he had remained a defendant, it would have been of even the slightest advantage to them, or that they would, in that event, have pursued a course other than they did. In this state of the case, to reverse the decree solely would be sheer technicality. cial master, were incompetent evidence, as is claimed by appellants, then the action of the court, under the circumstances of this case, was of no moment, and furnishes no just cause for reversal. In our view of this record, the other evidence therein fully sustains the de-on account of his dismissal from the cause cree of the court. If the evidence objected to was incompetent, we must presume the circuit court, on the final hearing, rejected it, and decided the case upon the legal testimony. Were this an action at law, the rulings of the court in admitting evidence would be subject to review; but, this being a chancery cause, a different rule prevails, and the inquiry here is whether or not the competent evidence in the record, taken in connection with the pleadings, sustains the decree that was entered. In the bill that was filed by appellants, John McNab was made a defendant, and he appeared and filed a disclaimer, in which he fully and absolutely disclaimed "all manner of right, title, and interest whatever, in and to, and all and all manner of claims or liens upon, the real estate, or any part or parcel thereof, described in said bill of complaint,' and denied all and all manner of unlawful combinations and confederacies, etc. There was also a stipulation filed, signed by Camp'bell and other defendants, releasing said McNab from liability in the action, or on account of any result thereof. Thereupon the court ordered that the bill of complaint stand dismissed as to McNab. After the suit had been heard, and the chancellor had announced his decision, appellants asked leave to file an amendment to their bill offering to redeem. This privilege the court denied. It was a matter resting in the sound discretion of the court whether or not an amendment should be allowed at the time the application was made, and we are unable to say that discretion was abused. We find no substantial error in the record, and the decree is affirmed. 2. A sale and delivery by an insolvent corporation of its property to one of its directors in satisfaction of a pre-existing debt, though voidable in equity, does not render the property subject to levy at the suit of the corporation's creditors. 3. Such a sale, though made without an order of the board of directors, is ratified by the company's receiving and canceling the notes in payment of which it was made. Appeal from appellate court, second dis Weigley, Bulkley & Gray, for appellants. Bennett & Green, for appellee. The proper practice would have been to have retained McNab as a defendant. We think, however, that, under the circumstances of the case as disclosed by the record, there was no manifest or reversible error in the ac-trict. tion of the court in dismissing him out of the case. He had no interest in the subject-matter of the suit. The bill waived the oath to his answer, and it would not have been evi- CRAIG, J. This was an action of trespass, dence, as an admission or otherwise, against brought by Joseph T. Miller in the circuit his co-defendants. No discovery was sought court of Whiteside county against Thomas S. by the bill, and he was not called upon to ac- Beach and George C. Keefer. The declaracount. No relief of any other character was tion contained four counts. In the first and asked against him. No objection to his dis- second it is alleged that defendants, with missal from the suit was interposed either at force and arms, broke and entered two certhe time the order was made or during the tain rooms in a certain warehouse known as term, or at any time thereafter. It is sug- "the warehouse of the Rock River Packing gested that the bill might have been amend- Company," which said rooms were then and ed at some subsequent day, and allegations there in the possession of plaintiff. The third made against him such as to require his being and fourth counts are trespass de bonis asa party defendant; but no such amendments portatis for taking and carrying away 94,612 were made or proposed. The order of dis- tomato cans, 3,516 sheets of tin, and a few missal was entered February 18, 1882, and other articles alleged to belong to the plainthe final hearing was not had until April 8, tiff. The defendant pleaded the general is1884,--more than two years thereafter. No sue, and several special pleas, on which they doubt a suggestion to the court, made during averred that on the 23d day of October, 1885, the intervening period, of a desire to have E. W. Blatchford & Co. recovered a judgment him brought back and retained as a defend- against the Rock River Packing Company, in ant, would have had the effect to restore him the circuit court of Whiteside county, for as a defendant in the record; but no such $1,415.40; that an execution issued on the move was made, and appellants were appar- judgment, which was placed in the hands of ently content as matters stood. There is defendants, as sheriff and deputy-sheriff, to nothing in the record to indicate or raise a collect. It is also alleged that the goods presumption that McNab is in any way legal-named in the declaration belonged to the Rock ly liable to respond to appellants, or that, if River Packing Company, and as such they sold the produce of their manufacture to a certain party in Chicago. This offered evidence, and other offered evidence of a like import, was ruled out by the court, and the decision is relied upon as error. We are of the opinion that the court erred in excluding this evidence from the jury. If, at the time this sale was made, the corporation was insolvent, or if, at or about the time when the sale was made, large mortgages were placed on all of the property owned by the corporation, so that it had no property left liable to execution, these were facts proper for the consideration of the jury on the question whether the sale to Miller was fraudulent, or made in good faith. What evidence was a question for the jury. We only determine that it was competent evidence for the consideration of the jury on the issue presented by the pleadings. Where the good faith of a sale of property is attacked, it is always competent to prove that the vendor was embarrassed or insolvent. Geisendorff v. Eagles, 106 Ind. 38, 5 N. E. Rep. 743; Bump, Fraud. Conv. 591. were levied upon by defendants under and by | bank, which debt was secured by three of the virtue of the execution, and sold in satisfac-directors of the company; that between the tion thereof. Issue was formed on the pleas, 16th and 23d days of October the corporation and in a trial the plaintiff recovered a judgment for $1,996.41, which was affirmed in the appellate court. 23 Ill. App. 151. In order to get a correct understanding of the questions presented by the record a brief statement of the facts seems to be required. The Rock River Packing Company is a corporation organized in 1881, with a capital stock of $16,000, the incorporators being James A. Ingersoll, Edward H. Sears, William N. Harrison, and Joseph T. Miller, the plaintiff here. The corporation was formed for "packing, pickling, canning, and bottling of meats, vegetables, and fruits, and dealing in the same," and was located at Sterling, where it provided itself with a factory and warehouse, in which its business was transacted. During the spring and sum-weight should be given to this character of mer of 1885, the corporation borrowed of Miller, who was then a director, money to be used in its business amounting to the sum of $2,000. To secure Miller for the money loaned, the corporation executed and delivered to him its three judgment notes; one dated May 30, 1885, amount $500; one July 6, 1885, amount $500; and one for $1,000 on August 17, 1885. On the 16th day of October, 1885, these notes being due and unpaid, the presi- But appellants rely upon another ground dent and secretary of the corporation sold to defeat the sale,-that it was void for the Miller 80,000 cans, and a small quantity of reason that Miller was at the time a director tin, for $1,877, to be applied as a payment on of the corporation, and could not contract the notes. On the same day Ingersoll, presi- with it. This proposition is discussed in the dent and secretary of the corporation, leased argument under several distinct heads, and Miller two small rooms in the north end of various authorities have been cited in its the company's warehouse. On the morning support. There is a conflict of authority on of the 17th, all property belonging to the com- this question; but, on the general proposipany was removed from the two rooms, and tion whether a director may deal with the the possession was turned over to Miller. corporation, we think the weight of authoriMiller placed the goods purchased in the ty is that he may. This court so held in rooms, and nailed up the doors communicat- Merrick v. Coal Co., 61 Ill. 479, and in Harts ing with other parts of the warehouse, and v. Brown, 77 Ill. 226. The supreme court of placed new locks on the other doors. On the the United States hold the same doctrine. 17th day of October, 1885, the corporation In Oil Co. v. Marbury, 91 U. S. 587, it is delivered to E. W. Blatchford & Co. a judg. said: "It is very true that, as a stockholder, ment note for $1,415.40, upon which judg-in making a contract of any kind with the ment was entered. On the 23d day of Octo-corporation of which he is a member, is in ber an execution issued on the judgment, and some sense dealing with a creature of which on the 24th defendant Beach, as sheriff, and he is a part, and holds a common interest defendant Keefer, as deputy-sheriff, levied on with the other stockholders, who, with him, the goods which had been purchased by Mil-constitute the whole of that artificial entity, ler. In the circuit court it was contended he is properly held to a larger measure of that the sale of the goods from the Rock River candor and good faith than if he were not a Packing Company to Miller was fraudulent stockholder. So, when the lender is a dias against creditors, and being fraudulent the rector charged, with others, with the control goods were liable to be seized and sold by and management of the affairs of the corpothe sheriff on the execution in favor of Blatch- ration, representing in this regard the aggreford & Co. against the Rock River Packing gated interest of all the stockholders, his obCompany. For the purpose of showing the ligation, if he becomes a party to a contract sale fraudulent the defendants offered to with the company, to candor and fair dealprove that the Rock River Packing Compa-ing, is increased in the precise degree that ny was, at the time of the sale, insolvent; his representative character has given him that on the 16th day of October, 1885, the power and control derived from the confidence company executed a mortgage on its real es- reposed in him by the stockholders who aptate for $7,000 to three of its directors; that pointed him their agent." See, also, the folthe company turned over $1,000 of its ac-lowing authorities, where the same doctrine counts to the Sterling National Bank, to ap- is announced: Ang. & A. Corp. § 233; ply on a debt due from the company to the Whitwell v. Warner, 20 Vt. 425; Smith v. v.22N.E.no.17-30 Lansing, 22 N. Y. 526; City of St. Louis v. Alexander, 23 Mo. 483. While a corporation remains solvent, we perceive no reason why a director, with the knowledge of the stockholders, may not deal with the corporation, loan it money, take security, or buy property of it, in like manner as a stranger; but whether a director in an insolvent corporation may purchase the assets in payment of a debt, and thus secure a preference over other creditors, presents a different question. So long as a corporation remains solvent, its directors are agents or trustees for the shareholders. They owe no duties or obligations to others. But the moment a corporation becomes insolvent its directors occupy a different relation. The assets of the corporation must then be regarded as a trust fund for the payment of all its creditors, and the directors occupy the position of trustees, and, a fiduciary relation then existing, they may with propriety be prohibited from purchasing the trust property. In Richards v. Insurance Co., 43 N. H. 263, on a bill of equity filed by creditors, it was held that directors and managers of insolvent corporations are trustees of the funds for the creditors, and are bound to apply them pro rata, and cannot use them to exonerate themselves, to the injury of other creditors. It is there said, "Every agent and trustee who has claims of his own must be regarded as agent for himself and others, and bound to give his diligence and care equally to all the claims in his hands, and consequently to apply all moneys paid to him without an appropriation by the debtor to the payment of all claims in his care, whether of his own or others, in just proportion to their amounts."" In Morawetz on Corporations, (1st Ed.) § 579, it is said: "It is the duty of the directors and other agents of an insolvent corporation to preserve its assets for the benefit of creditors. The legal ownership of the assets is not altered by insolvency, and the regThe relation that directors occupy to the ular agents of the company retain the same property of a corporation is well stated in powers of management with which they were Ogden v. Murray, 39 N. Y. 202, as follows: originally invested. But upon the insolven"The appellants and their associates were cy of the corporation the equitable lien of not in a situation permitting them to secure creditors attaches upon all of the company to themselves a personal advantage in the assets; and the directors, who originally stood matter. The stockholders and creditors were in a fiduciary relation to the company's mementitled, not only to their vote in the board, bers, become placed in a fiduciary relation to but to their influence and argument in the its creditors. Accordingly it has been held discussion which led to the passage of the * that they cannot give away the resolution in pursuance of which they took company's property gratuitously, or sell it at title as trustees. This brings the case with- a sacrifice in the interest of others, even with in the rule which rests in the soundest wis- the consent of the stockholders; and, if themdom, and is sustained by the best considera- selves creditors, they cannot secure any adtion of the infirmities of our human nat- vantage or preference in the payment of their ure, and called for by the only safe protection claims at the expense of other creditors." of the interests of cestuis que trust or beneficiaries, viz., that trustees, and persons standing in similar fiduciary relations, shall not be permitted to exercise their powers, and manage or appropriate the property of which they have control, for their own profit or emolument, or, as it has been expressed, shall not take advantage of their situation to obtain any personal benefit to themselves at the expense of their cestuis que trust."" See, also, Drury v. Cross, 7 Wall. 299. In Curran v. State, 15 How. 307, Mr. Justice CURTIS, delivering the opinion of the court, speaking of an insolvent banking corporation, says: "The assets of such a corporation are a fund for the payment of its debts. If they are held by the corporation itseif, and so invested as to be subject to legal process, they may be levied on by such process. If they have been distributed among stockholders, or gone into the hands of others than bona fide creditors or purchasers, leaving debts of the corporation unpaid, such holders take the property charged with the trust in favor of the creditors, which a court of equity will enforce, and compel the application of the property to the satisfaction of their debts. This has been often decided, and rests upon plain principles." In Haywood v. Lumber Co., 64 Wis. 639, 26 N. W. Rep. 184, where an action was brought to foreclose a mortgage, given by the company to its directors to secure an indebtedness due from the company to them, on the hearing it appeared that at the time the mortgage was executed the company was insolvent, and it was insisted as a defense that the mortgage was invalid. The court, in deciding the case, said: "The main question is of the validity of the mortgage in suit. There was abundant evidence to justify the finding of the circuit court that at the time it was given the company was insolvent. In such case, the authorities seem to be uniform that the directors and officers of the corporation are trustees of the creditors, and must manage its property and assets with strict regard to their interests; and, if they are themselves creditors while the insolvent corporation is under their management, they cannot secure to themselves any preference or advantage over other creditors. The directors are, then, trustees of all the property of the corporation, for all of its creditors, and an equal distribution must be made, and no preference to any one of the creditors, and much less to the directors or trustees, as such. See, also, Port v. Russell, 36 Ind. 60, and Lippincott v. Carriage Co., 25 Fed. Rep. 577. One other question remains to be answered. The sale was made to Miller without an order of the board of directors of the corporation, and upon this ground it is claimed to be invalid. Conceding that the sale was irregular, we think it might be ratified by the corporation; and the fact that it took up the notes held by Miller and canceled them and retained them in its possession may be regarded as a ratification of the sale. As to the lease of that part of the building where the goods were stored, whether it was strictly valid or invalid was of no moment. The only purpose of the lease was to give Miller possession of that part of the building, and there was ample evidence to establish possession independent of the lease. For the error indicated, the judgments of the appellate and circuit courts will be reversed, and the cause remanded. BAKER, J., having passed upon this case in the appellate court, took no part in its consideration here. (129 III. 557) (Supreme Court of Illinois. Oct. 31, 1889.) LIFE INSURANCE-EVIDENCE-CORONER'S INQUEST. The language used in Merrick v. Coal Co., | tion, or such as might invoke the aid of that supra, is broad enough to authorize a director court. of an insolvent corporation to deal with the corporation. But the power of a director to purchase property of or deal with an insolvent corporation did not arise in that case, and what was said was mere obiter dictum. There the Peru Coal Company, a corporation, executed certain notes payable to the Michigan Car Company, and also drew certain drafts in favor of the company. These notes and drafts were purchased by Merrick, who was an officer of the corporation, with his own funds, and he brought an action on the notes and drafts, and the only question was whether he was entitled to recover, and the court properly held he might recover upon the notes and drafts. Harts v. Brown, 77 Ill. 226, is another case where expressions may be found similar to those used in the Merrick Case, which were not justified by the questions presented for decision. That was a bill brought by stockholders to vacate a sale under a trust-deed given by the company to secure the payment of certain bonds issued by the company, and sold to one of the directors. The question arose whether the company had the power to execute a trustdeed, and whether it could loan money of a director. It was held that the charter con- UNITED STATES LIFE INS. Co. v. KIELGAST. ferred power to borrow money, and secure it by mortgage or deed of trust, and that the board of directors might borrow money of one of its members. The question before the court was properly decided, but the expression that a director may trade with, borrow from, or loan money to, the company of which he is a member, on the same terms, and in like manner, as other persons, was not authorized by the case made by the record. After a careful examination of the authorities, we are inclined to the opinion that, if this corporation was insolvent at the time of the sale, Miller, who was a director, could not lawfully purchase the property in satis- CRAIG, C. J. This was an action brought faction of his own debt, to the exclusion of by Elizabeth Kielgast, administratrix of the other creditors, but he took the property estate of Otto Wilhelm Kielgast, against the charged with the trust in favor of other cred- United States Life Insurance Company, in itors, which may be enforced in an appropri- the city of New York, to recover the amount ate action. Miller, being a creditor, would of a policy issued by the company to the dedoubtless be entitled to share with the other ceased on the 22d day of July, 1884. To the creditors in the property, but he could not declaration the defendant pleaded the general appropriate the entire amount to the payment issue, and also filed one special plea, in which of his own debt. This, however, conferred it set up that the policy of insurance conno right upon appellants to seize the property tained a provision that if, within three years and sell it in satisfaction of the debt of Blatch- from the date of the policy, the insured ford & Co., as creditors of the corporation. should die by any act of self-destruction They occupied no better position than Miller. whatever, the policy should become null and It may be, and no doubt is, true, that if Blatch- void; and that the insured, Otto Wilhelm ford & Co. had levied on the property while Kielgast, did die by an act of self-destrucin the hands of the corporation, before the tion, to-wit, by shooting himself with a pissale to Miller, they would, under such cir- tol, by means whereof the policy of insurance cumstances, have been entitled to hold it; became void. It appears that a coroner's inbut after the sale and delivery to Miller they quest was held over the body of the deceased had no such right. The property had passed by the coroner of Cook county and a jury, and beyond the reach of their execution. It had in making proofs of death a certified copy of passed into Miller's hands, charged with a the record of the coroner's inquest, consisting trust which a court of equity might enforce of the inquisition and the deposition of three in favor of all the creditors of the corpora- witnesses, was returned to the insurance In an action on a policy of life insurance, the coroner's inquisition upon the body of the insured is competent evidence as to the cause of his death, as the Illinois statutes requiring the incourt of the county, and filed, make it a public quest to be returned to the clerk of the circuit record. Appeal from appellate court, first district. Isham, Lincoln & Beale, for appellant. George F. Westover, for appellee. her "ELIZABETH X KIELGAST." mark company as a part of the proofs of death. the last week he was drinking more than The inquisition shows on its face that Kiel- usual. gast came to his death on the 17th day of January, 1885; that the death was caused by a pistol shot fired by the hand of the deceased while laboring under a fit of temporary insanity. On the trial the defendant offered in evidence the certified copy of the inquisition which had been returned to defendant as a part of proofs of death. The court excluded the evidence. The defendant then offered in evidence the original papers of which those previously offered were copies, offering the entire set of papers together, including the verdict and testimony. This evidence was also excluded. The defendant excepted to the decision of the court in excluding the evidence so offered; and the determination of the ruling of the court on the evidence is the principal question presented by the record. The inquisition was as follows: We shall not stop to inquire whether the court erred in excluding the offered evidence as a part of the proofs of death, but we will proceed at once to determine the question whether the inquisition was competent evidence for the defendant under its special plea tending to prove that Kielgast came to his death by his own hand. The office of coroner, at the common law, is an ancient one; so much so that Jarvis on Coroners (page 2) says "that the office of coroner is of so great antiquity that its commencement is not known." In 2 Bac. Abr. 428, it is said: "The powers and duties of a coroner are, by the common law, both judicial and ministerial. His judicial authority relates to in"State of Illinois, county of Cook-ss.: quiries into the cases of sudden death, with An inquisition was taken for the people of the the aid of a jury, super visum corporis, when state of Illinois, at 38 Grant place, in the city the death has happened." And Blackstone of Chicago, in said county of Cook, on the says, (1 Comm. 348:) "The office and power 18th day of January, A. D. 1885, before me, of a coroner are also, like those of the sheriff, Henry L. Hertz, coroner in and for said coun- either judicial or ministerial, but principally ty, upon view of the body of Otto W. Kiel-judicial. This is in great measure ascertained gast, then and there lying dead, upon the oaths of six good and lawful men of the said county, who being duly sworn to inquire on the part of the people of the state of Illinois into all the circumstances attending the death of the said Otto W. Kielgast, and by whom the same was produced, and in what manner and when and where the said Otto W. Kielgast came to his death, do say, upon their oaths as aforesaid, that the said Otto W. Kielgast, now lying dead at 38 Grant place, in said city of Chicago, county of Cook, state of Illinois, came to his death on the 17th day of January, A. D. 1885; and we, the jury, find that O. W. Kielgast came to his death on the night of January 17. 1885, by a pistol shot fired by his own hand while laboring under a fit of temporary insanity. In testimony whereof the said coroner and the jury of this inquest have hereunto set their hands the day and year aforesaid. DOUGLAS BARSTOW, Foreman. LOUIS GASSELIN. O. W. HAYNIE. H. M. GILLETTE. ANGELO FAIEL. M. J. SHUTE. HENRY L. HERTZ, Coroner. P. KNOFF, Deputy." Among the depositions was one given by appellee, as follows: "The deceased is my husband. He was thirty-nine years of age, and was born in Germany. Insurance agent by occupation. On the evening of January 17th, about 9 o'clock P. M., I heard a shot fired in his room. We hollered, and went down stairs, and sent my hired girl for the police. When he came, we went up stairs, where we found the deceased dead. All of a week ago he said he would kill himself. That was every day for the last six days. On the evening of January 17th, when he arrived home, he kissed his little boy, and said, 'Charlie, this is the last kiss that you will give your father.' For by statute, (4 Edw. I.,) de officio coronatoris; The earliest English statute relating to coroners was passed in the tenth year of Edward the First, and it is said by Jerv. Cor. 29, that it was merely directory, and in affirmance of the common law. The first act of the legislature of this state regulating the duties of coroner was passed March 2, 1819. The next statute was passed January 20, 1821, (Laws 1821, p. 22.) This act, upon an examination, will be found to be substantially like the statute of 4 Edw. I. Our present statute does not differ materially from the earl er acts; indeed, coroners are now required to proceed substantially as at common |