the person to whom it was issued; sixth, the | tificate the proof must satisfy you that the percounty from which it was issued. The trans- son who made said transfer was the same man fer, in describing the certificate, states it as to whom said certificate was issued, and unhaving been issued to J. H. Chism; makes no less it does so satisfy you the defendant canmention of day or number. It says, "No. not defeat the plaintiffs' recovery of two thirds -," and that the certificate was "dated No- of the land sued for; and on this issue as to the vember, 1838," giving no day of the month, person who made the transfer being the same and it is signed J. H. Chisholm." The fail-person to whom said certificate No. 990 [15 ure in the transfer to give either the number issued, the burden of proof is on the defendant; of the certificate or the day of the month on and if the proof does not so satisfy you, the which it was issued, as also the mention of the plaintiffs are entitled to recover the whole land name of J. H. Chism in its body, coupled with unless defeated by the defendant's plea of five the signature "J. H. Chisholm," were in them- years' limitation as to Mrs. Van Horn's oneselves claimed to be, as they undoubtedly third interest therein." were, circumstances tending to show that the party who wrote the transfer could not have been in possession of the certificate.

5th. The court refused to give, at defendant's request, the following charge:

"It is shown by the evidence that the certifi

is now there, and if the certificate or paper about which plaintiffs testify was burned in Dallas or elsewhere, then the paper testified about by them is not this certificate."

This charge was also correctly refused. It asked the court to instruct upon a purely hy. pothetical statement of fact and was calculated to confuse, and was, moreover, fully covered by the charges actually given.

6th. The court refused to give the following requested charge:

It was contended that this inference was furcate has been in the land office since 1857, and ther strengthened by the public records. Thus, the return to the General Land Office by the county clerk gave the number 990, correspond ing with that of the certificate itself, and gave the month as November, 1838, without giving any day of the month. The report of the Traveling Board described the certificate by a wrong number, 701, instead of 990; it gave the date thereof as November 1, 1838, and the name of the grantee as J. H. Chisholm. The fact is that the transfer seemed to have been drawn with reference to these public records, 14] and, in order not to conflict with either of them, it uses the name J. H. Chism in the body and the name J. H. Chisholm in the the signature, and it omits the number of the certificate altogether, and mentions no day of the month, the day being also omitted in one of the records. Under this condition of the proof, the court was obviously correct in not taking the question of fact from the consideration of the jury.

4th. The court refused to charge as follows at the request of the defendant:

The transfer introduced by the defendant to the certificate is not a forgery in law, whether signed by the person who was the owner of said certificate acquired from the person to whom it issued or by the person to whom it issued, and you are instructed that if in this case you should find for the plaintiffs, in any event you will find for the defendant one third of the land as against M. S. Van Horn, and for the other plaintiffs only two thirds of the land."

This charge was correctly refused. There was no evidence tending to show that the "The certificate was issued to a person transfer was made by any person claiming to whose name was spelled therein Chism. The have acquired the certificate from Chism; on transfer in evidence shows that the person the contrary, the testimony of Baker and all who transferred the same spelled his name the testimony in the case on both sides presentChisholm. Now, if the person who so trans-ed the issue of whether Chism, the person to ferred the certificate was the same to whom it issued, it is not material in what form he signed it, you will find for the defendant; and in determining whether he was the same person you may consider the fact, if a fact, that the person who sold to Baker was a soldier, the date of his certificate, the whereabouts of J. H. Chism about the time, and the evidence introduced by plaintiffs that J. H. Chism was in Texas about the time of the transfer."

This charge was also correctly refused. In some particulars it assumed the existence of facts not proved by asking the court to state to the jury that Chism was in Texas about the time of the transfer, December 2, 1838, whilst there was evidence that he returned to Kentucky in November, 1838. Besides, we think the charge of the court, as actually given to the jury, furnished all that the defendant was entitled to on this point. It was as follows:

"The defendants have offered what purports to be a transfer of the certificate granted J. H. Chism to one E. M. Robinson, which transfer is signed J. H. Chisholm, and in order for this transfer to convey title to said cer

whom the certificate had been issued, signed the transfer. There was no proof in any way to indicate that Chism had transferred to some one else his certificate, and that this other person had signed J. H. Chisholm in the alleged transfer to Baker. That portion of the charge which asked that the jury be instructed that if the transfer was signed by Chism, to whom the certificate issued, it was not a forgery, was fully covered by the charge given.

*th. The court gave the following [16 charge, and exception was taken thereto:

"If you believe from the evidence that W. R. Baker falsely made or caused or procured to be made falsely, or in any way aided, assisted, advised, or encouraged the false making of, the transfer to E. M. Robinson, signed J. H. Chisholm, and purporting to convey the land certificate 990, issued to J. H. Chism, with intent to make valuable thing or money thereby, or with intent to set up a claim or title or to aid or assist any one else in setting up a claim or title to the land in controversy, or in any way to injure, obtain the advantage of, or prejudice the rights or interest of the true owner of the land, then the said transfer

is a forgery, and you will find for plaintiffs | signed his own name, "J. H. Chisholm," his for the land in controversy." signature was not a forgery under the law then existing in Texas.

There was, as we have already said, no evidence tending to show a transfer by J. H. Chism, the grantee, to another person, and an assignment by such person to Baker. The entire proof on both sides was addressed to the ques. tion of whether the certificate was in the possession of Chism at the time that Baker claimed that it was delivered to him, and so remained thereafter. The whole case turned upon this question, and the issue of whether the transfer was a forgery or not in a large *measure de-[18 pended on the conclusions formed by the jury as to this fact. But the claim that if the name of J. H. Chisholm was signed by one bearing that name, the writing of this signature could not under any circumstances constitute a forgerv, is unsound. It is asserted by the plaintiff in error that the law of Texas as to forgery prior to 1876 was as follows:

It is claimed that this charge was erroneous because it submitted issues not raised by the evidence, and was calculated to impress the jury with the belief that there was some proof of such action on the part of Baker, and thus prejudice the defendant's case. But this objection takes it for granted that there was nothing in the testimony indicating that Baker made the false indorsement, if one was made. We have already stated the tendency of the testimony on both sides, and that the very na ture of the direct, as well as the circumstantial, evidence necessarily raised the question of forgery vel non, and of Baker's connection with the forgery, if there was any. Nor is this charge amenable to the criticism that it assumes the fact that the transfer was false. It is true that the court used the words "in any way aided, assisted, advised, or encouraged the false making of the transfer to E. M. Robinson, signed J. H. Chisholm." But it is mani- He is guilty of forgery who, without lawfest from the connection in which these words ful authority, and with intent to injure and were used, and from the entire charge given, defraud, shall make a false instrument in that the court left to the jury the question of writing, purporting to be the act of another, whether the transfer was forged or not, within such manner that the false instrument so out expressing any opinion thereon. Indeed, it was expressly charged that on the issue of the forgery the burden of proof was on the plaintiffs.

to:

8th. The following charge was also objected

"If you believe from the evidence that a man of the name of J. H. Chisholm or of any 17]other name, who was not the identical party to whom the certificate No. 990 issued to J. H. Chism, did falsely make and transfer to E. M. Robinson, signed J. H. Chisholm, with the intent to make money or other valuable thing thereby, or with intent to set up a claim or title, or aid or assist any one else in setting up a claim or title to the land in controversy, or in any way to injure, obtain the advantage of, or prejudice the rights or interest of the true owners of the land, or with any fraudulent intent whatever, then said instrument you will find to be a forgery, and you will bring a ver dict for plaintiffs for the land in controversy. If you believe from the evidence that J. H. Chisholm or any other person not being the identical person to whom certificate No. 990, in the name of J. H. Chism, issued, did falsely counterfeit the original grantee in making the transfer to E. M. Robinson, signed J. H. Chisholm, with the intent to make money or other valuable thing thereby, or with the intent to set up a claim or title, or aid or assist any one else in setting up a claim or title, to the land in controversy, or to cast a cloud upon the title, or in any way injure, obtain the advantage of, or prejudice the rights of the true owner of the land, or with any fraudulent intent whatever, then you will find said instrument a forgery, and will find for plaintiffs for the land in controversy."

This charge, it is said, is erroneous (a) because it presents an issue not raised by the evidence; and (b) because it excludes the hypoth. esis that a person to whom J. H. Chism may have transferred the certificate by delivery was the person who signed the transfer "J. H. Chisholm;" and (c) because if such person

made would (if the same be true) have created, increased, diminished, discharged, or defeated any pecuniary obligation, or would have transferred or in any manner have affected any property whatever." Art. 2093, Paschal's Digest of Laws.

Clearly, if one whose name was J. H. Chisholm took a certificate issued to J. H. Chism, and, falsely personating J. H. Chism, signed his name as J. H. Chisholm, intending thereby to counterfeit the signature of J. H. Chism, and by reason of the fact that the names were idem sonans, to produce the impression that the name signed was that of J. H. Chism, this act would have been a forgery under this statute. The case of Com. v. Baldwin, 11 Gray, 197, 71 Am. Dec. 703, cited to the contrary, sustains this view.

9th. The ninth assignment is covered by what we have already said.

10th. The court gave the following charge, which was objected to:

"The defendants have offered what purports to be a transfer of the certificate granted J. H. Chism to one E. M. Robinson, which transfer is signed J. H. Chisholm,' and in order for this transfer to convey title to said certificate the proof must satisfy you that the person who made said transfer was the same man to whom said certificate was issued, and unless it does so satisfy you the defendant cannot defeat the plaintiffs' recovery of two thirds of the lands sued for; and on this issue, as to the person who made the said transfer being the same person to whom said certificate No. 990 issued, the burden of proof is on the defendant; and if the proof does not so *sat [19 isfy you, the plaintiffs are entitled to recover the whole land unless defeated by the defendant's plea of five years' statutes of limitation as to Mrs. Van Horn's one-third interest therein."

It is contended that the word "satisfy" exacted a greater degree of proof than the law required, and we are referred to cases in Texas which, it is claimed, hold that an instruction unless the party on whom the burden of proof

executrix of Francis H. Edwards, deceased, | resigned as a director, and True N. Blackman and Lucinda N. Rockwell, executrix of C. N. Rockwell, deceased, all citizens of the state of Illinois. A demurrer to this bill having been sustained, the complainant brought an amended bill against the same defendants on August 14, 1888, which began with averments of the following facts:

On December 12, 1877, the St. Louis & Sandoval Coal & Mining Company was duly incorporated and organized under the laws of the state of Illinois. The purpose of its incorporation was the mining and selling of coal, and the term of its existence was to be ninetynine years. Its principal office was at the town of Sandoval, Marion county, Illinois, and near that town it was to carry on its mining operations. The capital stock of the company was fixed at $50,000, divided into 500 shares of $100 each. The directors were five 22]*in number, namely: Isaac Main, John B. Mears, Henry Wellhoener, James Sheals, and Ozias Townsend, the complainant. Among others, the testators of the said defendants Margaret E. Edwards and Lucinda N. Rock well, and the defendants Isaac Main, Lambert Noland, Charles Reinhardt, and Jacob Lichty, were subscribers to the stock. All the said directors were stockholders. The complain ant's subscription to the stock was 391 shares, of which he was to hold 380 shares as trustee for the company, and to sell the same for its benefit. The complainant attended to the in corporation and organization of the company, secured to himself as its trustee 436 coal min ing rights, and purchased with his own money four acres of land to be used for mining purposes, and through which, by means of a shaft and drifts, the coal underlying the lands in respect of which he had secured the mining rights could be reached and utilized. On January 9, 1878, he conveyed the said four acres of land to the company in fee simple. In the work thus done by him in the interests of the company he was continually engaged from July 1, 1877, to January 1, 1878, and besides paying $200 for the land, he expended in connection with the incorporation of the company and the securing of the mining rights the sum of $200. After the organization of the company a regular meeting of its board of directors was held on December 20, 1877, in the city of St. Louis, at which all the members were present, and at which meeting the salary of the complainant as president and ex officio superintendent of the company was fixed at $150 per month, to commence on January 1, 1878, and provision made that all his necessary expenses of travel in the interests of the company should be repaid to him. In such action of the directors the complainant did not participate. The complainant at once entered upon the duties of his said office, and continued faithfully to perform them until the dissolution of the company on January 25, 1886. In March, 1878, a duly called meeting of the directors was held in East St. Louis, Illinois, for the purpose, among others, of auditing an account which the complainant had against the company for securing for it the said mining rights, and for money expended by him as 23] *aforesaid. All the directors were present at this meeting except Isaac Main, James Sheals

was duly chosen a director to fill his place, and participated in the proceedings had. At this meeting the complainant presented to the board his account in the sum of $12,050 for compensation for his services and for money expended as before stated, and then retired from the board and took no part in its deliberations. Thereupon, Mr. Mears, one of the directors, offered a resolution, which stated in the preamble thereof that the complainant had devoted a large share of his time for the past year to the organization of the company, and had freely expended his money in promoting its interests, in securing for it large and very valuable mining privileges, and in travel, for all of which he had received no compensation; and provided as follows:

"Be it resolved, 1st, That in full satisfaction for such services and expenditures and for his attention to the business of this company up to and prior to the 1st day of January, 1878, the said Ozias Townsend is hereby allowed and this company binds itself to pay to him the sum of ten thousand dollars, the same to be receipted for by him as in full compensation for said services as aforesaid; and if he shall wish to be indorsed upon the stock held by him as a member of the association as so much paid on account of calls made and to be made on such of the stock as may be held or indicated by him, and such indorsement by the secretary and treasurer of this company shall be held and accounted for as a receipt in full from him for calls on said stocks to the amount of ten thousand dollars as aforesaid.

"Be it resolved, 2d, The secretary and treasurer is hereby authorized and directed to indorse upon the stock held by said Townsend, as he shall indicate, payments of calls on the same to the extent aforesaid, and, in the event of such indorsement failing, then he shall have a valid claim against this company to that extent for such services hereby acknowledged to be rendered, but not otherwise."

This resolution the members of the board who were present adopted unanimously. The complainant accepted this settlement of [24 his claim, and the resolution was duly signed by each member of the board present, being a majority of all the directors.

After presenting the averments, of which the foregoing statement is the substance, and averring that the amount so allowed him was fair and reasonable compensation for the time and labor which he had devoted to the interests of the company, the complainant alleged that the defendant Main, with intent to defraud the complainant and to prevent his collecting the said amount allowed him by the board of directors, and the said salary and traveling expenses, combined and confederated with the other stockholders residing in Marion county, Illinois, to wreck the corporation by the process of the courts, and to buy in all its assets at a sum greatly below their real value, so that ostensibly the assets would all be gone when the complainant should take steps to collect the said debts; that with this end in view, on June 27, 1878, a bill in equity was filed in the circuit court of Marion county, Illinois, by Isaac Main, Frank Seymour, Francis H. Edwards, Lambert Noland, Charles Reinhart,

Jacob Lichty, C. N. Rockwell, and Henry | to continue its business. The complainant Wellhoener (the latter of whom, as the com showed that the prayers of that bill were that plainant averred, withdrew from the suit upon the affairs of the company might be wound up, learning the animus thereof) against the said *a receiver be appointed, the property of [26 company, Ozias Townsend, of St. Louis, Mis the company be sold, the proceeds of the sale souri (the present complainant), and all the thereof be applied to the payment of the comother subscribers to the capital stock who re- pany's debts, and that if the same should be sided out of the state of Illinois. insufficient to pay the debts, then the stockholders might be assessed to pay the balance, and that the corporation might be dissolved.

The complainant averred that, as a defendant in the said bill so described by him, no summons was served upon him either in his individual capacity or as president of the company, and that neither he nor the company appeared, but that summons was served upon said Isaac Main as a director; that, at the August term, 1878, of the said circuit court of Marion county a decree pro confesso against the defendants in the aforesaid bill was entered, finding the facts alleged in that bill to be true, and granting the relief therein prayed for; that the court appointed a receiver of the company's property, and directed him to sell the same; that on September 28, 1878, the receiver sold at public sale all the property belonging to the company to the said Isaac Main, who was the only bidder, for the sum of $200, and executed and delivered to him a properly acknowledged deed for the same; that the sale was reported to the court, and that the court, on February 11, 1879, confirmed the same; that at that time the property thus sold was worth $20,000; that on March 24, 1881, an appeal was taken to the supreme court of the state, and was there reversed on the ground that the service upon Main as a director of the corporation when he was one the plaintiffs in the case was not legal service upon the corporation, and that the circuit court of Marion county had had no jurisdiction over it.

The complainant showed that the said bill alleged, among other things, that on January 10, 1878, the company had entered into a con tract with the said Frank Seymour (a defendant in the present suit) to sink a shaft on the said land down to the coal thereunder; that Seymour, in pursuance of that contract, had sunk a shaft to the depth of about 114 feet, when he stopped work for the reason that the company had failed to perform its part of the contract; that the corporation was indebted to Seymour on account of the said work in the sum of about $1700, and owed other persons about $1300 (not mentioning, however, the company's said alleged indebtedness to the complainant Townsend) that the whole 25] cost of sinking the shaft down to the coal would be about $10,800; that on February 14, 1878, an assessment of 5 per cent on the capital stock had been made; that the said plaintiffs, Isaac Main, Lambert Noland, Jacob Lichty, C. N. Rockwell, Charles Reinhardt, Francis H. Edwards, and Henry Wellhoener, paid their assessments, but that all the other stockholders of the company failed to pay; that, by reason of such failure, the stock of all the other stockholders except three (who do not appear in the present suit) was, on April 29, 1878, forfeited, but that the holders thereof were still liable for their indebtedness to the company; that some time between March 3 and April 6 (the year not being given) the directors of the company, with the excep tion of Isaac Main, fraudulently and without The complainant further averred that the consideration acknowledged, by resolution, an cause having been remanded to the said court, indebtedness of $10,000 to the said Ozias he and the other defendants therein filed Townsend for services claimed to have been their answer to the bill, denying that the board rendered and money expended for the com- of directors of the company wrongfully acpany; that such services were never rendered, knowledged an indebtedness to him; that the and that no money was expended by Town company in its answer to the said bill denied send for which the company was liable; that, that it fraudulently acknowledged an indebtaccording to the provision of the said resolu-edness to him or issued paid-up stock to him or tion, that if Townsend so desired the said $10,000 should be indorsed upon the stock held by him as a member of the company, he had issued, of paid up stock, to his wife $5000, to George W. Wharton $4000, and to He showed that the case was heard in that True N. Blackman $1000, which stock those court in July, 1883, upon bill, answers, and persons pretended to hold as paid-up stock, evidence, and that the court found that the but for which they had paid nothing to the company had, on March 10, 1878, ceased to company; that the said mining rights were prosecute the work for which it was organized, conveyed to Townsend in trust for the com- leaving debts unpaid to the said Frank Seypany, with a condition that a shaft should be mour and others (but making no finding with sunk upon the land within two years from relation to the complainant's claim); that the November 6, 1877; that those rights were business of the company had been mismanvaluable, provided the shaft should be sunk aged by its officers; that the company was inwithin the said time, but that in the then un-solvent and that it would be useless for it to finished condition of the shaft the mining rights and the land were not worth enough to pay the company's debts, that such property and the buildings upon the land were all the effects the company owned; that nearly all the stockholders of the company were in solvent; and that in the then present condition of the company it would be useless to attempt

to any one else without consideration, and that such allegations were the only ones in the said bill and answers in regard to the [27 company's indebtedness to him.

resume business, and decreed that the corporation be dissolved and that the appointment of the receiver be confirmed, and ordered the receiver to make a further report.

It was further averred by the complainant that in pursuance of the fraudulent scheme to prevent the collection of his claim against the company, Isaac Main and some of the plain