cuit court of the county? In Lewis v. People, 82 II. 104, we held that section 187, c. 37. Rev. St. 1874, allowed an appeal from the county court to the circuit court in all cases not otherwise provided for in the 188th section of the same chapter; that the latter section provided for appeals and writs of error only in judgments for the sale of lands for taxes and special assessments, and from orders on applications by executors, administrators, guardians, and conservators for the sale of real estate; and so, not including prosecutions for bastardy, they are necessarily within the 187th section, and the appeal in such case must be to the circuit. court alone. That ruling was followed in Hauskins v. People, 82 Ill. 193; Stanley v. People, 84 Ill. 193. The ruling seems to have been recognized by the court in Scharf v. People, 134 Ill. at page 246, 24 N. E. Rep. 761, wherein it was said the defendant was permitted the verdict of two juries. But that remark was entirely obiter, as there was nothing in the case then before the court calling for it. Since the decision in Lewis' Case, and other cases decided upon the ruling in that case, the general assembly has created the appellate court, and, by an amendment to section 8 of that act, (Rev. St. 1891, c. 37, § 25,) it is now provided that the appellate court "shall have jurisdiction of all matters of appeal or writs of error from the final judgments, orders, or decrees of of any of the * county courts, ** in any suit or proceeding at law or in chancery, other than criminal cases, not misdemeanors," etc. Laws 1887, p. 156. This operates as an amendment of section 188 of the Practice Act, supra; and it should be read and construed as a part thereof. When it is so read, it is plain the effect is to give the appeal in the hastardy case direct to the appellate court; for, although a bastardy proceeding is not a suit at common law, it is clearly "a proceeding at law." The manifest purpose is to make the appeal in all cases enumerated from the final order, judgment, or decree of the county court to the appellate court. The appellate court erred in dismissing the appeal, and for that error its judgment is reversed, and the cause is remanded.

(156 Mass. 193)

*

*

SNOW V. ALLEY.

(Supreme Judicial Court of Massachusetts. Barnstable. April 4, 1892.)

ELECTION OF REMEDIES-WHAT CONSTITUTES-PAROL EVIDENCE- NEW TRIAL-NOMINAL DAM

AGES.

1. Plaintiff delivered to defendant 150 corporate bonds, the latter agreeing, in consideration therefor, to buy a number of like bonds at a certain price, loan a sum of money on other like tonds, and to return 75 of the bonds upon a certain contingency. Plaintiff brought trover to recover the entire 150 bonds, on the ground that he had a right to rescind the contract because of defendant's bad faith, and recovered those returnable upon the contingency only. Held, that he was not thereby precluded from maintaining an action for the breach of the contract to buy bonds and loan money.

2. It was competent to prove said agreements by parol, although they did not appear in the

written agreement transferring the bonds, which recited executed considerations only.

3. The court having directed a verdict for defendant on the ground that plaintiff was precluded from maintaining the action, a new trial should be had, as it cannot be said that plaintiff's damage by the refusal to loan the money and pay for the bonds is only nominal, there being evidence that when the contract was broken the bonds were worth less than the price to be paid for them.

Report from superior court, Barnstable county.

Action by Chester Snow against John B. Alley for breach of an alleged contract, whereby defendant promised, in consideration of 150 bonds of the Postal Telegraph Company, 75 of which were to be returned upon a certain contingency, to purchase 32 like bonds, and loan a sum of money on other like bonds. There was a judgment for defendant, and plaintiff excepts. Exceptions sustained.

H. P. Harriman, E. C. Bumpus, and R. F. Simes, for plaintiff. A. A. Ranney and F. Ranney, for defendant.

HOLMES, J. This is an action for the breach of an alleged contract to buy of the plaintiff 32 Postal Telegraph Company bonds for half their par value, viz., for $16,000, and to lend the plaintiff $20,000 on other like bonds, in consideration of the plaintiff's agreeing to give the defendant 75 like bonds.

The defenses are a general denial, and that the plaintiff has precluded himself from this action by electing a different remedy.

The case was tried before a jury, and at the conclusion of the evidence the judge ruled that the defense had been maintained, and directed a verdict for the defendant.

The ground on which the defendant goes is this: At the time of the transaction between the plaintiff and the defendant, whatever it was, the plaintiff delivered to the defendant 150 bonds. According to the plaintiff's version, only 75 of these were to come from him ultimately, and the defendant agreed, in the event which happened, to return 75 of them. The plaintiff sued the defendant in trover for 150 bonds in the case which was before this court in 144 Mass. 546, 11 N. E. Rep. 764, and 151 Mass. 14, 23 N. E. Rep. 576.

In that suit he took the ground that the defendant induced him to part with the bonds by making promises which he intended not to keep, and that this entitled him to repudiate the bargain, and to demand back the 150 bonds. But, if the plaintiff failed on this ground, still, if the jury believed his testimony as to what the bargain was, he could recover on the same count for the 75 bonds which belonged to him, and which he was entitled to demand and had demanded, as he said.

That either the 150 bonds or the 75 bonds could be recovered for under the same count is an accidental result of the rules of pleading and practice in trover. But, although the same count answered for a recovery either way, it is plain that the two claims are inconsistent and alternative. That for the 150 bonds stood on a repudiation of the contract; that for the 75 was in pursuance of it. The jury

found for the plaintiff for the value of 75 bonds; and it appears, not only from the terms in which the case was left to them by the charge, but from their answers to questions put to them by the court, that they did not find that the plaintiff was entitled to repudiate the contract; that they accepted his version of what the contract was; and that they found that under it he remained owner, and was entitled to a return, of 75 bonds, and gave him their verdict on that ground.

If, then, the former proceeding establishes anything, it establishes that the plaintiff is entitled to insist upon his contract, since, although he began his suit intending to repudiate it, if he could make out a case for doing so, he took his judgment on the footing that it was in force. But, apart from this answer, the defendant's argument rests on a misapprehension of the nature of election. Election exists when a party has two alternative and inconsistent rights, and it is determined by a manifestation of choice. Metcalf v. Williams, 144 Mass. 452, 11 N. E. Rep. 700. But the fact that a party wrongly supposes that he has two such rights, and attempts to choose the one to which he is not entitled, is not enough to prevent his exercising the other, if he is entitled to that. There would be no sense or principle in such a rule. Butler v. Hildreth, 5 Metc. (Mass.) 49, 52; Snow v Alley, 144 Mass. 546, 554, 560, 11 N. E. Rep. 764; Whiteside v. Brawley, 152 Mass. 135, 24 N. E. Rep. 1088; Morris v. Rexford, 18 N. Y. 552, 557.

It was suggested, but not much pressed. that, if the plaintiff recovered for the 75 bonds under the contract, he could not now recover upon the promises in the same contract. The answer is obvious. The plaintiff has not attempted to split up an entire promise. The former recov ery did not stand upon promises, but upon property. The contract was only material to show that in the event which happened the plaintiff's delivery of the bonds divested the title of only 75 of them. The recovery for the bonds leaves the alleged breach of the defendant's promises untouched, and the proper subject of an independent action.

It was argued further that the plaintiff could not prove the promises declared on, because in a written instrument signed by the plaintiff, and purporting to transfer the 150 bonds, other considerations are stated for the transfer, and the promises are not mentioned. But the plaintiff has a right to prove other considerations besides those set forth in the instrument, which, so far as appears from the writing, were executed, and, therefore, however largely they may have induced the transaction in fact, could not constitute the conventional inducement of a promise or grant, if one was necessary. Miller v. Goodwin, 8 Gray, 542; Ayer v. Manufacturing Co., 147 Mass. 46, 16 N. E. Rep. 754. See Snow v. Alley, 151 Mass. 14, 25 N. E. Rep. 576.

It would seem, too, that the plaintiff was prepared to offer evidence that he was inisled as to the contents of the paper he was signing, and signed it without readingit. Freedley v. French, 154 Mass. 339, 28 |

N. E. Rep. 272; Peaslee v. Peaslee, 147 Mass. 171, 180, 181, 17 N. E. Rep. 506. Finally, it is argued that the damages could have been only nominal, and that, therefore, a new trial ought not to be allowed. But we cannot say so as matter of law. It is argued that the value of the bonds at the time of the alleged contract was 55 per cent. of their par value, but there was some evidence that when the contract was broken only 25 per cent. could be got for them. Possibly, too, substantial damages might be recovered for the refusal to lend $20,000. Ilsley v. Jones, 12 Gray, 260. Case to stand for trial.

STOCKHOLDERS-PLEADING.

1. An averment in a petition to enforce against stockholders liability for a judgment rendered December 24, 1882, against an insolvent street railroad company, upon a cause of action' accruing April 7, 1872, which charges that the "company is a corporation duly incorporated under the laws of the state of Ohio, was such corporation prior to the indebtedness hereinafter described, is a sufficient averment that the corporation was organized under a law which provided for a liability on the part of stockholders, at least to the extent required by

the constitution.

and

2. Section 3 of article 13 of the constitution, which provides that "dues from corporations shall be secured by such individual liability of the stockholders and other means as may be prescribed by law, but, in all cases, each stockholder shall be liable, over and above the stock by him or her owned, and any amount unpaid thereon, to a further sum at least equal in amount to such stock," is a remedial provision, intended to afford a remedy to those who have just claims upon insolvent corporations, and will therefore receive a beneficial construction for the purpose of extending the benefit to all who may fairly come within the meaning of its terms. Giving to the word "dues" such construction, it will include, not only a claim for a debt arising upon contract, but a demand for unliquidated damages arising from a tort.

(Syllabus by the Court.)

Error to circuit court, Franklin county. The facts fully appear in the following statement by SPEAR, C. J.:

The action in the common pleas court was brought by defendant in error, a judgment creditor of the Fairwood StreetRailroad Company, a corporation, to enforce, on behalf of himself and all other creditors of the company, the statutory liability of stockholders. It was alleged in the petition that the "railroad company is a corporation duly incorporated under the laws of Ohio, * and was such corporation prior to the indebtedness hereinafter described." The petition further alleged the recovery, December 26, 1882, of a judgment by the plaintiff against the company for $1,263.64; the insolvency of the company at the time and since; and that the company had no property subject to execution; also that the judg. ment was in full force and unsatisfied, save a payment thereon of $211.40, June 19, 1883. It was further averred that plaintiff's cause of action upon which the judg ment was rendered was a claim for damages for negligently causing the death of

plaintiff's intestate, April 7, 1872. The names of those claimed to be stockholders were set out, with the amount of stock claimed to be held by each. In this list was the name of Fannie Peck, who, it was alleged, was the owner of 55 shares. The usual prayer followed. By an amended petition filed October 25, 1886, the plaintiff in error was made a party, as to whom it was therein alleged that he was the assignor of the shares of stock standing in the name of Fannie Peck; (who was at the beginning of the suit, and still is, insolvent,) the assignment having been made between the years 1878 and 1880. Answer was interposed by plaintiff in error setting up the statute of limitations of six years, to which a reply was filed denying the same. Such further proceed. ings were had that at the April term, 1887, final judgment was rendered, in which the court found the names of the creditors and amounts due each, the names of the stockholders liable, the amount of stock held by each, and the amount each solvent stockholder should be assessed in order to pay the debts, costs, etc. This amount assessed was a little less than 50 per cent. of the full statutory liability of each solvent stockholder. The plaintiff in error was one of those su assessed, the judgment against him being for $1,269. Error was prosecuted to the circuit court, where the sole ground urged was that the petition did not set forth a cause of action, and the judgment was erroneous because the individual liability of stockholders is incident only to such demands against the corporation as arise out of its contracts, not extending to such as sound in tort. The judgment of the common pleas was affirmed by the circuit court.

J. M. Swartz, J. V. Lee, and O. W. Aldrich, for plaintiff in error. Chas. E. Burr and T. M. Livesay, for defendant in error.

SPEAR, C. J. A preliminary question arises upon an objection made by defendant in error that, because the plaintiff in error has brought into this court as defendant only the plaintiff below, the court cannot have jurisdiction for want of necessary parties. If it were sought to reverse the judgment below on a point of error applicable solely to the plaintiff in error, there might be force in this objection. But, if the petition does not make a case against any of the alleged stockholders, it cannot prejudice the defendant in error that the other parties below are not parties in this court. The petition is attacked here on two grounds: (1) That it is insufficient for want of an averment that the streetrailroad company was incorporated since the adoption of the constitution of 1851; (2) that there can be no liability in the present case against stockholders, because stockholders are not liable for obligations of the corporation growing out of torts.

1. In support of the first proposition. the argument is that, in order to maintain the petition, it must be held that stockholders in all corporations incorporated under the laws of Ohio are liable for the debts or liabilities of the corporation,

which cannot be, for the reason that as to many, if not all, corporations organized prior to the adoption of the present constitution, no statutory liability whatever was imposed on stockholders. Hence an allegation such as is contained in the petition in this case, that the "company is a corporation duly incorporated under the laws of the state of Ohio," is not an allegation of organization under a law which imposes liability upon stockholders. The point is one of some nicety, but we are not impressed with its sufficiency. It will be noted that no demurrer was interposed by the plaintiff in error to the petition. On the contrary, he answered and went to trial. He filed no motion for a new trial, took no bill of exceptions, nor did he ask a special finding of facts. The attention of the trial court was not called to this alleged defect in the petition, nor does it appear to have been urged in the circuit court. Indeed, it is stated in defendant's brief, and not denied, that, upon the argument in the last named court, it was con. ceded that the company was incorporated under the act of April 10, 1861, which act imposes liability in the identical terms of the constitution. It would appear that the party is rather late in making this objection, especially as he has apparently suffered no prejudice. However, waiving this, we think it proper to judicially notice that no statute existed prior to the adoption of the present constitution authorizing the incorporation of a street-railroad company, and, having in mind the duty enjoined by our Code, to construe pleadings liberally in order to assist the parties in obtaining justice, we are of opinion that the allegation that the "company is a corporation, duly incorporated under the laws of the state of Ohio," is a sufficient averment that it was incorporated under a law enacted since the adoption of the present constitution; and, as no such statute would have been valid which did not impose the constitutional liability, (State v. Sherman, 22 Ohio St. 411,) and as it is not to be assumed that the legislature would enact an invalid statute, the further conclusion would follow that the company was incorporated under a law which did subject stockholders to liability for obligations of the corporation.

2. A more serious question arises with respect to the second point. Can the stockholders of an Ohio corporation be held for obligations of the corporation growing out of torts? It follows, from what has already been stated, that we must assume that this street-railroad company was organized under a law which imposed upon stockholders just such liability as the constitutional provision requires. We look, therefore, to the constitution as our guide. The provision (section 3, art. 13) is: "Dues froin corporations shall be secured by such individual liability of the stockholders and other meaus as may be prescribed by law; but, in all cases, each stockholder shall be liable, over and above the stock by him or her owned, and any amount unpaid thereon, to a further sum, at least equal in amount to such stock." The question

turns upon the import of the word "dues. It has been contended that provisions creating individual liability on the part of the stockholders are in derogation of the common law, and are therefore to be construed strictly. Authorities in support of this rule are not wanting, and, in so far as such liability is attached by way of penalty for the omission of some act required by the statute, as in some of the states, it is probable that the weight of authority favors the proposition. But all concede that this is a remedial provision, and to hold that there must be applied to it the same test as if it were a penal law is to hold that all remedial laws must be so construed, for every remedial law must of necessity be in derogation of the common law. Where the provision is simply remedial, though it does impose an obligation which did not attach at common law, we see no reason to insist upon what is called a strict construction, but believe that the ordinary rule, which requires the court to inquire simply as to the intent of the lawmakers, reading the provisions as they were intended to be read, will best attain the ends of justice. This leads us to look to the intent of the section quoted. Speaking in general terms, it must be manifest that the intent was to provide that those who derive advantage from the authority of the state, given by our incorporation laws, shall, at the same time, assume responsibility for the acts of the artificial creature which they have called into legal being, affecting the rights of others.

Hav

ing in mind this general intent, and the provision being remedial, it should, we think, be construed with a view to remove the evil and extend the benefit proposed.

It is conceded that, if a cause of action for a tort can be treated as a "debt," the liability of the stockholders for it would follow. The affirmative of this is asserted, and the following authorities are cited in its support: Carver v. Manufacturing Co., 2 Story, 432; Milldam Foundrey v. Hovey, 21 Pick. 417; Grey v. Bennett, 3 Metc. (Mass.) 522; Smith v. Omans, 17 Wis. 395; and White v. Hunt, 6 N. J. Law, 418. To the contrary of this, counsel for plaintiff in error cite: Bohn v. Brown, 33 Mich. 257; Cable v. McCune, 26 Mo. 371; Doolittle v. Marsh, 11 Neb. 248, 9 N. W. Rep. 54; Heacock v. Sherman, 14 Wend. 59; Archer v. Rose, 3 Brewst. 264; Child v. Iron-Works, 137 Mass. 516; Cook, Stocks, 220; Mor. Priv. Corp. 608, 613; Manson v. Jacob, (Mo. Sup.) 6 S. W. Rep. 251; Evans v. Lewis, 30 Ohio St. 14; Crouch v. Gridley, 6 Hill, 250; Kellogg v. Schuyler, 2 Denio, 73; and Zimmer v. Schleehauf, 115 Mass. 52. A review of these authorities would be important if a holding upon the proposition were necessary to a decision of the case before us. We think it is not.

It would seem to be the undoubted duty of the court to give the word "dues,' as found in the section quoted, such construction as will secure the apparent object of the constitution makers in its adoption. Constitutions are necessarily couched in terse language, and we look there for the use of words in a broad, comprehensive sense. This term "dues" is of extended import. Among other defini

tions, Latham gives the singular: Owed; capable of being justly demanded; that which may be justly claimed. Worcester: That which any one has a right to demand. Webster: That ought to be paid or done to or for another; justly claimed as a right or property; fulfilling obligation; that which belongs or may be claimed as a right; whatever custom, law, or morality requires to be done; right, just title, or claim. Bouvier defines it as what ought to be paid; what may be demanded. It seems natural to say that, where one is injured by the negligence of another, reparation is due. This implies a legal demand for reparation, and in Heacock v. Sherman, supra, Justice NELSON admits that the word "demand found in the New York statute, if it stood alone, would be broad enough to include a cause of action for a tort. It is difficult to see any reason why the framers of the constitution should intend to afford one who gives credit for goods or money to a corporation a right to demand compensation of the stockholders in case of insolvency, and deny a like right to one who intrusts it with the care of his person, as in the case of a passenger, or to one, even a stranger, who, without fault on his part, is injured by the negligence of the corporation's agents. It may well be asked, are the rights of things more sacred than the rights of persons? Is there any rule of public policy which would justify the protection of rights arising ex contractu, which would not equally call for protection of rights arising ex delicto, or any claim for unliquidated damages? Suppose, as is suggested by Mr. Justice STORY, in illustrating his propositions in Carver v. Manuf'g Co., supra, a contract by a corporation to manufacture goods of a particular quality or character, or to employ workmen, to be wholly broken, so that the right of the injured party would be, not to money, but to unliquidated damages; if these would be without the purview of the statute, it would have a very narrow and inadequate range. Or suppose a manufacturing corporation obstructs its neighbor's mill privilege, or stop his works by back flowage; we see, at once, that an insolvent corporation might do irreparable mischief without any just redress. Or suppose an insolvent corporation should unlawfully convert 1,000 bales of cotton belonging to a third person; the mischief could be redressed only by an action of trover for unliquidated damages, and if the individual operators were not liable, after an unsatisfied judgment, the statute would be little more than a delusion. A narrow construction would exclude recovery in all these.cases; a broad, liberal construction, such as should be given to a remedial provision, would afford relief, and thus attain the object which, it would seem, was in the contemplation of the lawmakers. As conclusion we are of the

opinion that the word "dues" should rereive a beneficial construction,-one which will include within its scope as well a demand for unliquidated damages for a tort as a claim for a debt arising upon contract.