, 1873-07-01
GREAT WESTERN INSURANCE
COMPANY.
4 Test Suit Against Ono Of Tho Stock.
holders Carried to tho United
States Circuit Court.
Summary of the Exceptions by
tho Plaintiff in Error.
Proceedings; in the Case Before His
Honor Judge Dru1nmond
Yesterday.

Tho stockholders and creditors Of tho Great
Western insurance Company aro Interested In
oortuin proceedings which took placo before
Judge Drummonl, yesterday, sitting as Judge
Of tho United States Circuit Court. 1nban 8.
Major, a stockholdor, md at ono time Director
Of tho Company, prosecuted writ Of error to
tho United StatoH Circuit Court to rororao tho
Judgment rendered against him for tho oolloo-
tion OF tho unpaid balance of his stock sub
Bcription, at tho suit Of Clark ". Upton,
Assignee Of tho Great Western Insurance
Company, ID bankruptcy In the United
StatoB District Court, md the error
wns allowed, md tho caso ordorod sent to tho
Circuit Court, on bill Of exceptions which, as
1t will probably apply to tho caHes Of a large
ns,mbor Of other stockholders We hero sunmar-
tzo, Rs followH:
That on the trial, plaintiff, to maintain tho
issue on hts part, introduced evidence tending to
show that tho defendant subscribed an agroo-
meut to take fifty shares Of stook In tho Great
Wcetorn Insurance Company, and to pay therefor
S1oo Per SHARE to-wit: s per cont on receipt OF
tho certificate for a1ch stock, por cent in three
months, por cent in six months, and per cent
in nino months, respectively, after such receipt
call OF tho Directors, as tAoy might be- instruct
cd By tho majority Of tho BtockholdorH repro.
sentod at any regular meeting.
That thereafter, about January, 1870, the anil
Company iasnod and dofonaans received upon
such subscription tho following certificate
This is to certify that Laban g. Major Ii entitled to
fty shares N tho capital stock Of tho Great western
Inaranee oomnany. of Chicago, Ill.,, of $loo e.ch.
PERSON by attorney, tho snrranior Of thia GER
tiasate. being suees. 70 tho charter and bylaws Of
p cont aa on Ieep 70 81 iye
sss sS3Ss %Ss's' tis fSs% at at
the haauco being subject tho call Of tho Directors
IS they may DO Instructed BY tho majority Of tho stock
cont annua Dividend from te su"s Of earnngs n nRs
guaranteed to stockholders on cash capital paid.
Tint the defendant paid Oh such stock 81 900,
and no more.
That tic defendant WAS Director Of tho Com
pany from the spring of 1870 up to aud until tho
llro of Oct. and 8, 1871.
But no evidence WAS introduced of any other
oxproas contract on the part OF tho defendant.
Tho defendant objected to tho Testimony az
lection wha ovorrulod, and tho defendant then
aud there duly excepted.
No evidence was offered tending to provo that
tho Directors Of aald Company had made coll
nnlcr tho direction Of the stockholders. or TINT
tho stockholders, or any majority Of them, repre-
sonted at my regular mootinB, had over in-
struotad tho Directors to mike such CALI
Court, entered 9th July 1872, directing tho pny-
mont by Stockholders to tho Assignee of tie
entiro amount unpaid OH tho capital stock SUBJ
Bcribed, that in default thereof tho Assignee
should proceed to collect tho sa1no, and TINT
notice Of o. this call be given to tho htook-
holders without unreasonable delay by publi-
cation or otherwise,
Defendant hllogcB that no testimony Was
offered tonding to uEow that notice was given Of
tho application to Court for said order; but no
tied wua ahoWn to lava been sent to him
through the mail in July, 1872, prior to tho com
moncenient Of said suit, that tho foregoing orflor
Of tho District Court had boon entered, and it
was shown to have been duly published
Defendant moved TO exclude a}l tho testimony
on tho ground that no sufficient case, in point Of
law. was mado nnlor tho declaration In the suit,
which motion the Court overr1llod, and tho do
fcndant then and thoro duly excepted.
Iheroupon tho Jury gave their verdict for the
plaintiff. Tho defendant moved for now trial
cases. mud excepted: and the Court rendered
Judgment in favor Of the plaintiff and against
the defendant, aud tho defendant then and
there excepted to the Judgment
The record ,sns yesterday presented to Judge
Drummond, and tho counsel on both BidoB woTe
heard. Tho ob}cctioua Of tho counsel Of plaiu-
tin lMa5or) in error werc, that there was
variance bctwoen the hrBt count Of tho deolara-
tion in tho assumpsit suit md tho proofs, tho
made (thia was agreed to by the other sido);
that thoro wes no notice to Major OF tho inton-
tlon to petition the District court and to mako an
assessment; and that under the common counts
they could not recover. under an implied con-
tract whom an express contract was proved.
The Court ordered the record to be entered.
and the case will shortly como on for argument.