upon the decision of the voters in the locality. The former conviction was not annulled or its legal consequences in any way affected by the vote of 1910. The court did not err in ruling on the plea in abatement. [2] It is contended that the court erred in permitting the state's attorney to ask leading questions. The witnesses were not Americans and were acquainted only with the language of their nativity and testified through an interpreter. There was some difficulty in getting direct and intelligible answers, and some of the questions in terms directed attention to the subject-matter concerning which they were called to testify. We do not find any question which indicated the answer desired, and the rulings were evidently for the purpose of expediting the trial. The matter was largely in the discretion of the court, and there was no improper ruling. Maguire v. People, 219 Ill. 16, 76 N. E. 67; McCann v. People, 226 Ill. 562, 80 N. E. 1061. Kalb, which was then anti-saloon territory, or not in particular localities, depending and alleged a previous conviction for violating the same act. The count numbered 13 charged him with maintaining a common nuisance by keeping a place in the town where he unlawfully sold intoxicating liquor. The former conviction alleged was in 1908, and he first filed a plea in abatement, alleging that in May, 1910, the town ceased to be anti-saloon territory and again became anti-saloon territory in May, 1914, and that there was a period between the former conviction and the alleged violation of the law in 1914 when the law was not in force in the town. The court held the plea insufficient. There was a trial, at which the jury found the defendant guilty on all of the counts of the indictment. A motion for a new trial being made, the state's attorney entered a nolle prosequi as to the counts numbered 9, 10, 11, and 12, and the motion was overruled. The court sentenced the defendant to pay a fine of $75 on each of the first eight counts and a fine of $100 on the thirteenth count and also to confinement in the county jail 15 days on each of the first eight counts, the terms to follow in immediate succession in the order named in the judgment, and 50 days on the thirteenth count, to follow the term of imprisonment on the eighth count. A writ of error was sued out from the Appellate Court for the Second District, and one of the judges of that court, having received the verdict of the jury, took no part. The other judges were of the opinion that no error was committed in receiving the verdict, but were divided in opinion on other errors assigned, and the judgment was affirmed by operation of law. A writ of error was sued out of this court to review the judgment of the Appellate Court. [1] The first assignment of error is that the court erred in holding the plea in abatement insufficient, because the Local Option Law under which the defendant was convicted was repealed by the vote of the people in 1910 so far as the town of De Kalb was concerned, and was as though it never had been, and the repeal was a remission of all penalties under the law. If it should be assumed that the vote in 1910 amounted to a repeal of the act in the town of De Kalb, section 4 of chapter 131 of the Revised Statutes of 1874 provides that even in the case of an express repeal no new law shall be construed to repeal a former one as to any offense committed against the former law or as to any act done or penalty, forfeiture, or punishment incurred under the former law, and that statute makes the decisions in other jurisdictions inapplicable here. The vote, however, was not a repeal of the Local Option Law, which does not delegate any legislative function to the people of any locality. The law continued in force, but by its provisions it is operative [3] The court admitted in evidence a certified copy of an internal revenue special tax stamp issued to the defendant as a retail dealer in malt liquor at 503 East Lincoln highway, De Kalb, Ill., covering the period from July 1, 1914, to June 30, 1915, for a consideration of $20. It is argued that the court erred because there was no evidence of posting the revenue stamp at 425 East Lincoln highway. When the stamp was offered the objection at first was only general, and afterward that the copy was not properly certified. There was no defect in the certificate, and the certified copy was admissible, under section 17 of the Local Option Law (Act May 16, 1907 [Hurd's Rev. St. 1913, c. 43, § 41]), as prima facie evidence of the sale of intoxicating liquor at the place mentioned in the stamp or at any place of business where the stamp or receipt was posted. There was no evidence that the stamp was posted at the place alleged to be a nuisance, but there had been evidence of sales, and the paper was properly admitted to show the character of the liquor sold. The court admitted in evidence two cases of beer taken from the basement at the home of Baraisis, one of the witnesses, and it is insisted that this was improper because the presence of the cases of beer shown to the jury had a tendency to inflame the minds of the jurors against the defendant, and because it had not been proved that he sold the beer. Baraisis had testified that he ordered two cases of beer from the defendant; that he did not see who brought them to the house, but he first saw them when the policeman was removing them from his basement, which was the day after they were delivered. There also had been evidence that the defendant peddled blank orders for beer about the city and delivered cases to customers, and the evidence was sufficient to admit the cases of beer in evidence. Nothing | the defendant, but he testified that it was is suggested by counsel which would cause these particular cases of beer to have any especial effect upon the minds of the jury to the injury of the defendant except to convince them that he was guilty and that the beer in the cases was a malt liquor, which was proved. [4] The defendant received numerous shipments of beer in considerable quantities, and receipts for the same were offered in evidence and objected to. There was a large number of these receipts for beer shipped to Moses Brown, M. Brown, the Moses Brown Express Company, or Moses Brown, care of Moses Brown Express Company. Some of the shipments contained as many as 30 or 40 cases of beer consigned to Moses Brown Express Company. The objection is that the freight bills were copies of the original waybills made at the place of shipment, and the copies were made by clerks, and were incompetent because not originals. The objection does not apply, because on the waybills there were receipts for the beer proved to have been signed in the genuine handwriting of the defendant, who was not only an individual dealer, but also an express company. The receipts for the goods were original evidence and competent. He The defendant was convicted in the circuit court of De Kalb county on January 22, 1909, for a violation of the Local Option Law. The town ceased for a time to be anti-saloon territory and again became such territory on May 22, 1914. The defendant again engaged in the business, and was proved guilty beyond all reasonable doubt. had a place of business on East Lincoln highway, in the city of De Kalb, where he kept on hand printed order blanks and envelopes, which he also distributed around the city. Persons who desired to purchase beer would apply to him, and he told them that they could get it right there; that he would order it for them, and it would come in three or four days, and he would deliver or send it to them. He would have the customer sign the order and pay for the beer, and then he would make his own check for the price and pin it to the order blank, and would then place it in an envelope and hand it to the customer and tell him to mail it. The customer did not pay any transportation charge, but paid $1.20 for smaller cases, and $1.80 for larger cases, and the beer was delivered to the customer by the defendant. The usual plan was for the customer to sign the order, but one witness who could not write testified that he never signed any blank or paper and was not given any envelope. In addition to the two cases of beer before mentioned, the defendant sold Baraisis a gallon of whisky, for which he was paid $3, and the whisky was purchased directly from him, It is contended that Baraisis did not fix the time when he bought beer and whisky from after the saloons were closed in 1914, and, if the saloons had been open, he would not have gone to the defendant for the whisky and beer, so that the time was fixed, not by the month or day, but by the fact that the saloons had been closed. On July 7, 1914, the defendant procured a special tax stamp for engaging in the business of retail dealer of malt liquor for the period of one year, and that he was engaged in that business is beyond question. [5] The verdict was rendered in the absence of the defendant and his attorney, and this is the ground of an assignment of error. According to the common law, a defendant accused of a misdemeanor may be found guilty in his absence. In Holliday v. People, 4 Gilman, 111, the defendant was found guilty of administering poison to procure an abortion, and the verdict of guilty was found in his absence. The jury fixed the time of imprisonment in the penitentiary at one month, and the court, in addition, imposed a fine of $100. The offense charged in the indictment being a misdemeanor only, it was decided that there was no occasion for his presence and no error was committed. The question considered in Harris v. People, 130 Ill. 457, 22 N. E. 826, was not whether the defendant must be present when the verdict is returned, but whether he must be present to receive the sentence. The judgment was reversed, with instructions to the circuit court to pronounce sentence upon the defendant, who should be for that purpose personally present in court to receive the sentence. The court said that, where the offense is a misdemeanor, punishable by a fine or by a fine and imprisonment, where a fine only is imposed, it is within the discretion of the court to sentence the defendant in his absence. The defendant in that case was convicted of a felony. But, if it is necessary that the defendant be present when a sentence for a misdemeanor, including corporal punishment, is pronounced, the defendant in this case, who was at liberty on bail, was present when sentenced. It was not error to receive the verdict in his absence. [6] Objection is made to two instructions which it is said gave the jury leave to go back of the time when the town became antisaloon territory, but the instructions are not subject to that objection. Another instruction is objected to because it told the jury that it was not necessary to prove that the defendant knowingly and willfully violated the statute, but all that was necessary was to prove beyond a reasonable doubt that he did violate it. The instructions were not objectionable. Other instructions are commented on in the reply brief, but must not be considered, because contrary to the rule of the court. [7, 8] The jury found the defendant guilty on all of the counts of the indictment, and it is contended that the court erred in per UALTY CO. (218 N. Y. 1) (Court of Appeals of New York. April 18, 1916.) INSURANCE 511-INDEMNITY POLICY-CON STRUCTION-EXPERIENCE." mitting the state's attorney to enter the nolle PRINGLE BROS. v. PHILADELPHIA CASprosequi as to four of the counts. After a jury has been impaneled and sworn the prosecuting officer cannot nolle pros. the indictment, or any count, on the trial without the consent of the defendant, who is entitled to a verdict which will be a bar to another prosecution for the same offense. But that rule does not apply to this case. The defendant had been found guilty on all of the counts, and by the action of the state's attorney he escaped the sentence of the law as to four of the counts. He was asking for a new trial and obtained all the benefit that a new trial would have given him if the counts were not sustained by the evidence, and he was not injured, but benefited. Clause of policy insuring against bad debts, requiring with the notice of loss a statement of prior experience with the debtor, and limiting liability to the amount of goods sold him within the 12 months next preceding the first shipment for which liability is claimed, held to limit it, not simply to indebtedness paid, but according to all transactions in the stated period; "expefrom previous transactions, and not the result of rience" meaning the whole knowledge acquired a single deal. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1296, 1297, 1299; Dec. Dig. 511. For other definitions, see Words and Phrases, Second Series, Experience.] Appeal from Supreme Court, Appellate Division, First Department. [9-11] The verdict found the defendant guilty in manner and form as charged in the indictment, upon "the following counts: All the counts in the indictment"-and it is Action by Pringle Bros. against the Philaargued that this was a single finding on the delphia Casualty Company. From a judggeneral charge for a single offense. A ver- ment of the Appellate Division (153 App. dict is not to be construed with the same Div. 180, 138 N. Y. Supp. 330), reversing a strictness as an indictment, but it is to be judgment of the Special Term for plaintiffs liberally construed, and all reasonable in- and dismissing the complaint upon the mertendments will be indulged in its support.its, plaintiffs appeal. Reversed, and judgPeople v. Lee, 237 Ill. 272, 86 N. E. 573; ment of Special Term affirmed. People v. Tierney, 250 Ill. 515, 95 N. E. 447. This verdict plainly meant that the defendant was guilty on every count of the indictment. But it is further argued that, conceding the sufficiency of the verdict as a finding on all the counts, the court could only HOGAN, J. This action was brought to impose the penalty prescribed for a single recover upon a so-called credit indemnity offense, and the decision in People v. Lis- bond, which is in effect a policy of insurance comb, 60 N. Y. 559, 19 Am. Rep. 211, is re- against losses arising from bad debts. The lied upon. That decision has not been gen-contract in question is a lengthy document, erally approved, and at any rate is not in and, together with the application for the accordance with the law of this state. Mul- same and five riders attached thereto, covlinix v. People, 76 Ill. 211; Martin v. Peo-ers 20 pages of the record. The bond or polple, 76 Ill. 499. [12] It is urged that the sentence was too severe for merely rendering assistance to persons who wanted to obtain liquor, and that the defendant ought not to be visited with such extreme penalties for the friendly act of furnishing information and advising persons how to order beer and where they could get it. The defendant interested himself quite actively in peddling blank orders about the city and ordering and delivering beer, and the evidence does not show that he was merely charitably inclined to aid his friends. His acts were prohibited by the statute, and the sentence was within the provisions of a valid law. The extent of the punishment was in the discretion of the court, and, the defendant being a persistent violator of the law, the punishment was justly inflicted. Henry G. Gray, of New York City, for ap- ent. icy bears date November 4, 1902, and was issued to plaintiffs, who were merchants engaged in business at Charleston, S. C. The period of indemnity was from October 30, 1902, to December 31, 1903. The maximum amount for which the plaintiffs were insured against was $10,000 and the obligation on a single account was limited to $5,000. The plaintiffs were to bear 1 per cent. of the amount of sales and shipments made by them, which sales and shipments aggregated $689,542.16; the initial loss at 1 per cent. to be borne by plaintiffs being $6,895.42. The referee before whom the case was tried found the total loss sustained by plaintiffs was $9,556.99, and, after deducting the initial loss of $6,895.42, the referee determined that the amount due the plaintiffs under the policy was $2,661.57, to which interest was added, and judgment awarded to the plain The judgment of the Appellate Court is af- tiffs. firmed. Judgment affirmed. Upon appeal by defendant, the Appellate Division reversed two several findings desig For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 112 N.E.-30 nated by the referee as conclusions of law, | words, the defendant was willing to insure the which were denominated by the Appellate credit of each of plaintiffs' customers to an Division as findings of fact, reversed rulings amount that plaintiffs' experience with such cusmade by, the referee upon certain proposed requests to find matters of fact, made by defendant, refused by the referee, and thereupon ordered and adjudged that the order and judgment appealed from be reversed, and plaintiffs' complaint be dismissed upon the merits. stance. * tomers indicated would be a reasonably safe credit. 'Experience,' as commonly understood, means the knowledge gained by observation or trial, and it is in that sense that it must be deemed to have been used in the present in* The only experience that would be valuable upon such a subject would be that derived from a knowledge of the financial responsibility of the customers proven by the amount of indebtedness that they had shown The question presented on this appeal in-themselves able to meet and pay. The amount volves the construction of a clause of the in- that they had incurred and not paid would afford demnity policy. The policy makes distinc- no guide to a knowledge of their financial abiltion between "old" customers and "new" ity. * Furthermore, the language speaks of the past, and refers to a 'previous' indebtedcustomers. By paragraph "D" of schedule ness, and while, strictly speaking, an indebtedA, "old" customers are defined as customers ness which was still unpaid when the bond was to whom the indemnified has shipped goods issued was a 'present' and not a 'previous' indebtedness." within said 12 months specified in paragraph DD of that rider. The "12 months" specified in paragraph DD is "12 months prior to shipping the first item of goods included in the account upon which the loss occurred." * The contract of indemnity in question in complete form, as I have stated, is voluminous and covers a class of insurance so recently in operation that few decisions of Paragraph "O" provides that "old" cus- the courts have been made relating to the The form of the contract furnishes tomers shall be covered entirely according same. to paragraph DD of the rider, and "goods an additional illustration of the differences shipped to a new customer subsequent to the likely to arise between lawyers as well as first bill shall not be covered unless the first the courts in an interpretation of language bill has been paid, and after such first bill employed in a contract, which conflict of has been paid such new customer shall be opinion could readily be avoided by the use considered an old customer and covered ac- of plain and concise terms capable of intercording to paragraph DD of this rider." pretation by individuals seeking indemnity New customers are also defined in paragraph or prevailed upon to purchase and pay for Insurance contracts should be "O" as "customers to whom the indemnified the same. has shipped no goods within said 12 months free from ambiguity, and couched in lanor to whom the indemnified never sold any guage which clearly defines the liability of goods." the indemnitor and the rights of the indemnified. Had the defendant in the contract in Paragraph DD reads as follows: "DD-Blank blank as to both capital and cred-question intended to limit its liability to the it, or whose name is not printed in the designated Agency Book, or who is rated with either of the above first, second, third or fourth grade ratings, shall be covered for an amount not exceeding the highest previous indebtedness for goods shipped by the indemnified to the debtor within 12 months, prior to shipping the first item of goods included in the account upon which the loss occurred, not exceeding, however, $5,000.00. But the loss on any such customer shall not be covered unless the preliminary notice thereof has attached to it a copy of the account, showing the prior experience with such debtor." "highest previous indebtedness" which had been paid by a debtor, it would have been a simple matter to use language which would clearly express such limitations, and at the same time enable the indemnified to understand the liability of the indemnitor to him. I do not concur in the reasoning or deAs termination of the Appellate Division. I read the clause of the contract, the liability of the defendant and the indemnity to plaintiff's under schedule A (DD) was to be The referee awarded plaintiffs judgment determined in an amount not exceeding the on losses sustained through certain old cus- highest previous indebtedness of the debtor tomers, each of whom he found was covered for goods shipped, within the time stated, under the provisions of the policy to which not exceeding $5,000, and not, as determined attention has been called. The Appellate in this case and the Steinwender Case, "the Division followed a former decision made highest indebtedness which any debtor had by that court in Steinwender v. Philadelphia | paid before the execution of the bond." The Casualty Co., 141 App. Div. 432, 126 N. Y. latter construction not only interpolates the Supp. 271, and held that the referee was in error. In the case cited, the Appellate Division held that the words "highest previous indebtedness" referred to in paragraph DD meant the highest indebtedness which any debtor had paid before the execution of the bond. Justice Scott, writing for a majority of the court in that case said: "Experience' as the test of the liability for any customer, in place of the arbitrary, but certain liability based upon the customer's rating with the commercial agencies. In other word "paid" in the contract, but extends the highest previous indebtedness beyond the time specified in the contract. The construction I have given to the clause under consideration of necessity compels me to dissent from the reasoning upon which the same is based. In clause DD is found the following: "But the loss on any such customer shall not be covered unless the preliminary notice has attached to it a copy of the account showing the prior experience with such debtor." The decision below proceeds upon the the-[in the first instance, and later on extended ory that "experience" as used in the clause by reason of a knowledge of customers acin question would be: quired by dealings with them. Such knowl"That derived from a knowledge of the finan-edge founded upon actual experience would cial responsibility of the customers proven by be a basis from which they could determine the amount of indebtedness that they had shown the risk they were ready to assume. Their themselves able to meet and pay." business relations with a customer may have been satisfactory. Extended credit may have been granted for numerous reasons, such as the habits and industry of a customer, in The "preliminary notice" mentioned may be termed a notice of loss. It was a printed blank furnished by and required to be obtained from the defendant. It was in sub-creased business conducted by him at small stance a notice of claim against an insolvent debtor, and required the insured to state name and residence of the debtor, rating, if any, reasons why loss is covered other than on debtor's rating, with papers and information to substantiate such reason, the date and amount of each shipment, by what line goods were shipped, what security or collateral held, whether or not any offer of compromise had been made, what, if any, effort to compromise had been made, and, if so, what steps had been taken to secure the claim and statement of grounds of conclusion that the claim is a loss, and statement of terms of sale and discount. expense, promptness in payment of bills, and other traits which may have been considered sufficient experience to extend further credit. At the time the policy in question was issued plaintiffs were within the definition of "experience" as stated by Justice Scott, for their knowledge of customers with whom they had dealings was gained by observation or trial, and in all probability by careful investigation. Such experience would be of greater value than an experience dependent alone upon the amount of a previous indebtedness paid. Their "prior experience" was not limited to an isolated transaction, but clearly extended to that experience they had gained by observation or trial with customers with whom they had dealings. Neither should we overlook the fact that under the policy the plaintiffs assumed a larger percentage of the loss than was assumed by the defendant. The facts in this case disclose The "copy of the account showing the prior experience with such debtor" required plaintiffs to furnish with the notice of loss an account showing the dealings between plaintiffs and the debtor for goods shipped. date of shipments, credits extended, extent and value of goods sold, payments made, and the total sales made by the plaintiffs for the balance due, or substantially a complete copy of the account from the plaintiffs' books. A year aggregated $689,542.16. The total losses sustained by them according to the referee's failure to attach a copy of the account show-figures was $9,556.99. Under the terms of the ing the prior experience with such debtor under the language used would exclude it from participation in the policy. This statement was not to be furnished until after a loss had been sustained. contract the initial loss assumed by the plaintiffs was $6,895.42, or about 72 per cent. of the total loss. The loss sustained by the defendant was $2,661.57, approximately 28 per Plaintiffs were engaged in the mercantile cent. of the total loss. In addition, plaintiffs business, and necessarily had extensive deal-were required to pay an annual premium of 5 per cent. or upwards on a maximum liaings with numerous customers preceding the bility of $10,000. issuance of the policy in suit. They could not conduct business with any degree of safety unless they were acquainted with the financial responsibility and standing of the customers to whom they sold goods. Such information might be obtained through commercial agencies if the prospective customer was rated, by reference deemed by plaintiffs reliable or by personal investigation. It is reasonable to assume that plaintiffs before making sales to customers secured information from some source which enabled them to determine the amount of credit they could conservatively extend in each case. The amount of such credit may have been limited The construction I have placed upon this contract is the more reasonable interpretation of the language employed, and this conclusion results in the reversal of the order and judgment of the Appellate Division. The judgment of the Appellate Division should be reversed and the judgment entered on the report of the referee affirmed, with costs in the Appellate Division and this court. WILLARD BARTLETT, C. J., and HISCOCK, CHASE, CUDDEBACK, CARDOZO, and POUND, JJ., concur. Judgment accordingly. |