers are made parties. If the plaintiff can main- they were hopelessly involved, they continued tain this action, and collect his debt from the lo transact business, borrowing recklessly, and defendant, how can the defendant proceed pledging the assets in their possession or under against bis fellow stockholders to reimburse their control. Wben the crash came, these himself for that part of the debt which they assets were sold by the pledgees, and, of course, should bave paid? It would be manifestly sacrificed in many cases, leaving large deficienupjust and unfair to compel him to pay this cies, which honest and prudent management claim, and turn bim over to another action, could have converted into a surplus. A careperhaps in another state or in many states, in ful investigation of some of the disastrous failorder to obtain the contribution which the law ures of loan, investment, trust, land, and mortevidently contemplates. All these questions gage companies, as well as banks and other should be settled in one proceeding or in one corporations, will reveal this condition of action, and that at the domicil of the corpora- things. It will not be difficult for speculators tion. The statute contemplates that each stock- to purchase large claims against these defunct holder sball pay bis just proportion of any sum corporations at a very low price, if they can that may be required to discharge the outstand be readily enforced here against stockholders ing obligations of the corporation. The form who have made and lost investments in the of the action should be one, therefore, adapted stock. These considerations are not, of course, to the protection of all. A suit at law by one pertinent in a case where a party is seeking to creditor to recover for himself alone is entirely enforce a clear legal right, whatever may have inconsistent with any idea of contribution. been the circumstances of its origin, but they The liability is not to any individual creditor, serve to stimulate a careful inquiry as to the but for contribution to the fund out of which principles and reasons upon which the courts all creditors are to be paid alike. Hence, the of this state are required to aid in the enforceappropriate remedy is by suit in equity to en- ment of claims of this character. force the contribution, and not by one creditor In the case at bar the plaintiff's right of acalone to appropriate to his own use that which tion has no other legal or moral basis than the fiat of a legislature of another state. It is a could not be maintained. The opinions of the principle of universal application, recognized several members of the court in ibat case conin all civilized states, that the statues of another tain a clear and interesting discussion of the state bave, ex proprio rigore, vo force or effect law applicable to the question. Derrickson v. in another. The enforcement in our courts of Smith, 27 N. J. L. 166. The courts of Massasome positive law or regulation of another chusetts have uniformly refused to entertain state depends upon our own express or tacit actions of this character, either upon the consent. The consent is given only by virtue ground that to enforce the foreign law would of tbe adoption of the doctrine of comity as be injurious to its own citizens, or that compart of our municipal law. That doctrine bas plete justice could not be administered in its many limitations and qualifications, and gen-courts under its special and peculiar provi. erally each sovereignty has the right to detersions. Erickson v. Nesmith, supra; Nov mine for itself their true scope ard extent. Haven Horse Nail Co. v. Linden Spring Co. The courts of this state are open to all suitors 142 Mass. 349; Post v. Toledo, C. & St. L. R. to enforce rights of action, transitory in their Co. 144 Mass. 341, 59 Am. Rep. 86; Bank of nature, recognized by the common law, or North America v. Rindge, 154 Mass. 203, 13 L. founded in natural justice, and when no law R. A. 56. The arguments of the court in these of the forum or any principle of public policy cases upon which the conclusion was based deinterferes. There is, however, a large class of serve the highest respect, and it is forthy of fereign laws and statutes which, under the doc- potice that, in the case last cited, the statute trine of comity, have no force in this jurisdic- sought to be enforced was the identical one tion. It belongs exclusively to each sover- now under consideration in the case at bar. eignty to determine for itself whether it can The highest court of Illinois bas also refused enforce a foreign law without, at the same to enforce this same statute and provision of time, neglecting the duty that it owes to its the Kansas Constitution, on the ground that own citizens or subjects. It bas been held, the remedy was special, and must be pursued and is a principle universally recognized, that in the state where the corporation exists. Fouthe revenue laws of one country have no ler v. Lamson, 146 Ill. 472. In another case force in another. The exemption laws and (Young v. Farwell, 139 III. 326) it held that it laws relating to married women, as well as the could not enforce by action at law a statute of local statute of frauds and statutes authorizing Oregon for the collection of unpaid subscripdistress and sale for nonpayment of rent, are tions, for the reason that a complete settlement not recognized in another jurisdiction under of the controversy required a bill in equity, the principles of comity. Morgan v. Neville, where all the parties interested were before the 74 Pa. 52; Waldron v. Ritchings, 3 Daly, 288; court, so that complete justice could be meted Siegel v. Robinson, 56 Pa. 19,93 Am. Dec. 775; out to all, and conflicting rights and equities Relly v. Davenport, 1 Browne (Pa.) 231; Ro88 finally adjusted. Patterson v. Lynde, 112 III. v. Wigg, 34 Hun, 192; Ludlouv. Van Rens-196: Id. 106 U. S. 519, 27 L, ed. 265. By the selaer, 1 Johos. 95; Skinner v. Tinker, 34 Constitution and laws of Micbigan, stockholdBarb. 333. It is well understood, also, that the ers of corporations of that state are individually statutes of one slate giving a right of action to liable for certain debts to be enforced by acrecover a penalty have no force in another. tion of assumpsit; and the bighest court of Huntington v. Attrill, 146 U. S. 657, 36 L. ed. Wisconsin bas held that the remedy was exclu. 1123. So, also, rights of action arising under sive; that the corporation itself was a necessary foreign bankrupt, insolvent, or assignment laws party; and that the liability could be enforced are not recognized bere when prejudicial to the only in the courts of Michigan. May v. Black, interests of our own citizens. Warner v. Jaff- 77 Wis. 101. It has been also held, after exray, 96 N. Y. 248, 48 Am. Rep. 616; Re Waite, baustive consideration, that a creditor of an 99 N. Y. 433; Barth v. Backus, 140 N. Y. 230, Ohio corporation could not enforce the statu23 L. R. A. 47; Douglass v. Phenix Ins. Co. tory liability of a stockholder in the courts of 138 N. Y. 209, 20 L. R. A. 118. There is an. West Virginia. Nimick v. Mingo Iron Works other class of cases where the right to enforce Co. 25 W. Va. 184. There are numerous the foreign statute is conditionel upon the ex- other decisions in the state and Federal courts istence of a law substantially similar bere. that hold, in effect, either that such a liability Wooden v. Western N. Y. & P. R. Co. 126 N. cannot be enforced at all beyond the local juY. 10, 13 L. R. A. 458. Statutes giving a risdiction, or that such an action must be in right of action for negligence resulting in death equity after all remedies against the corporabelong to that class. Whitford v. Panama R. tion have been exhausted, and that, too, in the Co. 23 N. Y. 465. There are many other state where the stockholder is sought to be classes of foreign statutes affecting public and charged; or, at least, the bill must show upon private interests which courts have uniformly its face by proper allegations that such a proheld can have no extraterritorial force or effect. ceeding was impossible or that all the corporate From the general trend of judicial decisions in assets have been applied to the payment of ibe this country, and the consensus of authority claims of creditors. Terry v. Little, 101 U. S. on the question, it may be safely asserted that 216, 25 L. ed. 864; National Tube Works Co. rights of action such as are set forth in the v. Ballou, 146 U. S. 517, 36 L. ed. 1070; Polls complaint in this action are not enforceable in ard v. Bailey, 87 U. S. 20 Wall. 520, 22 L. ed. another jurisdiction upon any obligations of 376; Fourth Nat. Bank v. Francklyn, 120 '. comity. It has been held that an action by a S. 747, 30 L. ed. 825; Peck v. Miller, 39 Mich. New York creditor of a corporation organized 594; Barrick v. Gifford, 47 Ohio St. 181; under the manufacturing act of this state Allen v. Walsh, 25 Minn. 543; Smith v. Hluckaagainst a New Jersey trustee in the courts of bee, 53 Ala. 191. The decisions of our own courts. that stale, for veglect to file the apnual report, I are also to the effect that special remedies provided by foreign laws to enforce the liability be administered in such a way as to secure the of stockholders in foreign corporations must rights of all in the same action. This is the be applied by the courts of the state in the lo interpretation wbich we have given to our own cal jurisdiction, and where the corporation is statuies enacted for a similar purpose. It is domiciled. Lowry v. Inmon, 46 N. Y. 119; clear that this cannot be done in ibis action, Christensen v. Eno, 106 N. Y. 97, 60 Am. Rep. since the theory of the plaintiff is that the de429; Barnes v. Wheaton, 80 Hun, 8. The fendant is liable in successive actions at law by statutes in these cases were, it is true, different creditors, suing separately, until he has paid a in some respects from that now under consid- sum equal to his stock, and then he must resort eration; but when these cases are read with to some other jurisdiction for contribution. some of our more recent decisions as to the This would be most unjust and oppressive, and mode of enforcing the liability of stockholders it is safe to say that no well-considered case in our own corporations, it becomes at once can be found that sanctions such a principle. apparent that they apply to the statute in ques- Wbile this is not an action for a penalty yet tion. National Bank v. Dillingham, 147 N. we think that it belongs to a class of cases in Y. 603.
which there is no obligation, under any wellThe objection to this action does not rest recognized principle of the law of comity, to upon the principle that the plaintiff is seeking enforce a claim founded upon such a statute. to enforce a statute for the recovery of a pen. Moreover, the right asserted and the remedy alty, since the liability is not penal in any in- provided are of such a nature that they cannot ternational sense, but arises upon the statute be given any practical effect here without inas an implied obligation which the defendant justice to our own citizens. We are virtually assumed when he purchased his stock. Coch asked to ignore our own rules of construction ran v. Wiechers, 119 N. Y. 399,7 L R. A. and methods of procedure in order to compel 553; Flash v. Conn, 109 U. S. 371, 27 L. ed. the defendant to pay to foreign creditors a sum 966; Richmond v. Irons, 121 U. 8. 27, 30 L, ed. equal to his holdings of stock, without any 864. The case involves questions wbich open power to inquire into the necessity for it by an a broad field for investigation. It would take accounting or to secure to him any recourse much time and labor to explore it thoroughly. against others equally liable. When the courts It would, perbaps, be impossible to state the of tbis state are asked to administer the statutes principle upon which the decision sbould rest of Kansas, and we can see that the case is surwithout apparently coming in conflict with rounded with such complications and the cir. some of the numerous cases on the subject at cumstances are such that it cannot be done some point. The great weight of authority, without injustice to our own citizens, or that as will be seen, is against the right to maintain it will be impossible to do full and complete such an action. Sometimes the decision is justice to all the parties in interest, it is reaput upon one ground, and sometimes upon an- sonable and just to decline to administer them otber, but it is to be noticed that the party seek at all. ing to enforce such a statute in a foreign juris. The judgment of the General and Special diction has been quite uniformly defeated. Terms should be reversed, with costs in all courts, The statute in question, while creating a cer- and the demurrer sustained, with leave to ibe taip liability on the part of a stockbolder to a plaintiff to amend the complaint on payment creditor of a corporation, at the same time of costs. gives to the former certain rights as against his All concur. fellow stockholders for contribution. It should |
INDIANA SUPREME COURT.
PITTSBURGH, CINCINNATI, CHICAGO, 12. A longband manuscript of alleged evi
& ST. LOUIS RAILROAD COMPANY. dence cannot be regarded as a bill of exceptions Appt.,
(February 27, 1895.)
the Circuit Court for Delaware County in 1. Trainmen are not guilty of wilful favor of plaintiff in an action brought to reor wanton neglect of duty in failing to
cover damages for personal injuries alleged to stop a freight train running on a sbarp up- bave resulted from defendant's negligence. grade at a speed of 8 miles an hour, to remove a Rerersed. boy eight years and five months old, who in vio
The facts are stated in the opinion. lation of the statutes as well as of the orders
Messrs. Burchenal & Rupe for appelof the engineer caught hold of and bung to one of the cars in the moving train,-especially where
lant. it does not appear that the train could be safely
Messrs. J. M. Morris and Brown & stopped at that place.
Brown for appellee.
NOTE.-For cases somewhat akin to the above, Smith v. Louisville & N. R. Co. (Ky.) 22 L. R. A. see Planz v. Boston & A.R. Co. (Mass.) 17 L. R.A. 835; 72; and Houston, C. A. & N. R. Co.,v. Bolling (Ark.) Farber v. Missouri P. R. Co. (Mo.) 20 L. R. A. 350; 27 L. R. A. 190.
Howard, J., delivered the opinion of the length of the cars of said train was 33 or 34 court;
feet. That as soon as said Muckridge saw From the special verdict in this case it ap- the accident he made the remark to the engin. pears that on the 25th day of September, 1891, eer, standing at bis side, We have got bim,' the appellant company ran a train of cars, in a or“We have killed him.' That no effort was southeasterly direction, through the city of made to stop or check the speed of said train New Castle, the train consisting of a locomo-whilst the plaintiff was so hanging upon said tive engine, tender, twenty-seven loaded box car. That at the time the plaintiff got upon cars, and a caboose. It was a through freight. said car he did not fully realize or appreciate passing through the town between 4 and 5 the danger or peril of his act." o'clock in the afternoon, and without making We do not think that this verdict finds facts any stop at the depot. The appellee was at the sufficient to entitle appellee to judgment. It time eight years and five months old, and first appears that he was a trespasser upon aplived in the town, with his father and mother. pellant's train; not a technical trespasser simThe father was on tbis day engaged at work as ply, but a trespasser in direct violation of the a carpenter at a point several miles distant order of the engineer, who saw him standing from the town. The boy had been at school near the moving train, and said to him in during the day, and returned home after dis- warning: Go away from there." He was missal of school, about balf-past 3 o'clock. also on the train in disobedience to his mothAbout 4 o'clock, his mother, who was engaged er's command, since she told him to return at her trade as seamstress, permitted bim to home after his ride upon the wagon. His go out and ride upon a wagon for a distance climbing upon a moving car was, moreover, a of a square and a balf, with directions to then misdemeanor under the statutes of the state. return home. Instead of returning as directed, Rev. Stat. 1894, $ 2290 (Rev. Stat. 1881, $ 2169). appellee wandered on for some squares, until This is not like the case of Louisville, N. A. & he crossed to the south side of the railroad C. R. Co. v. Sears, 11 Ind. App. 654, where a track, where he stood as said freight train boy nearly eight years of age, playing upon came along. As the engine approached and the street, slipped, and without fault on his passed the place wbere appellee stood, the en- part was accidentally thrown upon the track, gineer noticed him, and said to him, "Go where he was run over, and bis legs taken away from there.” The special verdict then off by a passing train. The only question for continues: “That the plaintiff, George Red- decision in the case at bar, taking into considding, iben went to a point about 20 feet east of eration the tender years of the appellee, and the east side of Byer street, on the south side the fact that he did not realize or appreciate of the track; and, as the fourth or fifth car of the danger and peril of his act, is whether the apsaid train to the rear of the engine passed him, pellant was or was not guilty of wilful or wanhe seized hold of an iron attached on the side ton neglect of duty in pot stopping the train and near the end of said car, and drew himself up, removing the boy, when his danger was disand rested bis right knee on an iron loop or covered. In Cincinnati, H. & D. R. Co. v. half ring attached to the sill of the car, and Kassen, 49 Ohio St. 230, 16 L. R. A. 674, a his left foot on the lid of the grease box of the passenger fell off the rear of one train, and lay truck, in wbich position be rode on said car stunned upon the track, when a train followa distance of 300 feet. At the time the plaining in an hour afterwards ran over and killed tiff so seized hold of said car the said train him. The employees of the first train, though was running at a speed of 8 miles an hour informed that the man had fallen off, refused and on a sharp up, grade. That at the time to stop the train, and take bim up, or give nothe plaintiff so seized hold and hung upon tice to the crew of the following train so that said car the fireman of said freight train, James they might not injure him; and for such wil. R. Muckridge, was standing within 3 feet and ful and inexcusable neglect of duty and disin touching distance of the engineer, and saw regard of the dictates of our common human. plaintiff get upon said car and saw hțm hang- ity the company was rightly held answerable ing thereon, and ride thereon to the place in damages. In the case before us, however, where he fell off, and could easily bave called it does not appear from the facts found that the attention of the engineer to the situation the boy was necessarily in danger. He had and condition of the plaintiff. And during climbed upon the train, apparently at the the time that the plaintiff was so upon said same place provided for the use of employees car, the said Muckridge made backward and in mounting the cars; and to the fireman, who forward motions with his right arm and hand saw bim there, it may not bave seemed so toward and at the plaintiff, which frightened dangerous a situation as in fact it was. The and caused tbe plaintiff to jump off the car, fireman and the engineer, both of whom apand whilst the car was so in motion as afore- parently knew of the presence of the boy said; and in alighting the plaintiff fell un clinging to the box car, may bave thought der said car, with his left leg across the rail of that, as he had got there while the train was said railroad, and the car wheels passed over in motion, he might bold on there in safety, it, and so crushed and mutilated it as to leave or that be might jump off with even greater it hanging together with the shreds of flesh ease and safety than he had jumped on. At and the sinews. That amputation was made least it does not seem clearly a case of criminecessary, and soon thereafter, on said day, nal carelessness on the part of the train embad. That said train could bave been easily ployees to have continued the train in motion stopped within a distance of four or five car on the sharp_up grade" on which it was lengths before reaching the point of the acci- tben moving. It was not a suitable place to dent, after the plaintiff was seen upon said stop a loaded freight train. Besides, it may train by said Muckridge. That the average have been dangerous to do so. The verdict
shows that the train could have been stopped Catherine DANTZER et al., Appts., in a few car lengths, but it does not find that this might safely be done. A passenger train INDIANAPOLIS UNION RAILWAY -as in the Ohio case which we have cited
COMPANY. might be closely following this freight, and, for all that appears, up this same steep grade.
(141 Ind. 604.) If that were so, the stopping of the freight train might be attended with great danger to 1. A constitutional right to a remedy passengers and to the crews of both trains. for injury to property does not include the In addition, it is not clear that the stopping right to recover for an injury not different in of the train might not have jerked the boy off kind but only in degree from that suffered by even more quickly than he jumped off him. the community in general from the vacation of self. It is found in the verdict that the for
a remote part of a street, though it causes depreward and backward motion of the fireman's
ciation in the value of property, but leaves ample arm frightened the appellee, so that he jumped
means of access thereto. off. This, we think, must be regarded as a 2. Depreciation in the value of property mere conclusion. Appellee was not frightened
by the added inconvenience of access by the warning of the engineer, when told to
thereto consequent on the vacation of a part of a keep away from the moving train.
street at a point some distance therefrom is an
injury not different in kind, but only in degree. mounting the train seems, at least, as danger
from that suffered by the community in general, -ous an act as was the dismounting. The ac
and will not sustain a right of action for damtion in the last case may have been due quite
ages. as much to the boy's own consciousness of 3. Whether a legal injury is pleaded by wrongdoing as to any fear caused by the mo
alleging the vacation of a part of a street at tions of the fireman's arm. The motions, be- some distance from one's property is a question sides, may bave been by way of caution of law for the court, and not a question for the quite as much as threat. Thay may have jury. meant "bold on tight" quite as well as jump
(McCabe, J., dissents.) Appellee, notwithstanding his tender years, was unquestionably quick, active, and
(December 21, 1894.) upusually daring. The trainmen, accustomed themselves to take such risks as the boy was A taking, may bave honestly believed him to be
the Circuit Court for Marion County in iv po great dauger. He was a wrongdoer, and favor of defendant in an action brought to reit is not clear that they were guilty of wilfully cover damages for alleged wrongful interferinjuring bin. If the facts are correctly found ence with a street which was one of the means by the jury, we do not thivk the company is li- of access to plaintiff's property. Affirmed. able. See Planz v. Boston & A. R. Co. 157 Mass.
The facts are stated in the opinion. 377. 17 L. K. A. 835.
Me88r8. Claypool & Claypool, W. A. Both appellant and appellee refer to the Ketcham, Duncan & Smith, and A. evidence in discussing the verdict, but the Seidensticker for appellants. evidence is not in the record. The clerk does
Messrs. Baker & Daniels and F. Winter not show that a bill of exceptions containing for appellee. the evidence was ever filed in his office. It is perhaps shown that a longband manuscript of
Hackney, J., delivered the opinion of the alleged evidence was filed in the clerk's office.
court: But the longband manuscript is not a bill of Formerly, the appellee's station for the reexceptions. It should, after filing in the clerk's ception and discharge of passengers for all of office, be embodied in a bill of exceptions; the railways entering the city of Indianapolis and This bill of exceptions, with the long was bounded on the north by Louisiana street, hand manuscript so embodied therein, should, on the east by Meridian street, on the south by after having been presented to and signed McNabb street, and on the west by Illinois by the judge, within the time given, be street. McNabb street extended but to the infiled in the clerk's office. All this, besides, tersections of Meridian and Illinois streets. should appear from the record, and over the One square south of McNabb street, and parcertificate and seal of the clerk. We need allel with that street, was and is South street, not, perbaps, presume that a court stenog. extending east and west, and connecting with rapber knows how to make up a bill of ex- | numerous streets of said city running north ceptions. It is not bis duty to do this. He and south. Between McNabb and South is sworn simply to take down and transcribe streets, about midway, and on the west side the evidence, rulings, etc. However this may of Illinois street were, and ever since have be, it is the duty of the appellant to bring a been, the lots of the appellants, upon which correct record to this court; and our decisions was erected and maintained a public hotel. At cannot be made up from an examination of that time Illinois street extended for miles papers which form no part of the record. We north and south of appellants' property, which are of opinion that in this case justice may abutted upon it, and was free to public travel more certainly be attained by granting a new upon its surface, excepting as the appellee's trial than in any other way.
railway tracks crossed the same. Beneath the The judgment is therefore reversed, with in- surface of said Illinois street, and under said structions to grant a new trial.
NOTE.-As to damages to abutting owner by va
cation of bighway, see note to People, Hart, v. Monks, J., took Do part in the decision of Marin County (Cal.) 28 L. R. A. 662; also Chicago v. this case.
Burcky (III.) 2L. R. A. 569.