author: Mr. Chief Justice Shope

text:
    George A. Gindele et al. v. John Corrigan.

      Filed at Ottawa October 31, 1889.

    1. Admiralty—attachment or vessels — State and Federal jurisdiction—essentials to jurisdiction—in rem or in personam. Where the admiralty jurisdiction of the United States attaches, it does so to the exclusion of the jurisdiction of the State courts, and a State can not confer jurisdiction upon its courts in such cases.
    2. It is essential to a suit in rem in admiralty, against a vessel, that an actual seizure be made of it, and it be subjected primarily to the satisfaction of the judgment. Without such seizure the court acquires no jurisdiction of the vessel.
    3. The State may, by statute, authorize the attachment of the property of a debtor or tort feasor, as a security for the satisfaction of the judgment to be recovered, and in such case the proceeding is in personam, and not in rem. The object of .the attachment, in such case, is to secure a lien upon the property seized for the payment of the judgment, and not for the condemnation of the property itself.

      4. Where the owner of a vessel procures its release from the attachment hy giving his personal bond, with sureties, the suit will thereafter be a proceeding in personam. The plaintiff may then amend the record so as to make the bondsmen parties defendant. The statute authorizing such proceedings in the State courts is not in conflict with the constitution or laws of the United States.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding.
    The following statement by the Appellate Court is substantially accurate:
    This is a proceeding instituted by John Corrigan, appellee, against the steam canal boat “Nunnemaeher,” pursuant to chapter 12 of the Eevised Statutes of Illinois, commonly known as the “Water-craft act.”
    The cause of action alleged in the petition arose from a collision of the said steam canal boat “Nunnemaeher, ” of above fifty tons burden, owned by the Illinois and Michigan Canal Company, a corporation organized and doing business in the State of Illinois, under and in pursuance of the laws thereof, of which corporation the said George A. Gindele was an officer, and manager of its business, and a shareholder therein, and the canal boat “Midnight,” then belonging to John Corrigan, the appellee, and being of above five tons burden,—the steam canal boat “Nunnemaeher” and the canal boat “Midnight” being, at the time of such collision, domestic vessels and watercraft, and both engaged in commerce wholly within the borders of the State of Illinois, and the home port of both being within this State, and enrolled and licensed pursuant to law.
    In the night time of the 8th of May, 1886, the canal boat “Midnight,” in charge of William Peck as master, being towed by mules, was on its way from the city of Chicago to Peru, in La Salle county, on the waters of the Illinois and Michigan canal, and within said State of Illinois, laden with a cargo of hard coal screenings. Near Lemont, in Will county, in said State of Illinois, she was overtaken en route and run into by the steam canal boat “Nunnemacher,” broken open in keel and side, sunk, and rendered a total loss, without fault on the part of the said canal boat “Midnight,” her officers or crew, and through the negligence and want of care of the officers and persons in charge of the canal boat “Nunnemacher, ” as is alleged in said petition.
    On the 14th day of May, 1886, Corrigan, the appellee, sued out of the circuit court of Will county a writ of attachment, under the provisions of said Water-craft act, against the steam canal boat “Nunnemacher,” alleging in his petition that the owners of the said steam canal boat were unknown. The writ was issued on that day, pursuant to the provisions of said act, and the “Nunnemacher” was seized under the writ by the sheriff of Will county. Five or six days thereafter, John A. Cándele, claiming an interest as part owner in said steam canal boat, bonded and released the boat from such seizure under sections 15 and 17 of said chapter 12 of the Revised Statutes of Illinois, —being the Water-craft act,—his sureties being John Angus and George P. Adams, the appellants, and thereupon a writ of restitution was issued, and returned by said sheriff of Will county executed, pursuant to the 17th section of the aforementioned act, and said steam canal boat was thereupon discharged and released from the lien of the attachment, as provided in-said Attachment act. Some time after such restitution, George A. Gindele, one of the appellants, entered his appearance in said attachment proceedings, filed his answer thereto, claiming to be interested in the steam canal boat as part owner thereof, and as principal in the bond given and filed in said court to obtain the release of said boat from such attachment seizure, therein admitting the collision at the time, place, and with the, results charged in said petition for said attachment, but denying that it was caused by the negligence or want of care or skill on the part of those in charge of the steam canal boat “Nunnemacher,” or that the said canal boat or her owners were liable therefor. This answer was subsequently withdrawn by leave of court, and appellants were allowed to enter a motion to dismiss the proceedings for want of jurisdiction in the trial court, and thereupon, on leave obtained, Corrigan, appellee, amended his petition, which being re-filed, said motion to dismiss for want of jurisdiction was again interposed, which motion being overruled, replication was filed to the answer, and the cause submitted to a jury for trial, who, after hearing the evidence, returned a verdict for the appellee, for $1000. A motion was made for a new trial, and overruled, judgment entered on the verdict, and an appeal was prosecuted by defendants below to the Appellate Court, where the judgment was affirmed, and they prosecute this further appeal.
    Mr. C. E. Kbemeb, and Mr. C. W. Bbown, for the appellants:
    The collision in this case is a maritime tort, and one within the jurisdiction of a court of admiralty. Ex parte Boyer, 109 U. S. 629.
    As to the question of admiralty jurisdiction, and its effect on State statutes, see “The Moses Taylor,” 4 Wall. 411; “The Hine” v. Trevor, 4 id. 555; “The Belfast,” 7 id. 624; “The Lottawana,” 21 id. 558; Williamson v. Hogan, 46 Ill. 504; Tug “Montauk,” 47 id. 335; Langdon v. Wilcox, 107 id. 606.
    Messrs. Duncan, O’Connob & G-ilbebt, and Messrs. Haley & O’Donnell, for the appellee:
    The State court had the jurisdiction to try the case. Johnson v. Elevator Co. 119 U. S. 388; Steamboat “General Buel,” 18 Ohio St. 521; “The Moses Taylor,” 4 Wall. 427; Steamboat “Josephine,” 39 N. Y. 19.
   Mr. Chief Justice Shope

delivered the opinion of the Court:

This was a proceeding by attachment, under chapter 12 of the Revised Statutes of this State, by John Corrigan, against the steam canal boat “Nunnemaeher,” for an injury to the canal boat “Midnight, ” upon the waters of the Illinois and Michigan canal, through the alleged gross negligence of those in charge of the defendant boat.

It is first urged, that the circuit court of Will county had no jurisdiction of the subject matter. It is contended that the collision, if produced by negligence, as alleged, was a maritime tort, and therefore within the exclusive jurisdiction of the courts of admiralty, by virtue of the act of Congress of 1789. Where the admiralty jurisdiction of the United States court attaches, it undoubtedly does so to the exclusion of the jurisdiction of the State court, (Cohen’s Admiralty Law, 1,) and a State can not confer jurisdiction upon its courts in such cases. (Ibid; Stewart v. Potomac Ferry Co. 12 Fed. Rep. 296; “The Hine” v. Trevor, 4 Wall. 555.) It is, however, essential to a suit in rem, in admiralty, against the vessel, that an actual seizure be made of the vessel, and it be subjected primarily to the satisfaction of the judgment. Without such seizure the court acquires no jurisdiction of the vessel. Cohen’s Admiralty Law, 22, 23 ; Brennan v. Steam Tug “Anna P. Darr,” 4 Fed. Rep. 459; Miller v. United States, 11 Wall. 294.

In Loy v. Steamboat “Aubury,” 28 Ill. 412, which was trespass, for assault and battery by the mate upon the plaintiff while a passenger, brought under the act of the legislature of this State of February 16, 1857, this court held that the action would lie,—citing Steamboat “Champion” v. Jansen, 16 Ohio, 91, and Canal Boat “Huron” v. Simmons, 11 id. 458. In Schooner “Norway” v. Jensen, 52 Ill. 373, it was held that the act of 1857, giving a summary remedy in certain cases against steamboats and other water-craft, was not confined in its operation to vessels navigating the rivers within or bordering upon this State, but embraced those employed upon any of the navigable waters of the State, and that a sailor injured on board a vessel through the negligence of the owner, might proceed, under that act, by attachment and seizure of the vessel. The second section of the act authorized suits against the owner or owners or master of the craft, or against the craft itself, and section 4 provided for the seizure of the craft. In Tugboat “E. P. Dorr” v. Waldron, 62 Ill. 221, which was an attachment for supplies, this court held that the proceeding had no resemblance to a libel in a court of admiralty, but was of the same character as an ordinary attachment, requiring notice to be given of the pendency of the suit, and that by it no prior liens were interfered with,—citing Germain v. Steam Tug “Indiana,” 11 Ill. 535.

The action in this case was for a tort, which, in the language of the Appellate Court, may be defined “to be an injury or, wrong committed, with or without force, to the person or property of another, and such injury may arise by either the nonfeasance, malfeasance or misfeasance of the wrongdoer. ” The common law affords a remedy for torts, although they may be committed upon a navigable stream; but in such case the remedy is not exclusively in rem, or such as pertains to a court of admiralty. The common law remedy is by an action in personam,—that is, against the wrongdoer in person,—and not primarily or solely against his property. The State may, by statute, authorize the attachment of the property of the debtor or tort feasor, as a security for the satisfaction of the judgment to be recovered, and in such case the proceeding is in personam and not in rem. The object of the attachment in such case is to secure a lien upon the property seized for the payment of the judgment, and not for the condemnation of the property attached.

In the case of “The Moses Taylor,” 4 Wall. 411, the court say: “The case before us is not within the saving clause of the 9th section of the act of 1789. That clause saves only to suitors ‘the right of a common law remedy where the common law is competent to give it.’ It is not a remedy in the common law courts which is saved, but a common law remedy. A proceeding in rem, as used in' the admiralty court, is not a remedy afforded by the common law. It is a proceeding under the civil law. Where used in the common law courts, it is given by the statute.”

In “The Hine” v. Trevor, 4 Wall. 555, the same court say: “If the facts of the case before us, in this case, constitute a case of admiralty cognizance, then the remedy, by a direct proceeding against the vessel, belonged to the Federal .courts, alone, and was excluded from the State tribunals. * * * It is said that the statute of Iowa may be fairly construed as. coming within the clause of the 9th section of the act of 1789, which saves to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it. But the remedy pursued in the Iowa courts, in the case before us, is in no sense a common law remedy. It is a remedy partaking of all essential features of an admiralty proceeding in rein. * * * While the proceeding differs thus from the common law remedy, it is also essentially different from what are in the West called ‘suits by attachment,’ and in some of the older States ‘foreign attachments.’ In these cases there is a suit against the person of defendant by name, and because of inability to serve process on him, on account of non-residence, or for some other reason mentioned in the various statutes allowing attachments to issue, the suit is commenced by a writ directing the proper officer to attach sufficient property of the defendant to answer any judgment which may he rendered against him. This proceeding may be had against an owner or part owner of a vessel, and his interest thus subjected to sale in a common law court of the State. Such action may be also maintained in the common law courts by such remedy as the common law gives.” See, also, “The Belfast,” 7 Wall. 624, and “The Lottawana," 21 id. 558.

In Johnson v. Chicago and Pacific Elevator Co. 119 U. S. 388, that court again says: “Liens under State statutes, in suits in personam, are of every day occurrence, and may extend to the lien on vessels, where the proceedings to enforce them do not amount to admiralty proceedings in rem, or otherwise confliet with the constitution of the United States. There is no more valid objection to the attachment proceedings to enforce the lien in a suit in personam, by holding the vessel by mense process to be subjected to execution on the personal judgment when recovered, than there is in subjecting her to seizure on the execution. Both are incidents of a common law remedy, which a court of common law is competent to give.”

Such has been the uniform construction placed upon the act of Congress referred to. In the case at bar, after the seizure of the boat, the personal bond of appellants, as part owners and sureties, was substituted, and the vessel was thereby released and discharged from the seizure, and thereafter the case proceeded to final judgment as a proceeding in personam. The suit was originally entitled John Corrigan v. The Propeller “Nunnemacher,” and the unknown owner or owners of said propeller “Nunnemacher.” After the trial, the plaintiff, by leave of the court, amended the title of the ease so as to make the bondsmen, George A. Gindele, George T. Adams and John Andrus, the defendants, and thereupon judgment was rendered in personam against said bondsmen, as it is provided shall be done by the 21st section of chapter 12 of the Revised Statutes of this State, known as the “Water-craft act. ”

In Langdon v. Wilcox, 101 Ill. 606, this court said: “A proceeding under the Water-craft act is essentially, in many of its features, like a proceeding in rem in admiralty, though differing from the latter, it is believed, sufficiently to avoid any conflict with the constitution of the United States, which gives • to the Federal court exclusive jurisdiction in admiralty.” By the 15th section of said act, where the vessel has been seized under the attachment provided for in the act, the owner, or other person interested, may release the same, and have a return of the property attached, upon entering into bond, “conditioned that the obligors will pay all money adjudged to be due such (the) claimants, with costs of suit.” Section 21 of the act provides, that when the vessel is seized on mesne process, and is released upon bond given by the owner or the persons interested therein, and filed in the court in which the proceeding is pending, the bond shall stand in the place of the vessel, and judgment or decree shall be rendered against the principal and sureties of the bond, providing that in no ease shall the judgment exceed the penalty of the bond, and expressly providing, that “the subsequent proceedings, after the bond is filed, shall be the same as now provided by law in personal actions in the courts of record in this State.” It is manifest that appellants have voluntarily submitted themselves to the jurisdiction of the State court; and it is clear, that after-having done so, by filing the bond provided by the statute fertile release of the vessel, the proceeding was no longer in rem, but necessarily in personam, and no other than a personal judgment could have been rendered. This being so, the proceedings here have no similitude to an admiralty proceeding in rem, and we are of opinion that the circuit court had jurisdiction to render the judgment, and also that the motion to-dismiss the suit, entered after the filing of such bond, was. properly overruled.

The point is also made that there was no proof that the-plaintiff was the owner of the canal boat injured by the collision. This is a question of fact, which is settled by the verdict of the jury and judgment of the Appellate Court, and can not. be considered here.

Finding no error in the record, the judgment of the Appellate Court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam :

license: Public Domain

text:
    The People ex rel. Frank J. Woodruff v. Canute R. Matson, Sheriff.

      Filed at Ottawa October 31, 1889.

    1. Cbiminal law—delay in trial—right to discharge. Section 498 of the Criminal Code, providing for the discharge of prisoners confined after delay of two or more terms, when the delay is not attributable to the prisoners’ act, being intended to give effect to the clear constitutional right to a speedy trial, should receive a liberal construction.
    2. A person was indicted, with several others, upon the charge of murder, at the May term of the Criminal Court of Cook county, and was arrested May 29. At the next term—the June term of the same year—the cause was continued by the prosecution. At the July term the cause was continued by consent. At the August term the defendant specially referred to, on Ms own application, procured an order granting him a separate trial. He demanded a trial at the August term, but the cause was continued to the September term, and again to the October term. On petition for habeas corpus by the same defendant, for a discharge under the statute, it appeared that the trial of the other defendants was at that time pending, so that his trial could not be had until that of his co-defendants was concluded : Held, that the defendant at whose instance the order for a separate trial was granted, was not entitled to a discharge on account of the delay in his trial, as such delay, to an extent that would preclude him from availing of the statute, was occasioned by himself.
    3'. Cbiminal Coubt op Cook county—branches thereof treated as separate courts. Each branch of the Criminal Court of Cook county, so far as its jurisdiction to try a particular case is concerned, and to hear and to determine causes in which it is engaged, must be regarded as an independent court, separate and distinct from other branches of the court, as if it was in a separate jurisdiction.
    This was a petition filed in this court, asking the issue of a writ of habeas corpus to the sheriff, etc. The facts sufficiently appear in the opinion of the court.
    Mr. Seth F. Chews, and Mr. H. E. Pobteb, for the petitioner.
   Per Curiam :

The petitioner, Frank J. Woodruff, alias Frank J. Black, petitions this court for a writ of habeas corpus, and to be discharged from imprisonment, to which he alleges he is unlawfully subjected by the sheriff of Cook county.

The petition alleges that an indictment was returned against the petitioner, with others, at the May term, 1889, of the Criminal Court of Cook county, for the crime of murder; that he was arrested on the 29th day of May, 1889, and that he is now, and ever since his arrest has been, continuously confined in the jail of said county under a capias issued upon said indictment. It is further alleged that at the June term of said Criminal Court, 1889, being the first term of said court after his indictment and arrest, the cause was continued on motion of the state’s attorney, to the July term succeeding of said court, and to which the petitioner in nowise consented. And further, .that at the July term, 1889, of said court, the cause was again continued to the August term, by the consent and agreement of the petitioner. It is then shown that at said August term, 1889, of said Criminal Court, the petitioner applied for a separate trial from his co-defendants, and upon his application, such proceedings were had that a severance was ordered, and the petitioner awarded a separate trial upon said indictment.

At said term, and upon such separate trial being granted, the petitioner alleges that he demanded an immediate trial of said indictment, but, the court, at the instance of the state’s attorney, and without any cause being shown therefor, and against the wishes and without the consent of the petitioner, continued said cause of petitioner to the September term, 1889, of said court, and at said September term, the cause was, by procurement of the People again continued. It is alleged that none of said continuances were granted upon the application of the petitioner; nor had he done anything at any of said terms of said court, to work delay in the trial of said indictment, except the agreement to continue the cause

at the July term, and that at both the August and September, terms of said court he demanded an immediate trial, or release from custody, which was denied him.

The petition alleges, “that his (petitioner’s) co-defendants on said charge of murder, were placed on trial in one of the branches of the criminal court at the August term, 1889, of said court, and that said trial has been in progress from that time up to, and is in progress now,” that is, at the time of filing the petition for a habeas corpus. It is also alleged that there are three branches of the Criminal Court of Cook county in session; that they were so in session during the months of August and September, 1889, and two of such branches of said court have been in session ever since the finding of said indictment. It is also stated that there are connected with the office of state’s attorney of said county, the state’s attorney and four assistant state’s attorneys. It is alleged therefore, “that the machinery of said court has been ample and adequate to grant petitioner his constitutional right of a speedy trial.” The petition also contains proper allegations, that the petitioner is not detained for any of the causes specified in section twenty-one of the Habeas Corpus Act.

Do the facts alleged in this petition, if admitted to be true to their fullest extent, entitle the defendant to be discharged from custody ? If they do not, it is" apparent that no case is made for issuing the writ, and that its issue would be of no avail. The application is based upon the supposed right of the petitioner to be set at liberty in pursuance of paragraph 498 of the Criminal Code (Starr & Curtis), which provides: “Any person committed for a criminal or supposed criminal matter, and not admitted to bail, and not tried at or before the second term of the court having jurisdiction of the offense, shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner. If such court, at the second term, shall be satisfied that due exertion has been made to procure the evidence for and on behalf of the People, and that there are reasonable grounds to believe that such evidence. may be procured at the third term, it shall have power to continue such case till the third term.” The residue of the section, relates to cases where the defendant has been admitted to bail, and has no application here. Gallagher v. The People, 88 Ill. 335.

There can be no question, upon the case made by the petition, that the defendant is entitled to be set at liberty, unless the delay in his trial upon said indictment “has happened on the application of the prisoner,” there being nothing shown that would authorize the continuance at the second term, as it is contemplated may be done at the instance of the People by the latter clause of the statute above quoted. The statute is in conservation of the liberty of the citizen, and is intended, as said by 'counsel, to give effect to the clear constitutional right to a speedy trial, and it is therefore to be construed liberally. It nevertheless remains to be considered whether the delay in the trial of the defendant has happened because of any act of the petitioner, or because of any application made by him.

It is shown by the petition, and conceded by counsel, that the first term at which the defendants could have been put upon trial, was the June term, 1889. Counting that term,— and the propriety of counting it may well be questioned, in view of the subsequent continuance by the agreement of the defendants—the second term at which the defendant could demand trial was the August term of the Criminal Court. It is conceded that the continuance at the July term was by the consent and agreement of the petitioner, and it can not be said that the same was not upon his application. It is apparent, that an agreement of the parties to continue a cause, is in effect an application to the court by each of the parties for a continuance.

It is shown that the defendant was indicted with others for the crime of murder. At the August term of said Criminal Court, the defendants in such indictment were unquestionably entitled to a trial, if such term is to he regarded as the second term after indictment at which the defendants could demand a trial. Upon application of petitioner he was at that term, for good and sufficient cause shown to the court, granted a separate trial, and thereupon his co-defendants were placed upon trial under said indictment, and ever since that time such trial has been and is still in progress. It became impossible, by reason of the severance procured by petitioner, that all of the persons indicted could be placed upon trial at the same time. It is impossible in the very nature and constitution of the courts, that two causes should proceed to trial at the same time in the same court. The co-defendants of the petitioner clearly had the right to a trial of the indictment against them. Indeed, they not having by any application created the necessity for any postponement or delay, might well demand that their cause proceed to trial in advance of that of their co-defendant, who had necessitated delay, either of their cause or of his own. It is apparent that if the petitioner may create the necessity for delay by his application to the court for a severance, and then demand trial by the court in which the cause is pending, and thereby delay the trial of the cause of his co-defendants, who have made no application, until the close of the second term, such co-defendants must necessarily be discharged under this statute, and it follows that in every such case there would be an absolute failure of justice. We do not think this statute is susceptible of a construction which necessitates such results.

The cause is to be tried at the second term unless the delay shall happen on the application of the prisoner, and a fail-construction of the statute is, that where the delay is occasioned by the application of the defendant, the statute does not compel a trial at the second term, or require that the defendant be set at liberty, in case of the failure to put him upon trial thereat or until the necessity for delay occasioned upon his application has ceased to exist.

But it is urged that there are three branches of the Criminal Court of Cook county in session, and that therefore the delay has not been the result of the inability of the court to try this defendant. It is also said that there are connected with the office of the public prosecutor, the state’s attorney and four assistants. The court in which the cause is pending is the Criminal Court of Cook county, and the trial is proceeding in that court against the co-defendants of the petitioner. Each branch of .said court, so far as its jurisdiction to try a particular cause is concerned, and to hear and determine causes in which it is engaged, must be regarded as an independent court, separate and distinct from other branches of the court, as if it was in a separate jurisdiction. It follows that, unless, in cases where a separate trial is awarded, there is some provision of law by which a part of the cause may be transferred to another branch of said court, it must be tried in the branch of the court which has jurisdiction of the cause and where the indictment is pending. The trial of petitioner’s co-defendants being in progress in one branch of the court, it is manifest, that the indictment returned against all of the defendants must remain in that branch for the purposes of that trial. The State; as well as each of the defendants on trial, has a right to demand that the original indictment shall be present in court; and indeed the trial could not proceed in that court in the absence of the indictment. The indictment must be present in court as forming the basis of the issue while the trial is in progress, and the jury are entitled to take it with them and have it in their custody when they retire to consider of their verdict. Our attention has not been called to, nor are we aware of any statute authorizing the trial of the defendant upon a copy of an indictment, except in case of the loss or destruction of the original indictment, where the same ha,s been recorded under the order of court, as is provided may be done by paragraph 473 of the Criminal Code, (S. & C.) or in cases where the venue is changed as to a part of the defendants. Clearly none of those statutes apply here. If the petitioner were put upon trial in another branch of the Criminal Court, it must be upon the indictment returned by the grand jury, which, as we have seen, must, with the record, remain in the court where his co-defendants are upon trial. If both causes may proceed at the same time, in which shall the record and the indictment remain? Which jury will be entitled, upon their retirement, to take the original indictment, and which of the defendants shall be required to be tried upon the copy of the indictment ? It is true that the various branches of said court, constitute, in a certain sense, but one court, but as said before, the proceedings in said branches must, in the nature of things, be separate and independent, so far as the trial of causes is concerned.

Moreover, if it was possible to put the defendant upon trial, pending the trial of his co-defendants, upon the same indictment, before another judge and jury, such practice would inevitably lead to confusion and possibly a conflict of jurisdiction. Presumably the witnesses to establish the guilt of persons jointly indicted would largely be the same. Would the fact that they were in attendance upon one court be sufficient to excuse them from appearing in the other? Which court would have precedence, and which should delay its proceedings to await the convenience of the other ?

Again, the state’s attorneys of the various counties of the State are charged by law with the prosecution of all indictments, and must have the right to be present and control and conduct the trial of the same. It is evident that he would be incapable of discharging this duty if defendants under the same indictment were put upon trial in different courts at the same time. It can not be of importance that local authorities may provide him assistance, since, after all, the official responsibility of conducting criminal trials is upon him.

It may be urged that the two considerations last mentioned are matters of -convenience only to the administration of the Criminal Law. But if this is so, there lays at the foundation the insuperable obstacle to the trial of the defendant Woodruff, pending the trial of his co-defendants, that he and they alike must be tried upon the indictment returned by the grand j ury, and in due form of law.

By the statute, (Par. 494), the court is authorized to prolong the session of court in which a trial of a criminal case is pending until the verdict is rendered and judgment therein is entered, even though the term at which the trial was com-’ menced may have expired by law. But in respect of causes on the docket, the trial of which has not been entered upon at the legal expiration of the term, they are by operation of law continued to the next term in course. Here, the court having begun the trial of the other defendants to the indictment, may continue such trial until its final termination, but the defendant having created a necessity, upon his own motion, for the postponement of his trial, the cause, as to him, would be continued by operation of law from term to term, until the delay thus created shall cease to exist. It can make no difference that the court may, at each term, at the suggestion of the state’s attorney, have marked the cause continued, so long as the legal impediment to the trial of petitioner, of his own creation, exists.

It follows, that the defendant having created the necessity for the delay, as he might, for good cause do, is not entitled to be discharged from custody by reason of any of the causes set forth in his petition. The issuance of a writ of habeas corpus would, for the reasons above set forth, be of no avail, and it will therefore be denied.

Writ denied.


author: Mr. Justice Baker

text:
    The Germania Fire Insurance Company v. Emil Klewer.

      Filed at Ottawa October 31, 1889.

    1. Insurance—condition as to other insurance—what essential to the condition. There can be no existing insurance on property, within the meaning of a clause in a contract of insurance that such insurance shall render the policy void, unless such other insurance is valid and in full force, and capable of being legally enforced in case of loss.
    2. If one takes a policy of insurance containing a provision that it shall be void in case of other insurance on the same property without consent indorsed upon the policy, and at the same time the assured has another policy on the property, not assented to by indorsement on the later policy, this will render the last policy inoperative so long as the prior policy is in force; but the later policy will attach and become operative on the expiration of the prior policy.
    3. Same—premises left vacant and unoccupied—waiver of condition— evidence on the question of waiver. A provision in a policy of insurance against fire, that it shall become void in case the premises shall be left vacant or unoccupied, does not render the policy absolutely void upon the happening of such event. Such provision is made for the benefit of the insurer, and if he does not elect to avail of the breach of the condition, but waives the forfeiture, neither the assured nor third parties can treat the insurance as void.
    4. Where an insurance company seeks to avoid its liability for a loss on the ground that the assured has another valid existing insurance upon the same property, not assented to by the defendant company, and the assured contends that such other policy has been forfeited by reason of allowing the premises to remain vacant and unoccupied, which vacancy is shown, the burden of proof will devolve upon the defendant company to show, if such is claimed to be the fact, that the other company had waived the right to avoid its policy. But very slight evidence of this fact will be sufficient.
    5. In such case, a letter of the assured to the defendant company, written shortly after the loss, that he had entered his claim against the other company for the total loss of his house, in accordance with the request of the latter company, is proper evidence to go to the jury as tending to prove such waiver.
    6. Where the agent of an insurance company, at the time he issues the policy, knows of the existent vacancy of the property, and makes no objection on that account, and receives the premium from the assured, it will be a waiver of the condition in respect to such existing vacancy.
    7. Instructions—construed—as not submitting question of fact to the jury. In a suit upon a policy of insurance containing a provision that it should be void if there was any other existing insurance on the property not assented to by the defendant company, a prior policy in a different company was shown, which provided that the same should become void in case of other insurance, or the vacancy of the premises for ten days, without written consent indorsed thereon. The court, for the plaintiff, instructed to the effect, that if the premises were vacant for more than ten days prior to the date of the policy sued on, without the consent of the other company, then the policy first issued became and was thenceforth void, and the same no longer constituted insurance on the building. There was evidence tending to show that the company first insuring had waived the right to avoid its policy: Held, that the instructions were erroneous. They should have been so qualified as to submit the question of waiver to the jury.
    8. Same—assuming for whom one was agent. In a suit upon a policy of insurance, when it is a controverted fact whether the person who procured the policy was acting as the agent of the insurance company or of the assured, it is error for the court, in an instruction, to assume that such person, in procuring the policy, was acting as the agent for the assured, instead of submitting that question to the jury.
    9. Evidence—degree of evidence required—where a criminal charge is involved in a civil suit. Where, in a civil suit, a criminal offense is charged in the pleadings, such offense must be proved beyond a reasonable doubt. As to other issues presented by the pleadings, only a preponderance of evidence is required to establish the same.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. John P. Altgeld, Judge, presiding.
    Messrs. Rubens & Mott, for the appellant:
    The second policy is void in case of two policies, each conditioned against other insurance without notice, and no notice having been given to either company. Jackson v. Insurance Co. 23 Pick. 418; Landers v. Insurance Co. 86 N. Y. 414; Hubbard y. Insurance Co. 33 Iowa, 326 ; Mitchell v. Insurance Co. 51 Pa. St. 402; Insurance Co. v. Nichol, 35 N. J. Eq. 291.

      The policy issued by the Hartford Insurance Company on May 19, 1883, was therefore invalid during the existence of the prior policy in the Agricultural Company, but the latter remained valid. But on the expiration of the Agricultural policy, on August 20, 1885, the Hartford policy attached. Insurance Co. v. Schettler, 38 Ill. 166; Obermeyer v. Insurance Co. 43 Mo. 573; Insurance Co. v. Hulman, 92 Ill. 145.
    A condition in a policy against vacancy is for the benefit of the insurer, and may be waived. Bigler v. Insurance Co. 22 N. Y. 402; Gans v. Insurance Co. 43 Wis. 108; Webster v. Insurance Co. 36 id. 67; Insurance Co. v. Garland, 108 Ill. 220.
    The increased risk caused by suffering the house to become vacant, was contrary to the condition of the policy, and defeats a recovery. Insurance Co. v. Padfield, 78 Ill. 167; Insurance Co. v. Tucker, 92 id. 64; Insurance Co. v. Foster, 92 id. 334.
    When the title passes, and the policy is assigned to the vendee with the consent of the insurer, the policy is treated as a new contract with the vendee. 1 Wood on Fire Insurance, sec. 110; May on Insurance, sec. 381.
    Upon the termination of the increased risk the policy again attaches. Insurance Co. v. Garland, 108 Ill. 220; LaSalle v. Insurance Co. 43 N. J. L. 468.
    Loehde was not the agent of the company, so as to charge it with notice. Duluth Nat. Bank v. Insurance Co. 85 Tenn. 76; Insurance Co. v. Reynolds, 36 Mich. 502; Insurance Co. v. Rubin, 79 Ill. 402.
    Some of the text-writers, and several of the earlier reported cases, approve the doctrine, that where a criminal action is charged, even in a civil action, other than slander or libel, the charge must be established beyond a reasonable doubt. See 2 Greenleaf on Evidence, sec. 408; Taylor on Evidence, 97; Bishop on Marriage and Divorce, se.c. 644; Thurtell v. Beaumont, 8 E. C. L. 538; Barton v. Thompson, 46 Iowa, 30; Insurance Co. v. Paver, 16 Ohio, 324; McConnel v. Insurance Co.
      18 Ill. 229; Thayer v. Boyle, 30 Me. 475; Kane v. Insurance Co. 88 N. J. L. 441.
    The more recent authorities are adverse to this view, holding that a preponderance of the evidence is all that is required. Welch v. Jugenheimer, 56 Iowa, 11; Jones v. Greaves, 16 Ohio St. 2; Lyon v. Fleahmann, 31 id. 151; Blaeser v. Insurance Co. 37 Wis. 31; Marshall v. Insurance Co. 43 Mo. 586; Rothschild v. Insurance Co. 52 id. 356; Schmidt v. Insurance Co. 1 Gray, 529; Bissell v. Wort, 35 Ind. 54; Scott v. Insurance Co. 1 Dillon, 106; Cooley on Torts, 208; May on Insurance, sec. 583; Barton v. Thompson, 56 Iowa, 571; Gebhart v. Burkett, 57 Ind. 378; Johnson v. Insurance Co. 25 Hun, 251; Hutchberger v. Insurance Co. 4 Biss. 265; Insurance Co. v. Johnson, 11 Bush, 587; Sloan v. Gilbert, 12 id. 51; Hoffman v. Insurance Co. 1 La. Ann. 216; Wightman v. Insurance Co. 8 Rob. 442; Insurance Co. v. Wilson, 7 Wis. 169; Gordon v. Parmlee, 15 Gray, 413; Elliott v. Van Buren, 33 Mich. 49; 3 Greenleaf on Evidence, sec. 29; Abbott’s Trial Evidence, 495, note 1; Wharton on Evidence, sec. 1246.
    If this court shall now adopt the views prevailing in all the other States, and sanctioned by the leading authorities, then the instructions in this ease should have been the same as in any other civil proceeding, and it was error to use the terms “clear preponderance,” and “to the satisfaction of the jury,” Ruff v. Jarrett, 94 Ill. 479 ; Buckman v. Dodds, 6 Bradw. 25; Belohradsky v. Carlisle, 14 id. 294.
    Mr. H. W. Dikeman, for the appellee:
    Insurance in the name of the insured, but without authority, effected by another person interested, will not vitiate the policy. Such unauthorized policy does not constitute “other insurance.” Nicholas v. Insurance Co. 1 Allen, 63; Savings Bank v. Insurance Co. 8 Lathrop, 165.
    The policy in the Hartford Fire Insurance Company was void and never in force, by reason of the fact, that before and at the time it is alleged to have been issued, to-wit, May 19, 1883, there was already existing insurance, to-wit, appellee held a policy in the Agricultural Insurance Company, August 20, 1882,—$500 on the house and |500 on the furniture,— expiring August 20, 1885. Such being the case, the Hartford Fire Insurance Company’s policy was void, as it contained the following express condition: “Or if there shall be any other insurance, whether valid or otherwise, on the property insured, or any part thereof, at the time this policy is issued, or at any time during its continuance, without the consent of the company written hereon, or if the risk be increased by any means within the control of the assured, this policy shall be void.” Insurance Co. v. Hulman, 92 Ill. 145; Insurance Co. v. Steiger, 13 Bradw. 482.
    To constitute “existing insurance,” the policy must be a valid policy in full force, and capable of being enforced or collected in case of the destruction of the building. Insurance Co. v. Schettler, 38 Ill. 166.
    William Loehde was the agent for appellant, and there can be no question but that Loehde had full notice that the building was unoccupied. Notice to the agent, Loehde, was notice to his principal, the Germania Fire Insurance Company.
    It is immaterial what statements Loehde, the agent of the Germania Fire Insurance Company, may have made to his principal. Such statements were the acts of appellant’s agent to appellant, and were not binding on appellee. Insurance Co. v. Jackson, 83 Ill. 302; Insurance Co. v. Ward, 90 id. 545; Insurance Co. v. Fish, 71 id. 620; Insurance Co. v. Chestnut, 50 id. 111; Bennett v. Insurance Co. 106 N. Y. 243.
    The appellant issued its policy with full knowledge that the building was vacant, and in so issuing the policy the appellant waived the conditions in the policy. May on Insurance, 497; Havens v. Insurance Co. 111 Ind. 90; Insurance Co. v. Spankneble, 52 Ill. 53.

      Even where an express oral promise is made that a dwelling house shall be occupied, the policy is not avoided by a failure to fulfill the promise, unless fraud is shown. Kimball v. Insurance Co. 9 Allen, 540.
   Mr. Justice Baker

delivered the opinion of the Court:

In this suit on a policy of insurance, Emil Klewer, the appellee, had verdict and judgment in the Superior Court of Cook county, against the appellant herein, the Germania Eire Insurance Company of New York. The judgment was affirmed by the Appellate Court for the First District.

The policy in suit was dated October 16, 1885. Three defenses were interposed: Other insurance, in violation of the conditions of the contract; vacancy of the house insured, in violation of such conditions; and that appellee burned the building. The premises were destroyed by fire on November 15, 1885.

August 20,-1882, appellee procured from the Agricultural Insurance Company a policy of insurance for three years, insuring him against loss or damage by fire, to the extent of $500 on his house at Norwood Park, Illinois, and $500 on his furniture therein, such policy containing a clause prohibiting other insurance. Dunlap & Swift had, prior to that time, sold the house and lot to appellee, and received from him a mortgage thereon to secure a part of the purchase money; and on May 19, 1883, they obtained from the Hartford Eire Insurance Company a policy for $1000 on the house, insuring appellee for three years against loss or damage by fire, a clause in said policy declaring the same void in case of other insurance, or the vacancy of the house for ten days without written consent indorsed on the policy. This policy was delivered to Dunlap & Swift, and appellee paid to them the premium thereon. The policy in the Agricultural Insurance Company expired on the 20th of August, 1885, and about that date, and on or before the 22d day of that month, said company delivered to appellee a second policy issued by it, and similar, except as to dates, to that bearing date August 20,1882, but did not collect the premium thereon. While this new policy was still lying on the desk of appellee, one Loehde, an insurance broker, called to either deliver or collect a bill, and saw it lying there, and, at his request, appellee authorized him to return the policy to the Agricultural Insurance Company, and place the insurance in one or another of the several companies for which he, Loehde, solicited business, and said policy was returned by Loehde to the company that had issued it, and it was cancelled. On August 22, 1885, the appellant corporation issued its policy insuring appellee against loss or damage by fire, to the extent of $500 on said house and $500 on the furniture, said policy providing therein that it should be void in case of the existence or subsequent procurement of other insurance of the property thereby insured, or in case of vacancy. From August 20, 1882, until the latter part of September, 1885, the house was occupied by appellee as a dwelling, but he vacated the same some time in September, with no intent of returning, and it remained vacant from that time until destroyed by fire. On October, 16, 1885, appellee procured, through Loehde, the cancellation of the policy dated August 22, 1885, and the appellant, at the same time, issued to appellee a policy for $1000 on the house alone, for a term commencing October 16, 1885, and ending August 22,1888, said policy containing the same clauses in regard to other insurance and vacancy that were contained in the policy that was at that time cancelled. No consent in writing was given by any of the companies, by indorsement on any of the policies, to other insurance, or to vacancy of the house.

First—The substance of the third plea of appellant was, that the policy sued on provided that the contract of insurance should be avoided in case of the existence of other insurance on the property insured by said policy, unless specially agreed to in writing in or upon said policy; that at the time of its issuance, and at the time of the fire, there existed upon said property other insurance, to-wit, a policy issued by the Hartford Fire Insurance Company, insuring appellee, etc., and that such other insurance was not specially agreed to in writing in or iipon the policy in suit. The replication to this plea was, that there did not exist, at the time of the issuance of the policy sued upon, nor at the time of the destruction by fire of the property thereby insured, any other insurance upon the insurable interest of appellee in said property destroyed by fire. There can be no existing insurance without such insurance is valid and in full force, and capable of being legally enforced or collected in ease of the destruction of the property insured. (New England Fire and Marine Ins. Co. v. Schettler, 38 Ill. 166.) .It is plain the Hartford policy was inoperative when it was. issued, on May 19, 1883, for the reason it contained a provision it should he void in case of other insurance upon the same property without written consent indorsed upon the policy, and, there being no such consent, appellee at that time already held a policy insuring his house, of the Agricultural Insurance Company; dated August 20, 1882, and running three years: When, however, said last mentioned policy expired, on the 20th of August, 1885, then the Hartford policy immediately attached, and became operative and existing insurance.

At the trial, one of the claims of appellant was, that said Hartford policy continued in force until after the policy in suit, was issued, and after the fire, while appellee contended that as the Hartford policy contained a clause the same would be void in case of the vacancy of the house for ten days without, written consent indorsed on the policy, and as he removed from the house in September, 1885, and it continued vacant and unoccupied when appellant issued its policy and when the fire occurred, and as there was no consent by the Hartford company to such vacancy, said policy had ceased to be existing insurance, and the liability of appellant, under the policy in suit, attached on October 16,1885, and continued until the house was burned, on the 15th of November following. Appellee also insisted, at the trial, the policy of the Hartford company was made void and inoperative by the policy of the Agricultural Insurance Company, issued in 1885, and by the two subsequent policies issued by appellant.

A provision in a policy it shall become void in case the premises are left vacant or unoccupied, does not render such policy absolutely void upon the happening of such event. Such provision is made for the benefit of the insurer, and if he does not elect to avoid it, but waives the forfeiture, neither the insured nor third parties can treat the insurance as void. Insurance Co. v. Garland, 108 Ill. 220; Mitchell v. Lycoming Mutual Ins. Co. 51 Pa. St. 402; Bigler v. N. C. C. Ins. Co. 22 N. Y. 402; Landers v. Watertown Fire Ins. Co. 86 id. 414; David v. Hartford Ins. Co. 13 Iowa, 69; Carpenter v. P. W. Ins. Co. 16 Pet. 495.

The court, at the instance of appellee, gave several instructions, to the effect that if the house was vacant for more than ten days prior to the 15th day of October, 1885, without the consent of the Hartford Fire Insurance Company, then the policy issued by said company became and was thenceforth invalid and void, and the same no longer constituted insurance on the building destroyed. The impropriety of these instructions is manifest when it is considered that it was in evidence that in the proofs of loss furnished by appellee to appellant he swore he had $1000 other insurance in the Hartford company, and also that he made and forwarded to the latter company proofs of loss based on this policy issued by it; and further, that there was no evidence the Hartford company had ever claimed its policy was avoided, or had refused to pay the loss. The mere fact of vacancy did not render its policy void, but only voidable, and it was optional with the insurer whether it would avail itself of that ground for avoiding the contract, or would waive the breach of the condition in its policy. Assuming the burden of proof was upon appellant, on the ground it alleged in its plea there was other insurance on the property, to show the Hartford company had waived the condition, yet the truth in regard to that matter would be peculiarly within the knowledge of appellee, and the means of proving it especially within his power and control, and so slight testimony would be sufficient to establish on its part, prima facie, such waiver. The facts above mentioned, in connection with the statement in appellee’s letter of the date of December 8, 1885, that he entered his claim against the Hartford company for the total loss of his house, in accordance with the request of said company, was evidence to go to the jury as proving, or tending to prove, such waiver. We think said instructions should have been so qualified as to submit the question of waiver to the jury, and that it was error to give them without such modification.

The substance of instruction No. 6, given for appellee, was, that if appellee, subsequent to May 19, 1885, and prior to October 16 of that year, procured insurance on the property in the Agricultural Insurance Company, then the jury must find the Hartford policy was not existing insurance at the time appellant issued its policy. This was very clearly erroneous. In the first place, the second policy in the Agricultural Insurance Company appears not to have been issued until after the expiration of the first policy of said company, and as the liability under the Hartford policy had in the meantime become operative, and as said second Agricultural Insurance Company policy contained a provision against other insurance, and was therefore void itself by its own terms, consequently it could not affect the validity of the Hartford policy, which was prior. And even if this were not so, and if said second policy was at one time valid and subsisting insurance, yet it is the uncontradicted testimony that it was returned to the Agricultural Insurance Company, and cancelled on or before the 22d of August, 1885, and at least then, if not before, the Hartford policy became existing insurance. 1

The seventh instruction for appellee was equally erroneous and misleading. The substance of it was, that if appellee, subsequent to May 19, 1885, took out other insurance on the property without the consent of the Hartford company, then the Hartford policy became thenceforth invalid and void, and no longer constituted insurance on the building. The. only evidence there was upon which to base the instruction, was that in regard to the second policy of the Agricultural Insurance Company, and that in regard to the policies of August 22 and October 16, 1885, issued by appellant. The Agricultural Insurance Company’s policy was, as we have seen, not only void, but was cancelled; and the two policies procured from appellant contained clauses against prior insurance, which rendered them invalid if the Hartford policy was in force. If the latter policy was existing insurance, it could not be invalidated by that which was void and was no insurance.

Second—Several of the pleas of appellant were predicated upon a clause in its policy, to the effect the contract of insurance would be avoided by increase of hazard, by vacancy or non-occupancy, unless specially agreed to in writing in or upon the policy. This court has decided, either expressly or in legal principle, in a number of cases, that where the agent of an insurance company, at the time he issues the policy, knows of the existent vacancy, and makes no objection on that account, and recéives the premium from the assured, it will be a waiver of the condition in respect to such existing vacancy. Commercial Ins. Co. v. Spankneble, 52 Ill. 60; Lycoming Ins. Co. v. Barringer, 73 id. 230; New England Fire and Marine Ins. Co. v. Schettler, 38 id. 166; Ætna Ins. Co. v. Maguire, 51 id. 342; Reaper City Ins. Co. v. Jones, 62 id. 458.

Upon this branch of its defense, appellant relies on the case of Insurance Co. of North America v. Garland, 108 Ill. 220. There, the policy was not, in the first instance, issued to Mrs. Garland, and the premium collected from her, but it was so issued to and the premium paid by one Maria G. McConnell, who afterward made an assignment of it to Mrs. Garland, and the consent of the insurance company indorsed thereon. This was in effect re-issuing the policy to another person upon the same terms and conditions it had been issued before, and the unearned premium was a good consideration for the new promise made by the company to the assignee. The substitution of Mrs. Garland for Mrs. McConnell was simply to place the former in the same position with respect to all rights and liabilities, under the policy, the assured herself occupied before the transfer. The undisputed fact in that case was, that on the day the transfer was made and consent of the company given, the agent of Mrs. Garland informed the insurance agent the house was vacant, and the latter told him, in express terms, that he had “better attend to that part of the business, because it would not amount to anything if the house was destroyed,— they would not be liable for any loss,”—and it was held, that “under such circumstances” the consent to the transfer was not “a waiver of the condition altogether,” and the company would have a clear right to insist upon performance of the condition, and until that was done, its liability, under the policy, would not attach. In other words, the condition of the policy, under the peculiar circumstances of that case, was regarded as a condition precedent, and conformity to its requirement held necessary before the liability of the company would commence.

In the present case the testimony of appellee was: “I told Mr. Loehde I had moved out of the house, and he said it was all right,—that he would attend to it, and have the $500 furniture re-written on the house; and he asked me whether I was going to have it rented. I told him, Yes, sir, I was. He said that would be all right. He asked me whether I was going to rent it. I told him, Yes, sir, I was.” Loehde, when examined in chief, testified that appellee told him “he did not live in the house now—other people were living in it;” but when called in rebuttal, he testified: “I asked him if it would be occupied, and he said, ‘Yes, sir.’ He said he had it rented. He did not state there was somebody occupying the house, but he said he would have it rented. I asked him if the house was occupied, and he said, ‘Yes, sir, I will have it rented.’ ” This makes the case quite different from the Garland case, where the assured was informed, in positive terms, that if the house was destroyed the policy would not amount to anything, and the company would not be liable for any loss. Here, upon the assumption the jury believed that appellee gave a substantially correct statement of the transaction, they might find it to be a fair presumption, from the conduct and language of the parties, that the intention was that the liability of the company, under the policy, should attach at once, and continue, unless appellee allowed the house to remain vacant an unreasonable length of time. If there was a waiver of the condition of the policy against vacancy, and it was merely of this temporary character, and if the loss occurred after the expiration of a reasonable time for procuring an occupant, then there is no liability on the part of appellant, and. whether there was such waiver, and whether such reasonable time had passed prior to the loss, are questions of fact for the jury.

It was also a matter of controverted fact, upon this same branch of the case, whether Loehde, in procuring the insurance, was acting as° the agent of appellant or of appellee. The modifications made by the court to the first, second and fourth instructions asked by appellant, improperly and erroneously assumed he was the agent of the latter, instead of submitting that question to the jury. It is no part of our duty to weigh the evidence bearing upon that issue of fact, but we may suggest that appellant is wrong in his assumption that the circumstances that appellee paid Loehde nothing for his services, that the latter received his pay therefor from the insurance company, and that the company paid him a commission on all the business he transacted for it, are absolutely immaterial, and that it was so decided by this court in Lycoming Fire Ins. Co. v. Rubin, 79 Ill. 402. All that was there decided was, that under the circumstances of that case, one Ludlum, a broker, was the agent of Eubin, and not of the company, and that the fact that the agent of the company allowed Ludlum a commission did not change the character in which he acted,—in other words, was not, of itself, a conclusive circumstance to show he was the agent of the company.

Third—Appellant not only interposed the defenses its policy was void because there was other insurance on the property, and because the house was vacant and unoccupied, but made the further defense that appellee himself set fire to the building. Where, in a civil action, a criminal act is charged, the authorities are in conflict upon the question whether thé rule applicable to a criminal prosecution or that applicable to a civil suit should prevail in respect to the degree of proof required. In this State it has been held, that where, in civil cases, a criminal offense is charged in the pleadings, such offense must be proved beyond a reasonable doubt. (Crandall v. Dawson, 1 Gilm. 556; McConnel v. Mutual Ins. Co. 18 Ill. 228; Harbison v. Shook, 41 id. 141; Sprague v. Dodge, 48 id. 142.) Instruction No. 8 for appellee was, however, inaccurate, in that it required more than a mere preponderance of the evidence in order to establish the defenses of other insurance and vacancy.

For the errors mentioned herein, the judgment is reversed, and the cause remanded to the Superior Court of Cook county for another trial.

Judgment reversed.


text:
    Joseph Gregg v. George M. Hord.

      Filed at Ottawa October 31, 1889.

    1. Partnership—books of account of the firm—as showing the course of dealings, and the state of the accovmt between the partners. Although partners enter into a written agreement, stating the terms on which the business is to be conducted, yet if there be a long course of dealing, or a course of dealing not long, but still so long as to demonstrate that they have all agreed to change the terms of the original written agreement, they may be held to have changed these terms by their conduct. Such course of dealing may be shown by the partnership books.
    2. Where a partner knows of charges against the firm upon the books of the firm, and makes no objection or complaint against them as being improper, and repeated balances have been struck from such books, of the partnership accounts, the master, in stating the partnership account, will be warranted in holding that such books contain a true statement of the partnership affairs, and in adopting the various entries therein made.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Gwynn Gabnett, Judge, presiding.
    This was a hill filed hy Joseph Gregg, against George M. Hord, for an accounting between them, as partners. The business in which the firm was engaged was that of buying grain in Chicago, and shipping the same to southern markets to fill orders, or for sale on consignment. The business was carried on from November 1, 1881, to May 1, 1886. The following is the agreement of co-partnership:
    “Chicago, III., Nov. 1, 1881.

    “The undersigned, George M. Hord and Joseph Gregg, have this day formed a partnership for the transaction of a legitimate commission business, based on cash orders, George M. Hord to furnish the capital required, and to pay all office and clerical expenses and stationery bills,—profits and losses to be -equally divided, after paying costs of telegrams and other expenses incident to the cash business. This partnership will last for five years, unless sooner dissolved by mutual consent or by death of one of the contracting parties,—Joseph Gregg to give his entire time and attention to the business. As a protection to George M. Hord against losses, Joseph Gregg shall each year leave undrawn $1000 of his share of the profits, which shall accumulate as additional capital until the termination of this contract, when the amount shall be paid over to Joseph Gregg. George M. Hord,
    Joseph Gregg.”
    George M. Hord was also a member of the firm of Hord Bros. & Co. The accounts of the commission business of Gregg & Hord were partially kept on the books of the latter firm, under the headings of “Joseph Gregg, special,” or of “Southern shipping account.” Hord, during the partnership, was engaged in the commission business on the Chicago Board of Trade, to which he gave his entire attention. The accounts, so far as kept in the books of Hord Bros. & Co., relate only to the receipt and expenditure of money, and these books were balanced every six months, and were at all times open to the inspection of Gregg.
    The case was referred to the master, to take the evidence and state an account, and report the same to the court, together with his finding. The master’s report found there was due from Gregg to Hord $2762.77. Both parties filed exceptions to the report, which were severally overruled, and decree rendered in accordance with the finding of the master. Complainant appealed to the Appellate Court, where the decree was affirmed, and he prosecutes this further appeal.
    Messrs. F. J. Smith & Helmer, for the appellant.
    Mr. E. A. Otis, for the appellee.
   Mr. Chief Justice Shope

delivered the opinion of the Court:

The questions presented by this record are principally questions of fact, and arise upon exceptions to the report of the. master. The first exception was that the master found the firm was dissolved by the act of the complainant, and not with the consent of the defendant. We think the evidence fully warranted him in such finding. On the 30th of March, 1886, complainant had an interview with defendant with relation to his leaving the firm. On the next day he wrote the defendant as follows: “As I told you yesterday, a certain party has offered me ample capital if I would start in business on the 1st of May next. I have given the matter careful consideration, and have concluded to embrace the opportunity and leave your firm on the 1st of May next, or sooner, if we can’t get along pleasantly till then.” In connection with the other' facts and circumstances proved, this letter, we think, warranted the finding of the master and the decree of the court approving the same.

The second exception is to the finding of the master that the complainant was not entitled to any credit for office and clerical expenses and stationery bills, which had been charged to the “Southern shipping account” by the defendant, as it is claimed, in violation of the partnership agreement. It appears that the “Southern shipping account” was charged with various sums of money paid for salaries of clerks, book-keepers, errand boys, stenographers, etc., aggregating $4095.05, and it is contended, that as it was stipulated in the original articles of co-partnership that Hord was to pay all office and clerical expenses and stationery bills, this sum should have been charged to him, and not to the shipping account of Gregg & Hord, and that as the master adopted the entry from these books of account, Gregg was thereby compelled to pay one-half of these charges wrongfully, and that the court erred in approving the report of the master in that respect. All the items of the account to which objection is made were entered in the books in which the partnership accounts were kept, and to which Gregg had constant and unlimited access, and of which entries he had knowledge, and to which he made no protest or objection, so far as shown by this record, until after .he had determined to leave the firm for a better situation. It was contended by appellee that the written agreement of co-partnership was modified subsequently to its execution, so that the firm was to be charged with the items entering into this account, and he and his two sons so testified, while, on the other hand, appellant positively denies that fact. It would seem that the preponderance of the evidence upon this point is with the defendant below,—at least, it can not be said, upon this record, that the court erred in finding the fact as found by the master. The fact that complainant knew of such charges, and made no objection, affords strong corroboration of the evidence of defendant, and would seem, of itself, to be a,circumstance tending strongly to show that the office and clerical expenses were rightfully charged to the firm. In Stuart v. McKichan, 74 Ill. 122, this court said: “The partnership books of account are presumed to contain a true history of the business, and a true record of the transaction between the partners. In the absence of proof to the contrary, reliance is properly placed on such books.” In Collier on Partnership, sec. 210, it is said: In ordinary partnerships nothing is more clear than this: “that although partners enter into a written agreement, stating the terms on which the joint concern is to be carried on, yet if there be a long course of dealing, or a course of dealing not long, but still so long as to demonstrate that they have all agreed to change the terms of the original written agreement, they may be held to have changed those terms by conduct.” (See, also, Story on Partnership, sec. 192; McCall v. Moss, 112 Ill. 493.) We are of opinion that the court below was authorized to approve the accounting upon the basis of the entries in the books, without regard to the stipulation in the original articles of partnership.

The third exception is, that the master found the complainant was not entitled to credit on account of the discounts and interest charged to the “Southern shipping account” of the firm. The complainant insists that the defendant did not furnish the capital as required by the original agreement, and that on account of such failure it became necessary to discount drafts against merchandise sold and consigned, and that large amounts of money were paid out for such discounts and charged to the “Southern shipping account,” and that complainant was entitled to credit for one-half thereof. It is insisted, also, that this was rendered necessary by a failure of the defendant to furnish money to carry on the business of the firm, as by the article of co-partnership he was bound to do. It is only necessary to say that the item of interest charged, $400, was not incurred for want of any capital with which to carry on the business. The items going to make up that amount were the cost and expense of converting drafts drawn against shipments, into money at Chicago. Hord’s testimony shows, uncontradicted upon this point, that on many occasions where grain was shipped to a customer, and drafts drawn and negotiated at the Chicago banks, the parties to whom shipment was made refused to receive the grain, and allowed the drafts to be protested. For the period these drafts were held by the banks beyond the usual time to collect them, interest was charged and paid thereon. It clearly appears that Gregg knew of such charges, and made no complaint that they were not proper charges against the firm, and what is said in respect of the second exception applies with equal force here. Both parties having daily access to the several books of account in which the firm accounts were kept, and having struck repeated balances of the partnership accounts, without complaint or objection until after the dissolution, the master was warranted in holding that the books contained the true statement of the affairs of the partners as between themselves, and in computing the balance as shown upon the books.

We have carefully examined the evidence in this case, and are satisfied that the decree is fully justified, and, finding no substantial error, - the decree must be affirmed.

Decree affirmed.


author: Mr. Justice Magruder

text:
    The People ex rel. George Hunt, Attorney General, v. The National Savings Bank.

      Filed at Ottawa October 4, 1889.

    1. Banks and banking&emdash;limit in charter as to time of making subscription to capital stock&emdash;and the extent of such subscription required. The charter of “The Kendall County Banking Company,” the name of which was claimed to have been changed on June 1, 1872, to the “National Savings Bank,” was granted by the legislature of this State on March 29, 1869. The tenth section of the charter provides: “This act shall be void, unless said corporation shall organize and proceed to business within two years after the passage of this act.” The third section declares: “The capital stock of said corporation shall be $50,000, with power to increase the same to $150,000, and shall be divided into shares,” etc. Only $10,000 of the $50,000 capital stock was subscribed and paid in within the two years limited by the charter: Held, that until all the capital stock was subscribed, the company had no authority to commence doing business, and that not having been done within the time prescribed, after the expiration of the two years the charter became void.
    2. A clause in the eighth section of the charter provides that “before said corporation shall commence business, the stockholders shall pay the several amounts subscribed in full, ” etc. The words "several amounts subscribed,” do not mean the several amounts subscribed which may aggregate less than the capital stock specified in the charter, but the several amounts subscribed which together make up the full amount of the capital stock. And as less than the $50,000 of capital stock, required by the charter, was paid in during the two years after its passage, the company was never legally in a position where it could “proceed to business” during that period, and consequently the charter become void under the tenth section.

      3. Same—former decision. The case of Allman r. Havana, Rantovil and Eastern Railroad Co. 88 Ill. 521, is not entirely overruled by the case of Peoria and Pekin Union Ry. Co. v. Peoria and Farmington Ry. Co. 105 Ill. 110. On the contrary, it is indorsed and quoted from in Temple v. Lemon, 112 Ill. 51. It stands as authority for the position, that, where the charter of a corporation says its capital stock “shall be” a certain, fixed sum, the corporation can not enter upon its regular business until the whole of such sum shall have been subscribed, unless the intention of the legislature to permit it to do so, is apparent from the language of the charter itself.
    4. But although the capital of a corporation is fixed by its charter at a certain sum, and without that sum being subscribed it can not “proceed to business,” yet the company may perform such acts as are necessary to perfect its organization, and to prepare it for entering upon its regular business, before the whole capital stock has been subscribed.
    5. Same—whether a State hank may adopt the word “National” as a part of its name. It is a matter of very serious doubt, under the restrictions in section 5243 of the National Banking act, whether a State bank doing business exclusively under the laws of a State can legally adopt the word “National” as a part of its corporate name.
    Writ oe Error to the Circuit Court of Cook county; the Hon. M. F. Tulet, Judge, presiding.
    At the January Term 1886 of the Cook County Circuit Court, an Information in the nature of quo warranto was filed against the defendant in error, the National Savings Bank. Thereupon defendant filed its plea, setting up the following special act of the legislature:
    “An act to incorporate the Kendall County Banking Company; in force March 29, 1869.
    “Section 1. Beit enacted by the People of the State of Illinois, represented in the General Assembly: That Warren M. Sweet-land, John A. Coy, and all such persons as shall become stockholders in the corporation hereby created, and their successors, shall be a body politic and corporate, by the name and style of ‘The Kendall County Banking Company,’ and shall have a common seal, which they may alter or renew at pleasure; power to plead and be impleaded, defend and be defended, in all courts of law and equity; to have and exercise powers incident to corporate bodies. Said corporation shall be located in the county of Kendall and State of Illinois.
    “Sec. 2. A majority of the corporators herein named may proceed to open books for subscription to the stock of said corporation, and shall, at the same time or thereafter, designate a time and place for the first election of directors of said corporation by parties subscribing to the stock thereof, and each share of stock so subscribed for shall be entitled to one vote.
    “Sec. 3. The capital stock of said corporation shall be $50,-000, with power to increase the same to $150,000, and shall be divided into shares of $100 each, which shares shall be deemed personal property, subject to taxation, and shall be transferable on the books of the corporation in accordance Avith the rules thereof.
    “See. 4. The said corporation shall have power to borrow money, and to receive money on deposit and pay interest thereon; and to loan money, either within or without this State, at any rate of interest, not exceeding that now or hereafter alloAved by law, to private individuals; and to discount loans,—and in computation of time thirty days shall be deemed a month, and twelve months a year,—and to make such loans payable either within or without this State, and to take such securities therefor, real, personal, or both, as the directors or managers of said corporation shall deem sufficient, and may secure the payment of such loans by deeds of trust, mortgages or other securities, either Avithin or without this State; may buy and sell negotiable paper and other securities; may purchase and sell real estate, and shall have the power to convey the same in any mode prescribed by the by-laws of said corporation; may accept and execute all such trusts, whether fiduciary or otherwise, as shall or may be committed to it by any person or persons, or by the order or direction of any court or tribunal, or other legally constituted authority of the State of Illinois, or of the United States, or elsewhere; may make such special regulations in reference to trust funds or deposits left for accumulation or safe keeping as shall he agreed upon with depositors or parties interested, for the pur-' pose of accumulating or increasing the same; may issue letters of credit and other commercial obligations,—not, however, to circulate as money,—and may secure the payment of any loans made to said corporation in any way the directors of said corporation may prescribe.
    “See. 5. Married women and minors may, in their own names, subscribe for stock and deposit money with said corporation, and receive certificates of stock and deposits in their own names, which stocks and deposits shall be subject to their disposal and order only.
    “Sec. 6. The said corporation shall have power to purchase and hold such real estate as may be necessary for the transaction of a bona fide banking business, and to take and hold any real estate as security for and in payment of loans and debts due or to become due to the corporation; and to purchase real and personal estate at any sale to enforce its securities or the payment of debts due, made by virtue of any process, mortgage or deed of trust, and to hold, use, improve, lease or sell and convey the same. Said corporation may make, alter and amend such by-laws, rules and regulations as are not inconsistent with the laws of this State or the United States: Provided, that any real estate sold under deed of trust or other conveyance held as security by said corporation, may be redeemed by the debtor, his, her or their heirs or creditors, by the payment of the full amount of debt and costs, with ten per cent interest on same, at any time within twelve months after such sale: And provided, also, that no real estate which may become the property of said corporation, except such as may be reasonably necessary in the transaction of a bona fide banking business, shall be held by said corporation for a longer period than may be reasonably necessary to enable said corporation to sell and dispose of the same to advantage.

      “Sec. 7. The business of said corporation shall be conducted by a board of not less than five directors, to be elected annually by the stockholders, who shall hold their offices until their successors are elected and qualified. The directors shall be stockholders, and residents of the said county. Each share of stock shall be entitled to one vote, and may be cast in person or by proxy. The board of directors shall elect a president and cashier, and such other officers and agents may be appointed or employed as said corporation or its officers may see proper.
    “Sec. 8. Before said corporation shall commence business the stockholders shall pay the several amounts subscribed in full,, and no increase of said capital stock shall be made at any time unless the amount thereof shall be paid into said corporation at the time of the issue of such stock, and the whole capital stock, including such increase, shall not exceed in amount the actual value of the property of said corporation at the time of the issue of such increased stock.
    “See. 9. Whenever default shall be made in the payment of any debt or liability contracted by said corporation, the stockholders shall be held individually responsible for an amount, equal to the amount of stock held by them, respectively, and such liability shall continue until three months after an assignment of the stock, and publication of a notice thereof in a newspaper published at the said.....of........, in. the county of Kendall and State of Illinois.
    “Sec. 10. This act shall be void unless said corporation shall organize and proceed to business within two years after-the passage of this act.
    “See. 11. No director of said corporation shall be indebted to said corporation, either directly or indirectly, at any time, to any amount greater than seventy-five per centum of the amount of the capital stock held by such director, in his own, name, in good faith, as his own.

      “Sec. 12. This act shall be deemed a public act, and shall be in force from and after its passage.”
    The plea further states that the said charter was immediately accepted, books for subscription were opened, and stock to the amount of $10,000 was subscribed for and paid up in full; that on August 2, 1870, said stockholders met at Millington, in Kendall county, and elected five directors, to serve one year, and until their successors were elected and qualified. The same day the directors elected a president, cashier and secretary pro tem, and ordered the cashier to procure a place of business, and pay the expenses incurred for books, furniture and other fixtures, and they adopted a corporate seal. A place of business was secured in Millington, books opened, and a general banking business transacted until June 1,1872. On June 1,1872, pursuant to notice, the stockholders changed the name to “National Savings Bank,” changed the location to Chicago, increased the number of directors to nine, and increased the capital stock to $200,000. Meetings were held in Chicago July 1, 1873, July 2, 1873, August 5, 1873, and July 2, 1874, and no stockholders’ or directors’ meetings were held after that time, no officers or directors elected, and no actual business done, until November 30, 1885, but that at short intervals during all said time the stockholders solicited further subscriptions to the capital stock, offered their stock for sale, and frequently and persistently endeavored to induce said corporation to resume business. On November 24, 1885, subscriptions to the amount of $190,000 were obtained, and on November 30,1885, a meeting of stockholders was held in Chicago, and nine directors were elected, who proceeded to organize by the election of officers, and ordered them to proceed to the transaction of business, under the charter, which the officers then proceeded to do. On December 3, 1885, the full amount of $190,000 last subscribed was paid in, making full payment of the total capital of $200,000. Said corporation thereupon entered upon and engaged in a general, banking business (not including the issuing of bills to circulate as money) in the city of Chicago and State of Illinois.
    The People, by the Attorney General, demurred to said plea, which demurrer was by the court overruled. The Attorney General elected to stand by the demurrer, and the court thereupon entered judgment for the defendant. Overruling said demurrer is assigned as error, and the case is brought here for the consideration of this court as to the sufficiency of said plea to justify the defendant in the exercise of its supposed powers and franchises.
    Mr. George Hunt, Attorney General, for the plaintiffs in error.
    Mr. George C. Christian, and Mr. D. M. Hillis, for the defendant in error.
   Mr. Justice Magruder

delivered the opinion of the Court:

An Act to incorporate “The Kendall County Banking Company,” whose name is claimed to have been changed, on June 1, 1872, to The “National Savings Bank,” was passed by the Legislature of this State on March 29,1869. Its 10th section is as follows: “This act shall be void, unless said corporation shall organize and proceed to business within two years after the passage of this Act.”

. The 3d section of the act provides as follows: “The capital stock of said corporation shall be $50,000.00, with power to increase the same to $150,000.00, and shall be divided into shares of $100.00 each,” etc. On August 1,1870, one person subscribed for 95 shares, and five persons, each for one share, making a total subscription of $10,000.00, which was paid in, on that day, in money. It is admitted, that no more of the capital stock was subscribed for or paid in, until November 24, 1885.

The terms of the charter are as positive, as they are explicit, that the capital stock “shall he” $50,000.00. Until all the capital stock was subscribed, the company had no authority to commence doing business. Having failed to get more than one fifth of the required subscriptions during the two years, it was, of course, unable to “proceed to business” within that period, in accordance with the 10th section of the charter. It follows, that, after March 29, 1871, the act in question became void.

That the law is as here stated will appear by a reference to the authorities. Redfield on Railways (Yol. 1, 4th ed. page 65) says: “Where business corporations are created with a definite capital, it is regarded as equivalent to an express condition, that the whole stock shall be subscribed before the company can go into full operation.” (referring to Shutz v. The S. & T. Railw. Co. 9 Mich. 269; The People v. The Troy House Co. 44 Barb. 625, and other cases.)

Boone on corporations says: “Where the capital stock and the number of shares are fixed, a corporation cannot commence the business, to carry on which it is created, before the whole stock is subscribed, unless by legislative enactment.” (referring to S. M. & M. R. R. Co. v. Anderson, 51 Miss. 829; Livescy v. Omaha Hotel, 5 Neb. 50; Hughes v. Antietam Man. Co. 34 Md. 316; Troy & Greenfield R. R. Co. v. Newton, 8 Gray, 596; Penobseott R. R. Co. v. White, 41 Me. 512; Oldtown Lincoln R. R. Co. v. Veazie, 39 id. 571; Fox v. A. C. S. & V. Turnpike Co. 46 Ind. 31; Willamette Freighting Co. v. Stannus, 4 Ore. 261, and other cases).

In Morawetz on Private Corporations (secs. 137, 408, 781) it is said: “If the capital of a corporation is fixed by its charter at a certain amount, the company has no authority by law to begin the prosecution of its enterprise, until the whole amount of capital has been subscribed. * *. * In the absence of some provision, indicating a contrary intention, the subscription of the entire capital, fixed by the charter, is always a condition precedent to the right of the company to begin the prosecution of its main enterprise. * * * Until the amount of capital, fixed by the charter, has been subscribed, the right of the company to begin to carry on business remains inchoate, ” * * * (referring to Bray v. Farwell, 81 N. Y. 607; Allman v. Havana, etc. R. R. Co. 88 Ill. 521; Peoria, etc. R. R. Co. v. Preston, 35 Iowa, 118; Barry v. Merchants Exchange Co. 1 Sandf. Ch. 280; Hightower v. Thornton, 8 Ca. 499, etc.)

The rule, here announced, is justified alike by the claims of honesty and by the demands of public policy. Those, who deal with a corporation, look to its charter, in order to ascertain the extent of the means contributed to it, and in order to judge of its ability to meet its engagements and perform its undertakings. They are deceived and lulled into a false security, when the company is permitted to do business on a less capital than that fixed in the Act of incorporation.

Counsel for defendant in error refer to certain cases, which, we think, are either distinguishable from the case at bar, or sustain the views of the text writers above quoted. In Minor v. Mechanics' Bank, 1 Pet. 44, the language of the charter was: “the capital stock * * * may consist of $500,000.00,” etc.; the Court construed “may” in its ordinary sense, and held that it was not clear, that the legislature intended to require the capital to be $500,000.00. In Lessee of Frost v. Frostberg Coal Co. 24 How. 278, and McCartney v. C. & E. R. R. Co. 112 Ill. 611, the capital stock was all subscribed, before operations were begun. In New Haven & Derby R. R. Co. v. Chapman, 38 Conn. 56, where the capital was $500,000.00, and the directors began the construction of the railway, when $416,700.00 had been subscribed, leaving $83,300.00 unsubscribed, the charter expressly permitted the construction of the road to be commenced, whenever $100,000.00 of the capital stock should have been subscribed. In Perkins v. Sanders, 56 Miss. 733, although the resolution, conferring authority to make the contract, sued on, may have been passed before all the stock was subscribed, yet the contract was not executed until thereafter. In Allman v. Havana, Rantoul & Eastern R. R. Co. 88 Ill. 521, this Court said: “The capital stock was fixed, definitely, at $1,000,000.00, to be divided into 10,000 shares, of $100.00 each, and that amount must have been subscribed before the corporation could have a legal existence. It was a condition precedent to the legal existence of the company. There is nothing in the “articles” or in the statute, which authorizes the corporation to commence operations, when a less amount is subscribed. Very many charters might be cited, which declare, where a less amount than the whole capital stock is subscribed, the corporation may proceed in their business; but nothing of that sort is found in this case.”

To say, that all the capital stock must be subscribed, before the corporation can have a “legal existence,” is not the same as saying, that such stock must all be subscribed, before the corporation can enter upon the transaction of its regular business. In this respect, the language of the Allman ease, although appropriate, when used in reference to the charter of a company, organized under the general railroad law, such as was there under consideration, may be too broad, when applied to the charter of the defendant in error, the first section of which provides, “that Warren M. Sweetland, John A. Coy and all such persons, as shall become stockholders in the corporation hereby created, and their successors, shall be a body politic,” etc. Although the capital of a corporation is fixed by its charter at a certain sum, the company has a right to perform such acts, as are necessary to perfect its organization, and to prepare it for entering upon its regular business, before the whole capital has been subscribed. (Morawetz on Private Corp. sees. 408 and 409.)

But counsel are mistaken in supposing, that the Allman case is entirely overruled by the case of P. & P. U. Ry. Co. v. P. & F. Ry. Co. 105 Ill. 110. On the contrary, it is endorsed and quoted from in Temple v. Lemon, 112 Ill. 51. It stands as authority for the position, that, where the charter of a corporation says its capital stock “shall be” a certain, fixed sum, the corporation cannot enter upon its regular business, until the whole of such sum has been subscribed, unless the intention of the Legislature to permit it to do so, is apparent from the language of the charter itself. No such intention appears in the act, incorporating “The Kendall County Banking Company.”

By the terms of that act, all the capital stock was actually required to be paid in, before "business could be commenced.

The eighth section is as follows:

“Before said corporation shall commence business, the stockholders shall pay the several amounts subscribed in full; and no increase of said capital stock shall be made at any time, unless the amount thereof shall be paid into said corporation at the time of the issue of such stock; and the whole capital stock, including such increase, shall not exceed, in amount, the actual value of the property of said corporation at the time of the issue of such increased stock.”

The words, “the several amounts subscribed,” do not mean the several amounts subscribed, which may aggregate less than the capital stock, but the several amounts subscribed, which together make up the full amount of the capital stock. This will be apparent from the phraseology of the sections, which precede the 8th section. It is also apparent from the language of the second clause of the 8th section, beginning: “and no increase of said capital stock shall be made,” etc. The words, “said capital stock” refer back to the words, “the several amounts subscribed.” “Said capital stock” in the second clause, is the same thing as “the several amounts subscribed,” in the first clause. The two expressions are used interchangeably.

If the amount of every increase of the capital stock must be paid in, the same reasoning and the same policy would require the original capital stock itself to be jiaid in. The natural construction of the first and second clauses of the 8ib section is this: before the corporation shall commence business, the amounts subscribed to make up the capital stock shall be paid in full, and any increase over the amounts so subscribed shall, also, be paid in full at the time of issuing the stock therefor.

If we are correct in this view, then as only $10,000.00 of the $50,000.00 of capital stock, required by the act, was paid-in during the two years after its passage, the company was never legally in a position, where it could “proceed to business” during that period, and consequently the act became void under the 10th section thereof.

We cannot refrain from saying, that the new name, selected by the Company—“National Savings Bank,”—is, in our opinion, an unfortunate one. It is generally understood, that savings’ banks are patronized chiefly by the poorer and laboring classes of the community. The use of the word,. “National,” might convey to their minds the impression, that the bank was organized under the Act of Congress in relation to> National Banks. Indeed, it is a serious question, whether, under the terms of the latter act, the name can be legally made use of at all. Section 5243 of the National Banking Act is as follows: “All banks, not organized and transacting business under the national currency laws, or under this Title, and all persons or corporations, doing the business of bankers, brokers or savings institutions, except savings-banks, authorized by Congress to use the word “National,” as a part of their corporate name, are prohibited from using the word “national, ” as a portion of the name or title of such bank, corporation, firm or partnership,” etc.

For the reasons, herein stated, the judgment of the Circuit Court is reversed.

Judgment reversed.