Culver v. the Third Nat'l Bank of Chicago.A1

• Decision Date: 30 September 1871
• Citation: 64 Ill. 528,1871 WL 8398
• Parties: HOWARD Z. CULVERv.THE THIRD NATIONAL BANK OF CHICAGO.a1
• Court: Illinois Supreme Court

64 Ill. 528

1871 WL 8398 (Ill.)

HOWARD Z. CULVER

v.THE THIRD NATIONAL BANK OF CHICAGO.a1

Supreme Court of Illinois.

September Term, 1871.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Messrs. JONES & GARDNER, and Mr. M. W. FULLER, for the appellant.

Messrs. WALKER, DEXTER & SMITH, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was an action of assumpsit, in the Superior Court of Cook county, brought by the Third National Bank of Chicago, claiming to be a creditor of the Northwestern Glass Company, against Howard Z. Culver, alleged to be a stockholder in that company.

It is agreed there are many other suits depending on the decision of this, and we have, therefore, given it careful consideration.

It is claimed by appellee that the action is brought on the liability imposed by the ninth section of “An act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes,” in force February 18, 1857, which is as follows: “All the stockholders of every such company shall be severally individually liable to the creditors of the company to an amount equal to the amount of stock held by them respectively, for all debts and contracts made by such company prior to the time when the whole amount of its capital stock shall have been paid in and a certificate thereof made and filed as hereinafter required.” Session laws 1857, p. 163.

The indebtedness declared on was evidenced by four promissory notes, alleged to have been executed by the glass company to Ira Holmes, cashier of the Third National Bank, and by him indorsed to the bank, and were given for money loaned by the bank to the glass company.

There was a general demurrer to the declaration, which was overruled. The general issue was then pleaded, and a special plea, averring that the notes sued on were not, nor was either of them, executed in the manner alleged in the declaration, which plea was accompanied by an affidavit of defendant, that he had a defense on the merits, and that the matters in his second plea contained were true as therein stated.

Plaintiff then took leave to amend the declaration, which he did by adding the following:

“That on or before the date of the said two notes last above mentioned, respectively, the said plaintiff, at the special instance and request of the said Northwestern Glass Company, advanced in loans to the said company, to wit, the several sums of money in said last two notes respectively mentioned, and in consideration thereof, and for the purpose of securing the payment of the said several sums of money so loaned and advanced, and the said two notes respectively mentioned by the said Northwestern Glass Company to the said plaintiff, the said company executed the said two notes last above mentioned, in manner aforesaid, and delivered the same to the said cashier of the plaintiff, as hereinbefore mentioned.”

A demurrer was put in to the second plea, which was sustained, and the cause went to the jury on the general issue, and there was a verdict and judgment for the plaintiff, a motion for a new trial, and in arrest of judgment, having been overruled.

To reverse this judgment, the defendant appeals, and makes on the record several points which we will notice.

Some question is made between the parties as to the right to carry a demurrer to a plea back upon the declaration. Where the general issue has not been pleaded, a demurrer to a special plea can, usually, be carried back to the declaration, and the judgment of the court had upon the declaration, and if that is bad, judgment will be rendered against it, on the principle that judgment will be rendered against the party committing the first error in pleading.

It has been oftentimes ruled by this court that, where a demurrer has been overruled and the general issue pleaded, a demurrer to a special plea can not be carried back upon the declaration. Wear v. Jacksonville and Savannah R. R. Co. 24 Ill. 593.

The court was called upon to review this doctrine in Wilson, for the use, etc. v. Myrick, 26 ib. 34, and said, we are now prepared to adhere to the rule laid down in the above case as being well supported by authority and most consistent with the philosophy of pleading; and further said, if the declaration be so defective that it will not sustain a judgment, that may be taken advantage of on a motion in arrest of judgment or on error.

The “philosophy” of the doctrine is that you can not plead and demur to the same pleading at the same time. The same doctrine was announced in Schofield v. Settley et al. 31 ib. 515; Ward v. Stout, 32 ib. 399.

In a previous case ( Brawner v. Lomax, 23 ib. 496), where this point arose, the court said the record would present a strange appearance, if, after a demurrer to the declaration has been overruled and the general issue pleaded, a demurrer to a defective plea should be carried back to the declaration. The record would not look well with a general demurrer to a declaration overruled, and then carried back over the general issue, when filed to a defective special plea.

But of innate and substantial defects in the declaration, advantage can always be taken by motion in arrest of judgment or on error, as was said in Wilson v. Myrick, supra.

A motion in arrest of judgment was entered in this case and overruled, and this is one of the errors assigned; and the point made is, that under the law making a stockholder liable, his liability does not attach unless a suit for the collection of the debt due by the company in which the defendant was a stockholder shall be brought against the company within one year after the debt became due.

This raises the question, and is the one first made by appellant: is the 23d section of the act of February 10, 1849, in force?

That is an act entitled “An act to authorize the formation of corporations for manufacturing, agricultural, mining or mechanical purposes.”

Section 23 is as follows: “No stockholder shall be personally liable for the payment of any debt contracted by any company formed under this act, which is not paid within one year from the time the debt becomes due, unless a suit for the collection of such debt shall be brought against such company within one year after the debt became due; and no suit shall be brought against any stockholder who shall cease to be a stockholder in any such company, for any debt contracted by said company, unless the same shall be commenced within two years from the time he shall have ceased to be a stockholder, nor until an execution against the company shall have been returned unsatisfied, in whole or in part.” Scates' Comp. 761.

It is insisted by appellant that the declaration does not bring the case within the provisions of this section, and consequently no recovery can be had against him.

To this, it is replied by appellee that this section is not in force, it having been impliedly repealed by the act of February 18, 1857.

On this question this controversy mainly depends.

Appellant insists that, as the act of 1857 contains no repealing clause, no part of the act of 1849 is repealed, except so far as it may be inconsistent with, and repugnant to, the act of 1857, and that section 23 is not repugnant and inconsistent, and is, therefore, in full force.

He further insists that these acts are in pari materia, and must be construed together; and if so held and so construed, the section in question remains in force. The question has a wider range.

It is a familiar principle, if two statutes are clearly repugnant to each other, the one last enacted operates as a repeal of the former. (Dwarris on Statutes, 673.) There is, however, another principle which must settle this question, and that is, a subsequent statute revising the whole subject of a former one, and intended as a substitute for it, although it contains no express words to that effect, operates as a repeal of the former. Bartlett v. King, 12 Mass. 537; Towle v. Mavett, 3 Greenleaf R. 22; Nichols v. Squire, 5 Pick. 168. These cases are cited in the case of The Board of Trustees of Ill. and Mich. Canal v. The City of Chicago, 14 Ill. 334, with approbation, and such will be found the doctrine of all the books. The case cited by appellant ( Dugan v. Gittings, 3 Gill, 138) holds that a later statute on a given subject, not repealing an earlier one in terms, is not to be taken as a repeal by implication, unless it is plainly repugnant to the former, or unless it fully embraces the whole subject matter.

It is, then, only necessary to inquire if the act of 1857 is upon the same subject as the act of 1849. Of this there can be no dispute.

The act of 1849 was passed immediately on the adoption of the constitution of 1848, in conformity to that clause of the constitution which provides that corporations not possessing banking powers or privileges may be formed under general laws, but shall not be created by special acts, except for municipal purposes, and in cases where, in the judgment of the general assembly, the objects of the corporation can not be attained under a general law. Art. 10, sec. 1.

The act of 1849, it will be perceived, embraced corporations for agricultural purposes, as well as mechanical, mining and manufacturing purposes, but not for chemical purposes. In 1855, the general assembly passed a general incorporation act for agricultural and horticultural purposes, giving to all such associations all the powers deemed necessary to effect the objects of their incorporation. It provided a complete scheme.

In 1857, the whole subject of incorporations, for these various purposes, came before the general assembly for revision. They then had the subject fully before them, and, having provided by the act of 1855 for corporations for agricultural purposes, they omitted that subject from the act, and embraced within it incorporations for chemical purposes, as the title and body of the act...