PM. RY. CO.
55
to take the risk of. purchasing the property when it was doubtful whether the investment would entail a loss or yield a profit, it should not be permitted at this late day and in the light of subsequent events to reconsider that resolution. The profits, if in the end there are any, justly belong to the purchaser, who took the risk, and whose labor and capital hava added largely to the value of the property. As was said by the court in Wood v. Carpenter, 8upra, it is impossible "to avoid the conviction that the plaintiff's conduct marks the difference between forethought in one condition of things and afterthought in ano,ther." Laches need not be pleaded. If the objection is apparent on the bill itself, it may be taken by demurrer. Maxwell v. Kennedy, 8 Ho)V. 222; Lansdale v. Smith, 16 Cent. Law J. 28; [So C. 1 Sup. Ct.Rep. 350,] And if the cause, as it appears 'on the hearing, is liable to the objection, the court will refuse relief, without inquiring whether there is a demurrer, plea, or answer setting it up. Sullivan v. Port· land R. Co. 94 U. S.81l; Badger v. Badger, 2 Wap. 95.' The plaintiff and all other purchasers of the first·mortgage bonds have undoubtedly lost the money invested in them. But they did not lose it ,by the foreclosure proceedings. It was lost from the instant itwas invested in bonds, secured by a mortgage on a road which an existenoe onlyit;l name. .Ifthey have any just ground. of complaint, it would seem to be against those whose representations ducedthem to purchase. the bonds, and who probably used the' pro'. ceeds for purposes other thap building the road. Let a decree be entered dismissing the bill fol' want of equity, at plaintiff's costs. ' o' _
MORGAN V. KANSAS l'AO.
J:ty. uo.
and
others.
(Oircuit (Jourt, /3. D. NeJ1lJ York.
September 11,1882.)
Where an action is. brought by a bondholder of .a fo1' an accounting and an injunction against a railroad company, wherein he makes the trustee under an income mortgage defendant,it must be alleged: and proved "that such trustee :has been requested to bring SUCh action, and, that he neg. lected and failed to do so, and that he is, therefore, made a defendant in the action. SAME-NECESSARY PARTY.
2.
, A party who is a Bole trustee under anfncome of 1\ raiIroadcorporation, is a necessary party to a suit against such corporation for an accounting , ..nndan injunction, and on to join ,him as be
56
FEDERAL REPORTER. although it is shown that he was not and could not be found within the district to be served with process. where the issue is as to whether he was req uested and refused to sue.
In Equity. Bill in equity by the holder of certain coupons attached to income bonds of the Kansas Pacific Railway Company, for an accounting and a decree of payment. The plaintiff sues "on behalf of himself and all other holders of income bonds who may show themselves entitled to relief, and who shall in due time come in and ask relief by and contribute to the expenses of this suit." Lewis, the trustee of the bonds, was named as defendant to the bill, but was not served with process, and did not appear in the cause.. The bill averred a request upon Lewis to bring this Buit, but no proof of the averment was offered at the hearing. G. H. Forster, for plaintiff. J. F. Dillon and A. H. Holmes, for defendants. BLATCHl"ORD, Justice. Benjamin_ W. Lewis is named in the bill as a defendant. Process of subpoona is prayed against him in the bill. The bill avers that "during-the several years last past the defendant Benjamin W. Lewis has duly become sole trustee under said income mortgage," and "has been requested to bring an action for the accounting and injunction asked by the plaintiff herein, but he has neglected and failed to bring such action or comply with said request, and he is, therefore, made a defendant in this action." The answer of the Kansas Pacific Railway Company admits that "during several years last past Benjamin W. Lewis has been the sole trustee under said income mortgage, but it has no knowledge or information suffi· cient to form a belief as to whether or not he has been requested by complainant to bring an action for the accounting and injunction asked by complainant herein." This raises an issue as to the requost to Lewis. Lewis, being the trustee under the mortgage, is the proper party plaintiff in a suit of this character, and some good reason must ap· pear of record why he does not sue as plaintiff; and, in such case, he must be made. defendant. The bill recognizes this necessity, and hence makes the averments referred to. The averment as to the request to Lewis is controverted. but it is not proved on the part of the plaintiff. It would be necessary to prove it, even though Lewis were served with process or appeared. It is not alleged in the bill that he is beyond the jurisdiction of the court, nor is that fact proved. The bill, it is true, describes Lewis as "of the city of St. Louis," and
'HALL V. MEMPHIS .. O. B. 00. II
57
as a citizen of the state of Missouri." But that is not sufficient And even if it were shown that Lewis was not and could not be found within this district, to be served with process, there is nothing in section 737 of the Revised Statutes which makes it proper for the court to adjudicate the suit without the presence of Lewis, because the issue as to whether Lewis refused to sue, as stated, is one on which Lewis must be heard, and under section 737 he cannot be concluded or prejudiced by a decree rendered in his absence. The statute cannot be construed so as to convert real parties and necessary parties into no parties at all. There is, in this case, no suit to adjudicate unlesa Lewis be plaintiff, or unless, if he be defendant, he be served or appear. Rule 47 in equity is to the same purport. It makes it discretionary with the court to proceed, as does section 737. For the foregoing reason, and without deciding expressly or impliedly any other question raised in the case, the only disposition that can now be made of the suit is to dismiss the bill, with costs, but without prej adice to any other suit in any court.
HALL V. MEMPHIS &I UHARLESTON
R. Co.
(Circuit Court, W. D. Tennessee. October 2,1882.) 1. ACTIONS IN TOR'r AND Ex CoNTRACTu-TENN. CoDE, § 2746 lilT SEQ.
The plaintiff, on the facts stated and proven may, in Tennessee, recover whatever damages he may be entitled to, whether his action sounds in tort or e0 contractu, all forms of acti(;m baving been abolished by the Code. 2. CARRIER OF PASSENGERS-LIMITED TICKET-EJECTION-MEASURE OJl'DAMAGES,
A passenger holding a ticket, the limitation of which has expired, cannot insist that the conductor sball take it, in violation of a regulation of tht' company requiring the conductor to demand train fare of persons without tickets, although he may have an understanding or contract with the station agent of whom the ticket W88 purchased that it would be received after the time limited on the face of it ; and on the refusal to pay the fare eject.ion from the train was not wrongful. And the measure of damages in a suit for a breach of the alleged contract'is, in the absence of proof of any special damage by delay" only the price of the extra fare demanded and paid for transportation to the place of destination, S. 8AME-·WRONGFUL EJECTION-J{E8ISTANCE BY PASSENGER.
'Vhile resistance to the authority of a conductor does not preclude a passenger from recovering reasonable damages for a wrongful ejection from the train, it is his duty, certainly where he is in the wrong, to submit without resistance, except in defense against impending bodily injury; and, right or wrong, unnecessary resistance will excuse the use of force and mitigate the damages for any injury received.