UNITED STATES v. WILLIAMS, 28 F. Cas. 660

THKUSTON, Circuit Judge, and MOB-SELL, Circuit Judge, being of opinion against Mr. Key on that point, he said he would abandon it But he contended that the corporation was, in fact, still in existence de jure and de facto, until a judgment against it. 2 Kent, Comm. 310; Slee v. Bloom, 19 Johns. 456; Bockville Turnpike Co. v. Yan Ness [Case No. 11,986], in this court; Mechanics’ Bank v. Minor [Id. 9,-385], also in this court. As to annual election of officers, Mr. Key cited 2 Kent, Comm. 295. THE COUBT neither refused nor granted the instructions prayed by Mr.

Brent, but (CBANCH, Chief Judge, contra) instructed the jury, that if they should be of opinion from the evidence, that at the time when, &e., there was no board of examiners de jure, the defendant is not guilty under the statute, and that if they should be satisfied by the evidence, that the board was not elected and continued by filling up vacancies, &c., but was, for the last two or three years, elected annually, &c., then there was no legal board of examiners, &c. MOBSELL, Circuit Judge, expressed an opinion that the prosecution was not sustained.

That the indictment ought to have averred that there was such a corporation; that the board of examiners was appointed by at least seven of the members; and that the United States must show that the officers were duly appointed; and that although the minutes of the proceedings of the board were lost, yet the United States must prove their contents; and must show that, at the time when, &c., there was a competent board of examiners de jure.

And that “if the jury find from the evidence that the election of the board of examiners was by a less number than seven members of said association; that then there was a neglect to elect an integral part of said corporation, and that it was thereby entirely incapable of performing the principal purpose for which the charter was granted, that they could not so restore their power as to make any subsequent legal election of said board of examiners; and that even if it amounts not to a forfeiture, yet by a consequence of law, said corporation is dead; and that if such was the state of this (society) at the time of the offence committed, as charged in the indictment, then they ought to find the traverser not guilty.” He said also that he was willing to give the jury the following instruction: “If the jury believe from the evidence that the medical association omitted intentionally to elect the. president, vice-president, secretary, and treasurer of ■ the said society for several years after the organization of the society, at the times directed by the charter, and neglected to fill up the vacancies which occurred in the said medical board; and that one or more of the members of the said association withdrew themselves therefrom, declaring that they considered the said corporation as dissolved; and, further, that the said association determined, by resolve of the board, to divide the property and effects of the said society among the individual members thereof; that then the jury may find that there was a surrender of the corporate franchises and privileges of said society, and that the said corporation was dissolved.

And if the afore-going state of things existed, at the time charged in the said indictments when the offence was committed, they ought to find the traverser not guilty.” In this opinion, THBUSTON, Circuit Judge, seemed to acquiesce, and added that in his opinion the society, by its charter, was only authorized to license students, and those who were about to commence the practice, not those already in the practice. In consequence of this opinion of the court, Mr. John B.

Key, in opening his argument to the jury upon the evidence, said he should abandon the prosecution for practising without license, but not on the ground of defect of evidence. The jury after being out two days and one night, returned with a verdict of acquittal upon all the indictments.