#### The Peshtigo Co. v. Great Western Telegraph Co., use of F. A. Helmer, Receiver.

1. Ultra Vires—Subscriptions for Telegraph Stock by a Lumber Company.—A corporation authorized to conduct a lumber business is .legally incapable of being a stockholder in a telegraph company.

2. Practice in Appellate Court—Entry of Final Judgment.—Where a case is tried in the court below without a jury, judgment may be entered upon a finding of the facts in the Appellate Court.

Memorandum.—Action on a subscription for stock. Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding. Heard in tins court at the October term, 1893, and reversed.

Opinion filed December 21, 1893.

The statement of facts is contained in the opinion of the court.

Judd, Ritchie & Esher, for appellant.

Thomas J. Sutherland, attorney for appellee.

Opinion of the Court,

Gary, J.

The appellant is a corporation, under a Wisconsin charter, to conduct a lumber business. We need not go into particulars as to its character further than to say that there is in *625it nothing having the remotest allusion to doing a telegraph business, or buying or subscribing for shares in a telegraph company.

Unless ultra vires has ceased to be a defense under any and all circumstances, it is a good defense here for the Peshtigo Company, sued upon an assessment upon shares subscribed for by it. The fact that the court made the assessment upon all stockholders as a class, does not charge the appellant, if it was not a stockholder; and if it be legally incapable of being a stockholder by subscription for shares, then it is not a stockholder.

See the argument and authorities in People v. Chicago Gas Trust Co., 130 Ill. 268, at p. 283, et seq.

The ease having been tried by the court without a jury, final judgment will be entered here for the Peshtigo Company upon a finding of the facts. The judgment of the Circuit Court is reversed.