Ashton

This appeal was heard in Department Two, which reversed the judgment and order of the court below. An opinion was filed November 22, 1889. Afterward a petition that the cause be heard in Bank was filed and granted, and the case has been argued in Bank, but the argument has failed to convince us that the decision of the Department was erroneous; and for the reasons stated in the opinion of the Department, the judgment and order appealed from are reversed.

*62 The following is the opinion of Department Two, above referred to, rendered on the 22d of November, 1889:—

This was a suit by Charles Ashton, a member of the Dashaway Association, against the corporation, its five trustees and a majority of the other members, to compel the restoration of funds alleged to have been misappropriated. The trial court nonsuited the plaintiff, who appeals from an order denying his motion for a new trial.

The original association was an incorporated temperance society. It was formed in January, 1859, at the Howard engine-house, by seventeen public-spirited men, who took a pledge to abstain from all intoxicating drinks except for medical purposes, the necessity of which was to be certified by a physician, and adopted a constitution and by-laws. The initiation fee was fixed at twenty-five cents, and the dues at twelve and a half cents a week. The preamble was as follows: —

The name adopted was the Dashaway Association,— the meaning of which is said to be that it was the object to encourage the members and their friends to “dash away ” the intoxicating cup from their lips.

*63 In May, 1859, a more extended constitution was adopted. After reciting…