ferent means, provided they all were leading to the same unlawful result." The giving of each of said instructions was assigned as a cause for a new trial. The law as declared in said instructions is sustained by many authorities. 3 Greenl. Ev. § 93; 3 Russ. Crimes (9th Am. Ed.) marg. pp. 165, 166; Whart. Cr. Law (9th Ed.) §§ 1398, 1399, 1401; Whart. Cr. Ev. §§ 32, 698; McKee v. State, 111 Ind. 378, 383, 12 N. E. 510; Archer v. State, 106 Ind. 426, 432, 7 N. E. 225; · Kelley v. People, 55 N. Y. 565, 14 Am. Rep. 342, 350; People v. Arnold, 46 Mich. 277, 9 N. W. 406; Dayton v. Monroe, 47 Mich. 194, 196, 10 N. W. 196; Spies v. People, 122 III. 1, 12 N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 320, 395, and note page 476, Am. St. Rep. Appellant contends that each of said instructions is erroneous for the further reason that it is not stated that the circumstances or facts establishing the conspiracy must be proven beyond a reasonable doubt. It will be observed that the indictment did not charge appellant with the offense of conspiracy, but with the crime of murder in the first degree. It was not necessary, therefore, that the elements or facts constituting the crime of conspiracy be proven beyond a reasonable doubt. It was sufficient if each essential element of the crime charged in the indictment be so proven. That such proof was required as to the crime charged, the jury were fully informed by other instructions. The court, however, did inform the jury, in another instruction, "if they believed beyond a reasonable doubt, from all the facts and circumstances in evidence, that appellant and said Marshall, or appellant, Marshall, and some other person or persons, entered into a conspiracy to commit the offense charged, such proof is sufficient to establish the existence of such conspiracy, though no direct evidence showing such conspiracy was introduced." In another instruction the court informed the jury "that the declarations of Marshall before the crime charged was committed, in the absence of the appellant, were proper to be considered by them, with all the other facts and circumstances proven on the trial, in determining the guilt or innocence of appellant, if the jury believed from the evidence, beyond a reasonable doubt, that appellant prior to the murder entered into a conspiracy with said Marshall to rob or murder or to burglarize the house of the deceased, and that such declarations were made in furtherance of such conspiracy or common design; and the fact, if it be a fact, that Marshall has been tried and acquitted of said charge, will not make such statements or declarations incompetent, if such conspiracy has been shown by the evidence." The instructions are to be read and construed together as an entirety (Shields v. State, 149 Ind. 395, 406, 407, 410, 49 N. E. 351), and when so construed it appears that on the subject of proof of the facts constituting the conspiracy they were more favorable to appellant than he was entitled to

demand. It is clear from what we have already said on the admissibility of the record of Marshall's acquittal that the court did not err in informing the jury, in the instruction last quoted, that the declarations of Marshall referred to in said instructions were to be considered by the jury, even if Marshall had been tried and acquitted on said indictment, if the conspiracy was proven by the evidence. Holt v. State, 39 Tex. Cr. R. 282, 45 S. W. 1016, 46 S. W. 829; People v. Kief, 126 N. Y. 661, 27 N. E. 556.

Appellant complains of certain instructions given at the request of the state on the subject of reasonable doubt. Some of said instructions complained of may be ambiguous and contain verbal inaccuracies, and, if standing alone, might be objectionable. It is settled law in this state, however, that instructions are considered with reference to each other, and as an entirety, and not separately, or in dissected parts; and if the instructions, as a whole, correctly and fairly present the law to the jury, even if some particular instruction, or some portion of an instruction, standing alone or taken abstractly, and not explained or qualified by others, may be erroneous, it will afford no ground for reversal. Shields v. State, 149 Ind. 395, 406408, 49 N. E. 351, and cases cited; Rains v. State, 152 Ind. 69, 52 N. E. 450. Mere verbal inaccuracies in instructions, or technical errors in the statement of abstract propositions of law, furnish no grounds for reversal, when they result in no substantial harm to the defendant, if the instructions, taken as a whole, correctly state the law applicable to the facts of the case; nor is the giving of an erroneous instruction reversible error, when it appears that the substantial rights of the defendant have not been prejudiced thereby. Shields v. State, supra, and cases cited; Harris v. State, 155 Ind. 265, 58 N. E. 75.

Two instructions on the subject of reasonable doubt stated the law as declared in Bradley v. State, 31 Ind. 492. One of said instructions was requested by appellant. The court gave an instruction at request of appellant which informed the jury, in substance, that in a criminal case the law contemplates the concurrence of 12 minds in a conclusion of guilt, before a conviction could be had, and that each juror must be satisfied, beyond a reasonable doubt, of the defendant's guilt, before, under his oath, he can consent to a verdict of guilty; the same being the language used in Castle v. State, 75 Ind. 146. The jury was instructed, at request of appellant, that he "is presumed to be innocent, and that this presumption continued through the trial, and until overthrown by the evidence, and that it is the duty of the jury, if it can consistently be done, to reconcile the evidence upon the theory that the defendant is innocent." though there may be verbal inaccuracies and ambiguities in some of said instructions complained of, yet, when they are read and con

Al

strued in connection with the instructions just mentioned, and the other instructions on this subject, and all the instructions given are considered and construed together as an entirety, it is clear that the same did not prejudice the substantial rights of appellant. Moreover, the verdict was right, under the evidence, and in such case we are properly required to disregard such errors. Stanley

y. Dunn, 143 Ind. 495, 501, 42 N. E. 908; Mode v. Beasley, 143 Ind. 306, 334, 42 N. E. 727, and cases cited; Swaim v. Swaim, 134 Ind. 596, 599, 33 N. E. 792, and cases cited; Woods v. Board, 128 Ind. 289, 292, 27 N. E. 611, and cases cited; Reed v. State, 141 Ind. 116, 123, 40 N. E. 525; Strong v. State, 105 Ind. 1, 4 N. E. 293; Epps v. State, 102 Ind. 539, 1 N. E. 491; Galvin v. State, 93 Ind. 550; Gillett, Cr. Law (2d Ed.) § 917.

It is further contended by appellant that the court erred in refusing to give certain instructions asked by him. The attorney general insists that there was no available error in this, for the reason that the instructions were not signed by appellant or his counsel, as required by subdivision 6 of section 1892, Burns' Rev. St. 1894 (section 1823, Rev. St. 1881; section 1823, Horner's Rev. St. 1897). Said instructions not being signed as required by the statute, no available error was committed in refusing the same. Glover v. State, 109 Ind. 391, 403, 10 N. E. 282. We have, however, examined the instructions requested by appellant and refused, and find, so far as they correctly expressed the law, they were substantially embraced in those given by the court. Such being the case, appellant would have no ground for complaint, even if the request for such instructions had been properly made. Delhaney v. State, 115 Ind. 499, 501, 18 N. E. 49; Stephenson v. State, 110 Ind. 358, 374, and cases cited; Siberry v. State, 149 Ind. 684, 694, 39 N. E. 936; Anderson v. State, 147 Ind. 445, 450, 46 N. E. 901; Hinshaw v. State, 147 Ind. 334, 47 N. E. 157.

Upon a careful review of the entire record, we are convinced that the verdict was right upon the evidence, that a correct result was reached, and that no reason exists for a reversal of the judgment. Judgment affirmed.

(27 Ind. App. 196)

POLLARD v. FIRST AVE. COAL-MIN. CO. et al.

(Appellate Court of Indiana. June 25, 1901.) TRIAL FINDINGS OF FACT-FINAL JUDGMENT -AMENDMENT OF FINDINGS.

After final judgment, the trial court has no power to amend a special finding.

Appeal from superior court, Vanderburg county; John H. Foster, Judge.

Action between William S. Pollard and the First Avenue Coal-Mining Company From a judgment in favor of the latter, the former appeals. Reversed.

J. E. Williamson, for appellant. James G Owen, H. M. Logsdon, and Henry Mason, for appellee.

WILEY, J. Appellant sued appellee upon a promissory note. The issues were joined by answers and replies, and the cause was tried by the court. Upon proper request, the court made a special finding of facts, and stated its conclusions of law thereon. Immediately following the court's conclusions of law, a motion in writing to amend the tenth finding of facts was interposed. Without ruling upon this motion, the court pronounced judgment upon the conclusions of law. Thirty-one days after the rendition of the judgment the court made an order amending finding No. 10 in material matters. This question is presented by the record: Is a trial court authorized to amend its special finding of facts after rendition of judgment? There is no doubt of the right of the court to amend its special finding before judgment, and during the period within which a motion for a new trial may rightfully be filed, by supplying omissions and correcting inadvertent mistakes, so that the finding shall exhibit all the material facts that the court believes to have been proven. Jones v. Mayne, 154 Ind. 400, 55 N. E. 956, and authorities there cited. It has never been held, however, in this jurisdiction, that a special finding of facts can be amended after final judgment. When final judgment has been pronounced upon special findings of facts and conclusions of law, both the findings and conclusions are merged into the judgment. They have served their purpose. This court held in the case of Insurance Co. v. Koontz, 17 Ind. App. 625, 47 N. E. 233, that the court, after final judgment, was without power to amend and supply defects in a special finding on motion of one of the parties. In the case of Hartlepp v. Whitely, 131 Ind. 543, 28 N. E. 535, 31 N. E. 203, it was held that the court could not amend and supply defects in a special finding after the rendition of the judgment. In the later decisions of the supreme court to the effect that the trial court may amend its special finding of facts within certain limitations, it has uniformly been held that the amendment must precede final judgment. Thus, in Thompson v. Insurance Co., 139 Ind. 325, 38 N. E. 796, the court said: "We are therefore of the opinion that the trial judge should, in all cases, be permitted to amend his special findings and conclusions of law at any time before final judgment," etc. And in Jones v. Mayne, supra, the court said: "A court, after finding the facts, may amend the finding at any time before final judgment," etc. If it should be held that the trial court could amend its special finding of facts after judgment. the rule would be so elastic as to admit of abuses; for the cases we have cited hold that the court, upon its own motion and

without even suggestions from the litigants, can amend its special findings before final judgment. Such a rule would leave judicial proceedings and judgments in a state of uncertainty, and this should not be done. Under the authorities in this state, we are clearly of the opinion that such power should not be granted to trial courts. For the reasons given the judgment will have to be reversed, and this makes it unnecessary for us to go into the merits of the case. Upon the special finding of facts as amended, we are strongly inclined to the view that they would sup- port conclusions of law quite different from those stated; but upon this proposition we express no opinion, as we think justice will be best subserved by a new trial. Judgment reversed, and the court below is directed to grant appellant a new trial.

(27 Ind. App. 472)

NORTH MERCER NATURAL GAS CO. v. SMITH et al.1

(Appellate Court of Indiana. June 25, 1901.) QUIETING TITLE-FOREIGN CORPORATION-EV

IDENCE-ADMISSIBILITY.

1. Where an action is brought by a foreign corporation to quiet title to land, which title is denied merely, a certificate of the clerk of the court of the county wherein such land is situated, stating that such corporation has not filed a certificate authorizing it to do business in such county as a foreign corporation, or otherwise, is not admissible in evidence, since such failure does not invalidate the contracts of foreign corporations made within the state.

2. In an action by a foreign corporation to render evidence of its failure to comply with the law as to duties of foreign corporations doing business in the state available, it must be shown by a plea in abatement under oath in an answer, which must precede an answer in bar.

Appeal from circuit court, Randolph county.

Action by the North Mercer Natural Gas Company against Duncan Smith and another. From a judgment in favor of defendants and an order denying a motion for a new trial, plaintiff appeals. Reversed.

Denny & Moran, Wheeler & Brice, and W. W. Orr, for appellant. J. F. Lafollette and Geo. H. Koons, for appellees.

BLACK, C. J. The appellant, a corporation organized under the laws of Ohio, by its complaint against the appellees, Duncan Smith and Gordon Smith, sought to quiet its title to certain real estate situated in Jay county, and to enjoin the appellees from interfering with the appellant's possession and enjoyment of the same and its appurte nances. The cause was commenced in the Jay circuit court. The venue was changed to the Delaware circuit court, and thence to the court below. The appellees answered the complaint of the appellant by a general denial, and the appellee Gordon Smith filed a pleading, which therein is denominated a "cross complaint," against the plaintiff, in Rehearing denied,

two paragraphs,-the first being a complaint to recover possession of the same real es tate, and the second being a pleading seeking in the usual form to quiet the title of Gordon Smith to the real estate. Issue was taken upon each of the paragraphs of cross complaint by a general denial. The cause was submitted to a jury for trial. The appellant assigns the overruling of its motion for a new trial as error.

On the trial counsel for the appellees introduced in evidence a certificate of the clerk of the Jay circuit court under the seal of that court, wherein the clerk, stating that he was the legal custodian of the appointments of agents for foreign corporations filed in that county, certified that, after having carefully and diligently searched, he found no certificate filed by the North Mercer Gas Company in his office, or by any one for her or in her behalf, authorizing her to do business in Jay county, Ind., as a foreign corporation, or in any other capacity. The admission of this evidence over the objection of the appellant is one of the grounds of the motion for a new trial. No objection was made to the form of the offered proof, as that it was not under oath, but was by official certificate, or because the appellant was not properly named therein; and we can consider only objections suggested to the trial court. Among the objections it was urged that the evidence did not support, or tend to support, any issue joined in the case, that there was "no plea of nul tiel in this, and nothing but a general denial filed to the complaint," and for that reason the evidence was incompetent and irrelevant. It is well settled that the failure of the agent of a foreign corporation to deposit in the clerk's office of the county where he proposes doing business the authority under or by virtue of which he acts as agent, or to file with the clerk of the circuit court of such county authority of the board of directors or managers authorizing citizens or residents of this state to sue the corporation in the courts of this state, and authorizing service of process on such agent, etc., as provided by section 3453 et seq., Burns' Rev. St. 1894, and section 3022 et seq., Horner's Rev. St. 1897. does not render invalid the contracts of the foreign corporation made in this state. The business transactions of the corporation and its rights arising thereunder are not affected by such failure, except that, in a proper case, if the failure be properly presented to the court, the remedy of the corporation will be suspended until such statutory require ments shall have been complied with. To render evidence of such failure available in a case where it may have any effect, it must be shown by plea in abatement, and therefore under oath in an answer which must precede, and cannot be pleaded with, an answer in bar, and the issue thereon must be tried first and separately. Section 368, Burns' Rev. St. 1894; section 365, Horner's

Rev. St. 1897; Machine Co. v. Caldwell, 54 Ind. 270, 23 Am. Rep. 641; Machine Co. v. Hatfield, 58 Ind. 187; Daly v. Insurance Co., 64 Ind. 1; Manufacturing Co. v. Brown, 64 Ind. 548; Elston v. Piggott, 94 Ind. 14; Wiestling v. Warthin, 1 Ind. App. 217, 27 N. E. 576; Association v. Markley (Ind. App. No. 3697, at this term) 60 N. E. 1013. Whether this was a case wherein such matter might by plea be made available against the corporation need not be decided. See D. S. Morgan & Co. v. White, 101 Ind. 413; Smith v. Little, 67 Ind. 549; section 3458, Burns' Rev. St. 1894; section 3027, Horner's Rev. St. 1897. The court refused to strike out this evidence, and we observe that in the instructions to the jury no reference was made to such evidence, or to the matter to which it related. Its introduction was erroneous, and we cannot decide that it was not prejudicial to the appellant. Judgment reversed, and cause remanded for a new trial.

(28 Ind. App. 69)

UNION MUT. BUILDING & LOAN ASS'N v. AICHELE et al.

(Appellate Court of Indiana. June 25, 1901.) BUILDING ASSOCIATIONS-STOCK CERTIFICATE -PROVISIONS-CONSTRUCTION.

A provision in a building association stock certificate that the association agrees to pay the holder a certain sum for each share, as soon as the accumulation in the loan fund shall equal such sum per share, but that the shareholder shall not be required to make more than a specified number of payments on his shares, is not a guaranty that the stock will mature on such number of payments being made.

the Union Mutual Building and Loan Association, a corporation duly organized under the laws of the state of Indiana, the sum of six hundred (600.00) dollars, with six per cent. interest per annum, and five per cent. premium thereon from date until paid, payable monthly, on or before the last Saturday of each month. Principal, interest, and premium payable at the office of said association, at Indianapolis, Indiana, with reasonable attorney's fees, all without any relief from valuation or appraisement laws. Any failure to pay interest or premium when due shall make principal, interest, and premium at once due, and any waiver of such right shall not prevent the payee from enforcing the right upon any recurrence of the default. The shares of stock in the Union Mutual Building and Loan Association held by the undersigned, as shown by certificates of stock Nos. 1,323, are hereby transferred and pledged to said association as collateral security for the performance of the conditions of this obligation and of the mortgage securing the same. Christina Aichele. Frederick Aichele." The stock certificate, which was introduced in evidence, is as follows: "Union Mutual Building and Loan Association, Indianapolis, Ind. Certificate No. 1,323; No. of shares, 6; amount, $600. This certifies that Christina F. Aichele, of Evansville, county of Vanderburgh, state of Indiana, is a member of the Union Mutual Building and Loan Association of Indianapolis, Indiana, and has subscribed for 6 shares of stock therein. consideration of the monthly payment of ninety cents on each and every share named in this certificate, together with a full com

In

county; J. H. Foster, Judge.

Suit by the Union Mutual Building & Loan Association against Christina Aichele and others to foreclose a mortgage. From a judgment for plaintiff for a specified amount, it appeals. Reversed, and new trial granted.

Louis O. Rasch, McBride & Denny, and Jas. E. Franklin, for appellant. Maier & Moll, for appellees.

COMSTOCK, J. Appellant, an incorporated building and loan association, sued appellees upon a promissory note and to foreclose a mortgage on real estate given to secure the payment of the same. Judgment was rendered in favor of appellant for $60.50, and for the foreclosing of said mortgage and the sale of the real estate. The note bears date January 1, 1892. On the day of Novem

ber, 1891, appellant issued to appellee Christina its certificate for six shares of stock. This stock was pledged as collateral security for the payment of said note. The question presented by this appeal is what construction must be given to this stock certificate. The following is a copy of the note: "First Mortgage Note. $600.00. Indianapolis, Ind., January 1st, 1892. Sixty-seven months after date. for value received, I promise to pay to

forth in the by-laws of the association, a copy of which by-laws is furnished herewith, the receipt of which is acknowledged by the acceptance of this certificate, the Union Mutual Building and Loan Association agrees to pay to the above-named shareholder, her heirs, executors, administrators, or assigns, the sum of one hundred dollars for each of said shares, as soon as the accumulation in the loan fund shall equal one hundred dollars per share, but in no case shall the shareholder be required to make more than seventy monthly payments on said shares. Said payments to be made at the home office in the city of Indianapolis, Indiana, within ninety days after the maturity of this certificate. In no event is this certificate to be considered as having matured until one month after the date of the last monthly payment. The regular annual meeting of this association will be held at the home office, in the city of Indianapolis, Indiana, on the first Monday in October in each year, at 2 o'clock p. m. Given under the seal of the Union Mutual Building and Loan Association at Indianapolis, Indiana, this 1st day of October, 1891. John C. Shoemaker, President. James E. Franklin, Secretary."

Appellant claims that the language of the certificate is a limitation of the liability of the shareholder to make monthly payments of dues; that it is not a guaranty of maturity. The position of appellees is that this was a guaranty that the shares would mature and be of the value of $100 when 70 monthly payments had been made, and that the trial court, in effect, so decided. The following language, "The Union Mutual Building and Loan Association agrees to pay to the above-named shareholder, her heirs, executors, administrators, or assigns, the sum of one hundred dollars for each of said shares as soon as the accumulations in the loan fund shall equal one hundred dollars per share, but in no case shall the shareholder be required to make more than seventy monthly payments on said shares," of the certificate, fixes the time of maturity of the stock as soon as the loan fund shall equal $100 per share. If the 70 monthly payments have been made, and the stock is not of the value of $100 a share, no further payments can be required, but the stock is not matured until the added earnings of the association make them of par value. This construction is required by the language of the certificate, which expressly fixes the time when the association will pay the shareholder $100 for each share.

That the limitation in the number of payments is not a guaranty that the stock will mature upon such number of payments, but that its only effect is to relieve the shareholder from the duty of making any more than 70 monthly payments, is not only required by the language itself, but is a just and reasonable construction. Beach on Contracts (at section 708) says: "A reasonable construction should be given every contract, for it should not be presumed that the parties intended anything either senseless or absurd. A rigid adherence to the letter often leads to results and misinterprets the the meaning of the parties. Inconsistent clauses must be construed according to the subject-matter, and the motive and the intention of the parties, as gathered from the whole instrument, must prevail over the strictness of the letter. The fact that the construction contended for would make the contract inequitable, and place one of the parties at the mercy of the other, may be taken into consideration." Endlich on Building Associations (at section 517) described incorporated building associations as incorporated partnerships. In Towle v. Associa tion (C. C.) 61 Fed. 446, it is said: "These associations are essentially corporate partnerships. They have no function except to gather together from small stated contributions sums large enough to justify loans. Their officers are the agents of every stockholder. They have no debtors, no creditors, except the stockholders, and whether a stockholder is a creditor or debtor depends on whether he has exercised his privilege of

The The

borrowing money from the common fund." In Association v. Elbert, 153 Ind. 198, 54 N. E. 753, our supreme court adopted the foregoing view, that the relation existing between the members of a building association is that of a quasi partnership. members share in profits and losses. shares are matured by the payment of dues and the accumulation of property. They can only reach their par value when the payment of dues and accumulation of profits have reached an actual value of $100 per share. If a shareholder is allowed to withdraw $100 per share when he has paid in 70 installments, of 90 cents each, or $63, whether the association has made or lost money, the element of mutuality would be destroyed, and inequality result to other members of the association. Such construc tion would be unreasonable. Reference is made to Bertche v. Association, 147 Mo. 343, 48 S. W. 954; Daley v. Association (Mass.) 52 N. E. 1090; Thomp. Bldg. Ass'ns (2d Ed.) §§ 314, 175; King v. Union (Ill. Sup.) 48 N. E. 677; note to Robertson v. Association, 69 Am. Dec. 160; End. Bldg. Ass'ns, § 480.

The question of fraudulent representation of the agent or agents of the association as to the date of the maturity of the stock is not presented. The conclusion reached renders it unnecessary to consider the proposition for which counsel for appellant contend, that it is not within the power of a building association to guaranty a fixed period for the maturity of its stock. The decision in Association v. Wagner, 122 Ind. 78, 23 N. E. 689, cited by counsel for appellee, turned upon the construction to be given a certain section of the by-laws of the association. Such section provided that "all loans shall become due in six years from the date of this incorporation, or on the stock of the association being of par value, in either of which cases the note given by the borrower and the stock upon which the loan was made shall be set off against each other." The case is not in point. ment is reversed, with instruction to sustain appellant's motion for a new trial, and for further proceedings not inconsistent with this opinion.

The judg