have notice of the forfeiture until after the destruction of the goods, some affirmative act or conduct is requisite. In such case, a waiver cannot be inferred from mere silence. It (the company) is not obliged to do or say anything to make the forfeiture effectual. It may wait until claim is made under the policy, and then, in denial thereof, or in defense of a suit commenced therefor, allege the forfeiture. The mere omission of defendant, if it did not receive notice of the additional insurance until after the destruction of the goods, to repudiate and annul the policy, and acquaint the plaintiff that it claimed the forfeiture, is not, as matter of law, a waiver of right to claim it. Titus v. Insurance Co., 81 N. Y., 410. On proof that the local soliciting agent of defendant went to the place of the fire on the morning after it occurred in company with the agent of the Hibernia Insurance Company, and with him examined into the condition of the goods, observing that he would have to telegraph for an adjuster, the court instructed the jury that they could look at these facts, in connection with the other evidence, to determine whether or not the defendant, through its agents, elected to treat the policy as subsisting, after knowledge of the second insurance, and that notice to the soliciting agent was notice to the company. Notice to an agent is notice to the principal only when it is acquired while engaged in the business of the principal, within the scope of his authority, and respecting a transaction then depending. Hill v. Helton, 80 Ala. 528, 1 South. Rep. 340. On this principle, notice to the soliciting agent, while receiving the application for insurance, of a material fact or inaccuracy in the application, is notice to and binds the company. Insurance Co. v. Young, 58 Ala. 476. The evidence shows that a soliciting agent has nothing to do with settling the loss. An agent who is only authorized to solicit and take application for insurance, receive the premiums, and deliver the policy after having been signed by the proper officers, has no authority, express or implied, to waive a breach of the condition of the policy relating to additional insurance. Bush v. Insurance Co., 63 N. Y. 531; Bartholomew v. Insurance Co., 25 Iowa, 507; Harrison v. Insurance Co., 9 Allen, 231; Hamilton v. Insurance Co., 15 Mo. App. 59; Clearer v. Insurance Co., 32 N. W. Rep. 660; Insurance Cos. v. Sorsby, 60 Miss. 302; Van Allen v. Insurance Co., 64 N. Y., 469; May, Ins. § 138.

A few days after the fire, Hawks, an adjuster representing both companies, came, and by agreement with plaintiff an appraisement of the value of the goods was made by persons selected, in pursuance of the terms of the policy. The adjuster, having been informed that there was a second insurance, entered into an agreement with plaintiff for the selection of arbitrators to make the appraisement. The agreement provides: "It being agreed and understood that this appointment is without reference to any other question within the terms and condition of the insurance contract as expressed in the policy." The policy also contains a provision that the appraisement of the value of the property by arbitrators chosen by the parties "shall not determine the validity of the contract, nor the liability of this company, nor any other question except only the amount of such loss or damage." There was evidence tending to show that Hawks promised to pay the loss. Hawks was not the generally retained adjuster of defendant, but was employed in particular cases. Special authority to an agent to adjust loss and damage does not confer authority to bind the company by a promise to pay the loss. It may be that if the company, with knowledge of the forfeiture, had authorized an agent to adjust the loss, a liability and a promise to pay would ordinarily be implied; but the implication may be rebutted either by the terms of the policy, or by an agreement reserving the question of liability. The validity of the agreement is not impeached. There is no pretense that its contents were concealed or misrepresented. The plaintiff signed it on the opinion and advice of a trusted friend. An agreement that the adjustment shall be made "without reference to any other terms and conditions of the insurance con

tract" is a reservation of the question of liability. Such agreement cannot be construed as more than a promise to pay the loss in the event the company is liable. Waiver of a right to claim a forfeiture for a breach committed before the loss of the property is not the legal result of an adjustment of the loss under the policy and agreement. Whipple v. Insurance Co., 11 R. I. 139; Insurance Co. v. Lawrence, 4 Metc. (Ky.) 9; Jewett v. Insurance Co., 29 Iowa, 562; May, Ins. § 138. The charge of the court as to the effect of the agreement is in accord with these views. There being no other evidence of notice to defendant of the second insurance than stated above, the affirmative charge requested by defendant should have been given. Reversed and remanded.

MCDONNELL et al. v. ALABAMA GOLD LIFE INS. Co. et al.

(Supreme Court of Alabama. December 5, 1888.)

1. CORPORATIONS-STOCKHOLDERS-LIABILITY FOR CORPORATE Debts.

The phrase "liable to the amount of his stock," as used in Const. Ala. 1868, art. 13, §§ 2, 3, and in Code 1867, § 1760, relating to the liability of stockholders for the debts of the corporation, means not simply the amount remaining undue on the stock, but an additional sum equal to the amount of the stock.

2. SAME LIABILITY TO ALL CREDITORS.

As neither the constitution nor the statute limits the remedy to judgment creditors, it inures to all creditors.

3. INSURANCE-LIFE INSURANCE COMPANY-INSOLVENCY-CLAIMS OF POLICY-HOLDERS. Where a life insurance company becomes insolvent and dissolves, the claims of policy-holders become debts due in præsenti, and entitle their owners to the benefit of the "individual liability" laws.

4. CORPORATIONS-DISSOLUTION

ASSIGNMENT FOR BENEFIT OF CREDITORS.

A corporation is dissolved, within the meaning of the statute relating to the personal liability of stockholders, when it makes an assignment for benefit of creditors, and ceases to do business."

5. SAME-ACTION AGAINST STOCKHOLDERS-STATUTE OF LIMITATIONS.

The cause of action against the stockholders does not accrue until dissolution, and the statute of limitations then begins to run.

6. SAME ESTOPPEL OF STOCKHOLDERS TO DENY CORPORATE ORGANIZATION.

Stockholders and organizers of a life insurance company are estopped, as against policy-holders, from setting up the illegality or irregularity of the corporate organization,1

7. SAME-CONTRACTS-PERSONAL LIABILITY OF STOCKHOlders.

The personal liability imposed upon stockholders in corporations by Const. Ala. 1868, art. 13, §§ 2, 3, and Code 1867, § 1760, is a part of every corporate contract thereafter made, and, as to existing contracts, cannot be taken away by a subsequent change in the constitution. 8. INSURANCE-LIFE INSURANCE POLICY-RENEWAL-CONTINUING CONTRACT.

A "paid-up" policy of life insurance issued on no new consideration, and in pursuance of an express agreement in the original policy to issue it, is not a new contract, so as to be affected by a change in the constitution, made between the time of its issue and that of the original, abolishing individual liability of stockholders for debts of the company.

Appeal from chancery court, Mobile county; THOMAS W. COLEMAN, Judge. Bill filed by Kate McDonnell and others against the defendant company and certain of its stockholders to enforce the individual·liability of the latter. A demurrer to the bill was sustained in part, and complainants appeal. J. Little Smith, for appellants. Overall & Bestor, for appellees.

SOMERVILLE, J. The bill is filed by certain policy-holders against the defendant corporation, which is an insolvent life insurance company, and against

'Stockholders who organize themselves as a corporation, transact business, and hold themselves out to the world as such corporation, cannot, when proceeded against by creditors, set up as a defense that the preliminary steps of the organization were irregular; nor can they deny their liability as stockholders therein. Aultman v. Waddle, (Kan.) 19 Pac. Rep. 730. See, also, note, Id.

co-defendant stockholders owning shares in the company, on October 8, 1886, the date of its dissolution, as manifested by the making, on that day, of a general assignment for the benefit of creditors. The complainants claim to be creditors of the company in præsenti, and seek to subject the stockholders to a personal liability in sums respectively equal to the amount of their stock, and additional to such stock, under the provisions of the constitution and laws of Alabama, which were of force at the time the company was organized, in the year 1868. It is claimed that this personal or individual liability arises severally under the constitution of 1868 and under the Code of 1867. The provisions of that constitution relied on as applicable are sections 2 and 3 of article 13, which read as follows: "Sec. 2. Dues from corporations shall be secured by such individual liabilities of the corporators or other means as may be prescribed by law. Sec. 3. Each stockholder in any corporation shall be liable to the amount of his stock held or owned by him." Section 1760 of the Revised Code of 1867, identical in language with section 1478 of the Code of 1852, is in the following words: Section 1760. "The stockholders of any such corporation are liable for all debts due by it at the time of its dissolution, to the extent of their stock." This section is made applicable to life insurance companies, by the act approved August 6, 1868, (Acts 1868. p. 16,) which purports to amend section 1755 of the Code of 1867, provided such amendatory act be sustained as constitutional. The errors and cross-errors assigned are based on the rulings of the chancellor on the demurrers to the bill, all of which were overruled except those making objection to the paid-up policy of Mrs. McDonnell as one not imposing any personal liability on the stockholders. This paid-up policy was issued after December 5, 1875, when the present constitution went into effect, with its accompanying provision that “in no case shall any stockholder be individually liable otherwise than for the unpaid stock owned by him or her." Const. 1875, art. 14, § 8; Code 1876, § 2023. Her original policy was, however, issued on February 23, 1870, while the constitution of 1868 and section 1760 of the Code of 1867 were in force. We proceed to consider seriatim the various objections to the equity of the bill as suggested in the demurrers and presented on argument.

1. It is first urged by counsel that neither the phrase "shall be liable to the amount of stock held or owned by him," as used in the constitution of 1868, nor that used in the Code of 1867, (section 1760,) liable "to the extent of their stock," can be properly construed to mean liable for such amount additional to, or over and above, their stock; but that these phrases mean nothing more than that stockholders of corporations shall be personally liable to creditors for unpaid subscriptions of stock. It is enough to say that this contention is settled against the cross-appellants by the past decisions of this court, which hold that these laws were intentionally framed for the express purpose of imposing a personal or individual liability on corporate stockholders, not only to the extent of their unpaid stock, but for an additional sum equal to the amount of such stock, enforceable by a bill in equity for the equal benefit of the creditors on the dissolution of the corporation. Smith v. Huckabee, 53 Ala. 191; Spence v. Shapard, 57 Ala. 598; Association v. Insurance. Co., 70 Ala. 120. Laws having in view a like purpose, of securing the public against extravagant speculations and incautious enterprises on the part of bodies corporate, have long prevailed in this state, and in many other states of the union. The language of these foreign statutes is, in many cases, quite similar to our own, and a like construction has been placed upon them by the highest courts of the several states enacting them. Briggs v. Penniman, 8 Cow. 387; Hawthorne v. Calef, 2 Wall. 10; Cook, Stocks, § 215, note 2; Terry v. Tubman, 92 U. S. 156.

2. It is expressly provided in some of these statutes that the personal liabilities of stockholders for this additional amount shall arise only after a recovery by the creditor of a judgment against the corporation, and an exhaus

tion of his legal remedy by a return of no property found. The remedy, in other words, is there conferred only on judgment creditors after exhausting the corporate assets. It is manifest that under neither the provisions of the constitution nor those of the statute under consideration, is any such limitation established; and, not being so restricted, the remedy must be construed as being conferred on all creditors, including those who have no lien, or whose claims are evidenced by simple contract. The assignment of demurrer based on this ground was properly overruled. Spence v. Shapard, 57 Ala. 598; Association v. Insurance Co., 70 Ala. 120.

3. It is further contended that the claims of policy-holders in life, like those of the complainants, do not come within the class of demands intended to be secured by this additional liability; that they are not "dues" from the corporation, within the meaning of the constitution of 1868, nor “debts due” by it, within the intention of the statute, and that for this reason the bill is wanting in equity. Laws of this peculiar kind have been held by some courts to be remedial, and therefore to be liberally construed. By others they have been construed strictly as in derogation of the common law. The true principle sustained by the sounder reason, in our judgment, is that they should be construed neither liberally nor strictly, but reasonably, so as to carry out the clear purpose and policy for which they are enacted. Thomp. Liab. Stockh. § 53; Freeland v. McCullough, 43 Amer. Dec. note, pp. 696, 697. It is accordingly the opinion of the court that the claims of the complainants, growing out of the insolvency of the defendant, and the repudiation of its duty to carry the policies by a discontinuance of its business, are debts due in præsenti, upon the dissolution of the corporation, and, as such, fall within the intention of the law. There is in this case a manifest and total breach of contract by the company in its failure to carry on the business of life insurance. This breach has resulted in damage to all persons holding policies for which an immediate action will lie. These damages, moreover, are liquidated, being capable of the most accurate and certain mathematical ascertainment. The legal measure of such damages is the surrender or equitable value of the policy, calculated on the basis of the "American Tables of Mortality," which are now the orthodox standard throughout the United States and Canada, and of which judicial notice will be taken by the courts. The data of age, premiums paid, and the date of the policy being given, this value becomes certain and fixed, and, we repeat, the policy-holder becomes a creditor of the company with the right to sue for such value instanter upon its dissolution. People v. Insurance Co., 78 N. Y. 114; Insurance Co. v. Statham, 93 U. S. 24; McCall v. Insurance Co., 9 W. Va. 237; Day v. Insurance Co., 45 Conn. 480; Gordon v. Tweedy, 74 Ala. 232. And the claim is none the less a "debt due," within the purpose and intent of the law, because it was, at the time the policy was taken out, payable on a future contingency. It was nevertheless debitum in præsenti, solvendum in futuro; having in its composition no element of tort. U. S. v. Bank, 6 Pet. 36; Fearn v. Ward, 65Ala. 33; Cable v. McCune, 26 Mo. 371; Carver v. Manufacturing Co., 2 Story, 432.

4. The pivotal period fixed by the statute for the accrual of this personal liability is for those debts due at the time of the dissolution of the corporation. Code 1867, § 1760. That the defendant corporation was dissolved, within the meaning of this statute, by the assignment made by it for the benefit of creditors in October, 1886, and by its entire cessation of business, there can be no doubt. A practical and not a judicially adjudged dissolution is what the statute contemplates. This is evidenced by insolvency, and the turning of the corporate assets over to a trustee for distribution among creditors, followed by a complete abandonment of the business for which the company was organized. The authorities, both in this and other states, are so full on this point as to render any lengthy discussion of it unnecessary. Association v.

Insurance Co., 70 Ala. 120; Slee v. Bloom, 19 Johns. 456; Briggs v. Penniman, 8 Cow. 387: Thomp. Liab. Stockh. § 267.

5. The claims in suit not having become due until the dissolution of the corporation on October 8, 1886, no right of action accrued thereon until that day against the stockholders of the company. The bill having been filed October 15, 1886, only seven days thereafter, it is palpable that the suit is unaffected by the statute of limitations, either of six years or of any other period. 6. It is suggested that the defendant corporation, the Alabama Gold Life Insurance Company, was never legally organized, there being no law, general or special, which authorized the organization of life insurance companies in the year 1868. This contention is based on the idea that the act approved August 6, 1868, amendatory of section 1755 of the Revised Code of 1867, which adds life insurance companies to the list of corporations authorized to be formed under the general law, is void for repugnancy to section 2 of article 4 of the constitution of 1868, then in force, which provided that "no laws shall be revised or amended unless the new act contain the entire act revised, or the section or sections amended." The case of Bridge Co. v. Olmstead, 41 Ala. 1, is cited in support of this view. Whatever merit there may be in this contention, a sufficient answer to it is found in the fact that the defendants, who seek to raise this objection, are estopped from setting up the illegality or irregularity of their corporate organization. They are stockholders in the company, and have undertaken to organize and hold themselves out to the public as such, and as a lawful body corporate. They have obtained credit and issued policies on the faith of this representation, whereby they have solemnly affirmed the validity of the law, under which they organized, and consequently the legality of the organization. This was an admission of the constitutionality of the amendment now assailed as void, and this admission cannot be now retracted to the prejudice of those who have accepted policies upon the faith of its affirmed validity. To repeat in brief-all stockholders situated as are the defendants in this case, must be held estopped to deny constitutionality of the law under which they organized, and for 18 years uninterruptedly carried on their business. McCarthy v. Lavasche, 89 Ill. 270; Association v. Insurance Co., 70 Ala. 121.

7. It is further argued that the personal liability of stockholders, as imposed by the statute under the constitution of 1868, was given by law, and that it could be taken away by law, that is, by the repeal of the law giving it. This repeal was effected on December 5, 1875, when the constitution of 1875 went into effect, section 8 of article 14 of that instrument declaring that, "in no case shall any stockholder be liable otherwise than for the unpaid stock owned by him or her.". Section 2023 of the Code of 1876, enacted to carry this clause into effect, from abundant caution provided, that while stockholders shall be individually liable to the creditors of corporations for unpaid stock, "no such stockholder shall be otherwise individually liable for any dues or debts, owing by such corporation, incurred or contracted after the 5th day of December, A. D. 1875." Code 1876, § 2023. The question arises, does this repeal retroact upon contracts of insurance made under the old law so as to destroy the individual liability of stockholders as to such contracts? We might dispose of this point without any discussion on the authority of Hawthorne v. Calef, 2 Wall. 10, where the precise question arose, and was expressly decided in the negative by the supreme court of the United States. That case was this: The charter of a corporation in the state of Maine, granted in the year 1836, provided that the property of the individual corporators should, under certain restrictions, be liable for the debts of the corporation "to the amount of their stock." A few months after the debt then in suit had been contracted by the corporation, the legislature of Maine passed a statute repealing this individual liability clause of the charter. It was argued there, as here, that the liability was created by statute, and could therefore be taken