#### Anton Junker v. Nicholas Kuhnen.

Statute of Limitations.—An action of debt to recover against a stockholder of an insurance company upon the liability created by section 16 of the General Insurance Law of 1869. Held, that the liability sought to be enforced is in the way of a penalty, and to the recovery of such penalty the two year Statute of Limitations is a good plea.

Eeeob to the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.

Opinion filed March 31, 1886.

Mr. Feancis Laokneb and Mr. Sidney C. Eastman, for plaintiff in error;

cited Diversey v. Smith, 103 Ill. 391; Weid, enger v. Spruance, 101 Ill. 287; Gridley v. Barnes, 103 Ill. 211.

*479Moran, J.

This was an action of debt commenced November 22, 1875, to recover against plaintiff in error, as a stockholder of the Germania Insurance Company of Chicago, upon the liability created by section 16 of the General Insurance Law of 1869. The declaration alleges debt against the company; that the company is insolvent; that the whole amount of capital of the corporation never was paid in ; that no certificate of such payment was given, or recorded as required, that in fact no more than half the stock had been paid in; and stating cause of action against defendant, alleges: “That on and after said 27th day of July, A. D. 1871, and at the time of the accruing of plaintiff’s said claim, and at the time of the insolvency of said company, the defendant was a corporator and stockholder in said corporation, and had subscribed for and owned his shares of the capital stock thereof at the price named of one hundred dollars for each share, amounting to the sum of one thousand dollars.”

Plaintiff’s loss occurred October 9, 1871.

Defendant below pleaded the two-year Statute of Limitations by a plea in proper form, and to such plea the court sustained a demurrer, and rendered judgment for amount claimed as damages.

The liability sought to be enforced against plaintiff in error is in the way of a penalty. Weidenger v. Spruance, 101 Ill. 278 ; and to the recovery of such penalty, the Statute of Limitations is a good plea. Gridley v. Barnes, 103 Ill. 211. It was error to sustain the demurrer, and the cause must therefore be reversed and remanded.