clearly that no abortion was produced. The variance between the charge and the proof is fatal.

The judgment of the criminal court of Cook county is reversed.

Judgment reversed.

(No. 14034.-Reversed and remanded.)

THE CHICAGO AND NORTHWESTERN RAILWAY COMPANY, Appellee, vs. LOUIS L. EMMERSON, Secretary of State, Appellant.

Opinion filed October 22, 1921-Rehearing denied Dec. 9, 1921.

This case is controlled by the decision in Armstrong v. Emmerson, (ante, p. 54.)

APPEAL from the Circuit Court of Sangamon county; the Hon. E. S. SMITH, Judge, presiding.

EDWARD J. BRUNDAGE, Attorney General, (CLARENCE N. BOORD, and Jas. W. GULLETT, of counsel,) for appellant.

EDGAR R. HART, and BARBER & BARBER, (NELSON J. WILCOX, of counsel,) for appellee.

Per CURIAM: The Chicago and Northwestern Railway Company is a railway corporation organized and existing under the laws of Illinois, Wisconsin and Michigan. It is engaged in the business of a common carrier of passengers and freight, and by means of its connections with other systems of railroads its business extends to all of the several States of the United States. Prior to October, 1906, its capital stock was $100,000,000. Upon compliance with the requirements of law the corporation was authorized in October, 1906, to increase its capital stock to $200,000,000. Prior to July 1, 1919, the corporation had issued $167,825,400 of its capital stock. Under the general Corporation act of 1919 the Secretary of State assessed the annual license

fee or franchise tax against the corporation, based on the total amount of capital stock authorized by the articles of incorporation, which amounted to $14,378. Penalties under the act would attach for non-payment of the tax after July 31. The corporation denied the statute authorized the Secretary of State to assess the tax on the basis of the total capital stock and contended the tax should be based on only the amount of the capital stock issued, inasmuch as the issue of additional stock could only be made by authority of the Public Utilities Commission, and that body might refuse to authorize a further issue. The Secretary of State insisted on payment of the amount assessed, which the corporation paid under protest and then filed its bill to enjoin the Secretary of State from paying any of the money in excess of $12,064.97 into the State treasury and that he be required to refund to complainant the excess paid to him, $2313.03. The circuit court overruled a general demurrer to the bill, and, defendant electing to abide by his demurrer, entered a decree in accordance with the prayer of the bill, from which defendant has prosecuted this appeal.

The sole question presented by this appeal is whether the annual franchise tax or license fee required by the general Corporation act of 1919 to be paid by a public utility corporation is to be based on the capital stock authorized by the charter or articles of incorporation or only on that part of the capital stock which has been actually issued or authorized to be issued by the Public Utilities Commission or other commission having supervision over the issue of capital stock. That precise question was raised in Armstrong v. Emmerson, (ante, p. 54,) and it was decided contrary to the contention of appellee. It is therefore unnecessary to further discuss the question here, as that case must control.

The decree is reversed and the cause remanded to the circuit court, with directions to dismiss the bill.

Reversed and remanded, with directions.

(No. 13831.-Judgment reversed.)

THE NATIONAL CITY BANK OF CHICAGO, Appellee, vs. THE NATIONAL BANK OF THE REPUBLIC OF CHICAGO, Appellant.

Opinion filed October 22, 1921-Rehearing denied Dec. 7, 1921.

1. BILLS AND NOTES-construction of Negotiable Instruments act. In construing the Negotiable Instruments act the language should be interpreted so as to give effect to the beneficent design of the legislature in passing the act for the promotion of harmony in the law regarding negotiable paper, and the court should take the act as it is written and give the words their natural and common meaning and should not attempt to harmonize the provisions with earlier statutes or decisions which are in conflict with the language of the act.

2. SAME-effect of acceptance of draft by drawee. Under section 62 of the Negotiable Instruments act, a drawce, by a general acceptance of a draft, binds itself to pay the draft to the order of the payce named therein and the drawer is discharged from liability, and even though the name originally written in the draft as payee is erased and another name substituted, by accepting the draft so altered the acceptor admits the existence of the payee whose name is substituted for the original payee and the capacity of said second payee to indorse the draft. (State Bank v. MidCity Trust and Savings Bank, 295 Ill. 599, distinguished.)

3. SAME when a bank takes draft as a holder in due course. Even though the name of the payee in a draft has been erased and another name substituted thereon, a bank which takes the draft in good faith and for value and without notice of any infirmity in the instrument or defect in the title of the person negotiating it becomes a holder in due course, where the draft is complete and regular on its face and has been duly accepted by the drawee bank.

APPEAL from the First Branch Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. A. D. MORGAN, Judge, presiding.

MOSES, ROSENTHAL & KENNEDY, (HAMILTON MOSES, and HENRY JACKSON DARBY, of counsel,) for appellant.

G. L. WIRE, for appellee.

Mr. JUSTICE THOMPSON delivered the opinion of the

court:

On January 4, 1915, the Jackes-Evans Manufacturing Company of St. Louis purchased a draft for $629.80 from the Broadway Savings Trust Company of St. Louis drawn on the National City Bank of Chicago and payable to the order of the American Sheet and Tin Plate Company of Pittsburgh. On the same day the St. Louis company enclosed the draft in a letter addressed to the Pittsburgh company and deposited the letter in a mail-box. Andrew H. Manning rifled this mail-box and stole the draft. He substituted his name for the name of the American Sheet and Tin Plate Company. The alteration of the draft was done with such skill that it could not be detected by inspection. January 9 Manning appeared at Barnett Bros. jewelry store, in Chicago, and selected and agreed to purchase certain diamonds for $600. In payment of the purchase price Manning tendered to P. Barnett the altered draft for $629.80. Manning, in the presence of Barnett, endorsed the draft in blank, and Barnett, with the consent of Manning, took the draft to the drawee, the National City Bank of Chicago, and personally presented it to that bank for acceptance. The bank accepted the draft by writing across the face of the draft these words and figures: "Accepted, payable through Chicago clearing house 55055, Jan. 9, '15-The National City Bank of Chicago, per G. D. Grim, Paying Teller." The drawee also entered in its records the following notation:

"THE NATIONAL CITY BANK OF CHICAGO. Certification Debit.

$629.80

"As shown by teller's stamp we certify & charge to the account of Broadway Sav. Trust Co. St. Louis, Makers number or date 5584 Order of Andrew H. Manning.

No. 55055

Asst payer Jan 9, 1915

"Customer will please call at bank & exchange this slip for check described above.

N. C. B. 1/9/15"

The draft, with the acceptance written thereon, was returned to Barnett, who returned to his place of business. Barnett delivered the diamonds, of the fair retail market value of $600, and $29.80 in money, and retained therefor, with the consent of Manning, the draft so endorsed and accepted. Thereafter Barnett endorsed the draft to the order of the National Bank of the Republic, and January II, 1915, deposited the draft to the credit of his account with said bank. January 12, 1915, the National City Bank, the drawee, through the Chicago clearing house, paid the National Bank of the Republic the sum of $629.80 in payment of the draft. February 4, 1915, the National City Bank returned to its customer, the Broadway Savings Trust Company, this draft along with other canceled paper for January. The draft was received in St. Louis the following day, and the St. Louis bank at once notified its Chicago correspondent, the drawee, that the draft had been altered by changing the name of the payee, and asked that its account be credited with the amount of the draft. The drawee in turn notified the National Bank of the Republic of the alteration and asked for reimbursement, which was refused. The drawee voluntarily credited the account of the St. Louis bank with the amount of the draft and brought suit in the circuit court of Cook county against the National Bank of the Republic to recover the amount paid on this draft. Judgment was rendered in favor of the drawee, and that judgment was affirmed, on appeal, by the Appellate Court for the First District. That court granted a certificate of importance, and this appeal followed.

In its last analysis the question presented for decision is the liability of the acceptor of a negotiable instrument under section 62 of the Negotiable Instruments law, which provides: "The acceptor by accepting the instrument engages that he will pay it according to the tenor of his acceptance, and admits: I. The existence of the drawer, the genuineness of his signature, and his capacity and au