plaintiff's arm was injured tended to make it useless and stiff in the joints and wanting in flexibility, etc. But there was no proof to show that plaintiff purposely failed to use her arm, or neglected to exercise it in a proper way, so far as she was able to do so. In the second place, the substance of this instruction was embodied in the seventh instruction given for the defendant. On the motion for new trial appellant read certain affidavits setting up the discovery of what was claimed to be new evidence. It is contended that the court erred in not granting the motion for the reasons stated in the affidavits. The newly-discovered evidence is merely cumulative, and not conclusive in its character. A verdict will not be set aside to permit such evidence to be introduced. Kendall v. Limberg, 69 Ill. 355. We are of the opinion that the trial court committed no error either in refusing the instructions complained of or in overruling the motion for new trial. The judgment of the appellate court is affirmed. (124 Ill. 628) WILSON et al. v. SCHNEIDER. (Supreme Court of Illinois. May 9, 1888.) EXECUTION AGAINST ESTATES OF DECEDENTS-TIME FOR ISSUING. Under Rev. St. Ill. c. 77, § 6, which provides that no execution shall issue on any judgment after seven years from the time the same becomes a lien unless the judg ment be revived, a creditor who has his claim allowed against the estate of his deceased debtor, and who, by the provisions of Rev. St. Ill. c. 77, § 27, is considered a judgment creditor for the purposes of redemption from a sale of the real estate of the debtor, must issue the special execution provided for therein as an essential requirement in the proceeding for redemption within seven years from the date of the allowance of uis claim, or his right to redeem is gone. Error to circui. court, Iroquois county; ALFRED SAMPLE, Judge. MAGRUDER, J. Jonn Arends, now deceased, executed a mortgage in his Ine-time to Charles A. Wilson and Luppe I. Arends upon E. S. W. section 28, township 28 N., range 10 E. of third P. M., in Iroquois county. After his decease a bill to foreclose was filed by the mortgagees in the circuit court of said county against his heirs and the administrator of his estate and certain parties in possession, named Marie Schneider and Antoine Schneider, and others. It does not appear that any of the creditors, whose claims were allowed against the estate, were made defendants to the bill. Decree of sale was entered in the foreclosure suit on February 24, 1886, and, in pursuance thereof, the premises were sold on May 10, 1886, to Joseph Evans. The usual certificate of purchase was issued to Evans, and the master's report of sale was confirmed. The 15 months for redemption expired on August 10, 1887, and the master's deed was executed and delivered to the purchaser on August 29, 1887. The estate of Arends proved to be insolvent. On January 19, 1880, Comstock & Co. procured the allowance of a claim against the estate in the probate court of Iroquois county. On August 9, 1887, 7 years 6 months and 20 days after the allowance of the claim, Comstock & Co. caused a special execution to be issued by the clerk of the probate court to the sheriff of the county for the purpose of redeeming from the foreclosure sale. The execution came into the sheriff's hands on the same day, and Comstock & Co. at once paid him the amount necessary to redeem. The certificate of redemption was executed and recorded on said 9th day of August, 1887, and, after being duly advertised, the premises were sold on September 9, 1887, to Comstock & Co., who then paid to the sheriff the redemption money and interest, and received from him the usual sheriff's deed. As we understand the facts, notice was given of the attempted redemption by Comstock & Co. to the master and to the purchaser at the foreclosure sale before the execution to such purchaser of the master's deed above mentioned. The controversy is between the creditors, Comstock & Co., and the purchaser, Evans. The question involved is as to the right of a creditor whose claim has been allowed against the estate of a deceased debtor, to redeem from the sale of the debtor's land after the expiration of seven years from the allowance of the claim. The circuit court decided against such right. Section 27, c. 77, Rev. St., entitled "Judgments, Decrees, and Executions," provides that, "for the purpose of redemption from the sale of real estate of a deceased debtor, any person, whose claim shall have been probated and allowed against the estate of such deceased debtor, shall be considered a judgment creditor, and, for the purpose of enabling such creditor to redeem from such sale, it shall be lawful for the clerk of the court, wherein letters testamentary or of administration were granted, to issue special execution to the sheriff of the proper county, commanding him, upon redemption being made, to levy upon and sell the premises so sought to be redeemed, and like proceedings shall be had as upon other executions." This section 27 is a part of the act of March 22, 1872, entitled as aforesaid. It went into effect at the same time with the rest of the act. In order to ascertain its meaning it must be construed in connection with the other sections which precede and follow it. The person whose claim has been allowed against the estate is to be considered a "judgment creditor" in the sense in which the term “judgment creditor" had already been used in the preceding sections. As a creditor who had obtained his judgment in the life-time of the debtor had been required to have execution issued, and a levy and sale made, so a creditor obtaining judgment against the estate of the deceased debtor was also required to proceed in the same way. The object of section 27 was to give the judgment creditor of the deceased debtor the same right of redemption which had just been given to the judgment creditor of the living debtor, and to prescribe for the former the same mode of effecting such redemption as had been prescribed for the latter. In both cases the issuance of an execution is an essential requirement in the proceeding for redemption. Whatever limitation the act may contain as to the time within which an execution must be issued, applies as well to the special execution named in section 27 as to the ordinary fi. fa., mentioned in section 20. Turning to section 6, we find this language: "No execution shall issue upon any judgment after the expiration of seven years from the time the same becomes a lien except upon the revival of the same by scire facias," etc. The words "any judgment” are broad enough to include the probated claim, which is to be considered a judgment by the terms of section 27, and the special execution provided for in that section is certainly comprehended within the meaning of the words "no execution." We are therefore of the opinion that the restriction laid down in section 6 was intended to apply to the claims and special executions referred to in section 27. * * In the present case the judgment was rendered on January 19, 1880, and the special execution was issued more than seven years thereafter. That execution must be regarded as having been void, and of no effect, if the judgment of Comstock & Co. can be regarded as having become a lien at the date of its rendition. By the terms of section 6 the period of seven years begins with the time the judgment "becomes a lien." Section 1 of the act provides "that a judgment of a court of record shall be a lien on the real estate of the person against whom it is obtained * from the time the same is rendered or revived for the period of seven years, and no longer." It is true that the judgment in favor of the claimant against an estate is not that he recover his damages and costs, and have execution therefor, but that the amount due him be paid in due course of administration by the administrator, etc. But the creditors who prove up their claims against an estate have a right to have the land of the deceased debtor subjected to the payment of such claims in case of a deficiency of personal assets. Mure, the administrator, files his petition to sell the land within a proper time. The purchaser at the admin istrator's sale will hold the property as against the grantee of the heir. This right of the creditors of an estate to have the realty sold to pay their debts is in the nature of a lien upon the land. In Vansyckle v. Richardson, 13 Ill. 171, we said: "The statute, in effect, reserves a lien on the lands of an intestate, to secure the payment of any excess of indebtedness beyond the proceeds of the personal estate. This lien is to be enforced by the administrator for the benefit of the creditors generally." McCoy v. Morrow, 18 Ill. 519; Bursen v. Goodspeed, 60 Ill. 277; Myer v. McDougal, 47 Ill. 278; Wheeler v. Dawson, 63 Ill. 54; Reed v. Colby, 89 Ill. 104; Furlong v. Riley, 103 Ill. 628. In Bishop v. O'Conner, 69 Ill. 431, it is said: "It is not accurate to say that the lands are charged, but rather that they are liable to be charged," etc. While the liability of the lands to be charged with the debts of the decedent may not amount to a lien within the technical meaning of that word, yet the creditor may so enforce this liability, through the administrator, as against purchasers and incumbrancers holding under the heir, that he derives from it all the advantages of a lien. This being so, there is no reason why a creditor, having a judgment against the estate of a deceased debtor, should have a longer time for the enforcement of his rights against the debtor's land through the medium of an execution than is awarded to a creditor obtaining his judgment in the life-time of the debtor. Why should the former be assimilated to the latter as to the mode in which he may redeem, and not as to the time within which he must redeem? If the lien of the latter's judgment is for only seven years, so that he cannot issue an execution after that time for the purpose of redemption, why should not the former's right to reach the debtor's land, not through administration, but through an execution issued for the purpose of redemption, be also limited to seven years? There would be no justice in making any distinction between the two classes of creditors so far as the exercise of the right to redeem is concerned. We have held that by analogy to the duration of a judgment lien the administrator must file his petition to sell within seven years from the death of the owner, unless such facts are shown as furnish a satisfactory explanation of the delay. Reed v. Colby, supra; McCoy v. Morrow, supra. Even if this rule were applied in the present case, no good reasons are given why the petition to sell the mortgaged premises may not have been filed within the seven years. The record does not show when Arends died, nor when letters of administration were taken out upon his estate. The proof only furnishes the date of the allowance of the claim of Comstock & Co. But although the petition to sell may be filed after seven years have passed since the death of the intestate, if the delay is satisfactorily explained, yet we are of the opinion that, when the owner of the probated claim desires to redeem, he must take out execution within seven years from the time his claim is allowed, independently of what reasons may or may not exist for the delay. His right to redeem is derived solely from the statute. It does not exist outside of the statute. He must therefore follow the proceeding pointed out in the statute, and in the mode there prescribed. Other judgment creditors have a lien for only seven years from the time judgment is rendered, and cannot issue execution for redemption purposes after the lapse of that period. In like manner the creditor, proving his claim against the estate of the deceased debtor, can only have a charge upon or liability against the land, so far as the remedy by redemption is concerned, for seven years from the time his claim is allowed, and cannot issue the special execution provided for in section 27 after that time. This was the view of the court below, and we think its decision was correct. The judgment of the circuit court is affirmed. (124 Ill. 666) COAL RUN COAL Co. v. FINLEN. (Supreme Court of Illinois. May 9, 1888 ) 1. CONSTITUTIONAL LAW-TAXATION-CORPORATIONS. Rev. St. Ill. c. 120, § 3, subd. 4, which provides for the assessment by the state board of equalization of the capital stock, including the franchise, of corporations organized for pecuniary profit, except corporations organized for manufacturing purposes or for the publishing of newspapers or for the improvement of stock, which are to be assessed as individuals, is not in conflict with Const. Ill. art. 9, § 1, providing that the legislature shall have power to tax corporations by "general law uniform as to the class upon which it operates, " as the legislature is not thereby prohibited from classifying corporations for taxation. 2. TAXATION-ASSESSMENT BY STATE BOARD-REVIEW. The action of the state board of equalization in assessing the capital stock and franchises of a corporation will not be reviewed unless fraud is disclosed. Appeal from circuit court, La Salle county; DORRENCE DIBELL, Judge. The statute referred to in the opinion is section 3 of chapter 120 of the Illinois Revised Statutes. Ball & Strawn, for appellant. Mouloney & Stead, for appellee. * * * CRAIG, J. This was a bill brought by the Coal Run Coal Company to enjoin the county clerk of La Salle county from extending taxes upon the assessed value of the capital stock and franchise of the company, as assessed and returned by the state board of equalization for the year 1883. Two questions are presented and relied upon to reverse the decree dismissing the bill: First, that division 4 of section 3 of the revenue act, which relates to the taxation of the capital stock of companies and associations in this state, as amended in 1879, violates the rule of uniformity provided for by section 1 of article 9 of the constitution of this state; second, that the state board of equalization of this state, in the application of the rule adopted by them for the taxation of capital stock of corporations, have violated this rule of uniformity. Section 1 of article 9 of the constitution provides that the general assembly shall have power to tax peddlers, auctioneers, and persons or corporations owning or using franchises and privileges in such manner as it shall from time to time direct by general law uniform as to the class upon which it operates. Division 4 of section 3 of the revenue act is as follows: "Fourth. The capital stock of all companies and associations now or hereafter created under the laws of this state (except those required to be assessed by the local assessors as hereinafter provided) shall be so valued by the state board of equalization as to ascertain and determine, respectively, the fair cash value of such capital stock, including the franchise, over and above the assessed value of the tangible property of such company or association. Said board shall adopt such rules and principles for ascertaining the fair cash value of such capital stock as to it may seem equitable and just; and such rules and principles, when so adopted, if not inconsistent with this act, shall be as binding and of the same effect as if contained in this act, subject however to such change, alteration, or amendment as may be found from time to time to be necessary by said board: provided, that in all cases where the tangible property or capital stock of any company or association is assessed under this act the shares of capital stock of any such company or association shall not be assessed or taxed in this state. This clause shall not apply to the capital stock, or shares of capital stock, of banks organized under the general banking laws of this state: provided, further, that companies and associations organized for purely manufacturing purposes, or for printing, or for publishing of newspapers, or for the improving and breeding of stock, shall be assessed by the local assessors in like manner as the property of individuals is required to be assessed." It will be observed that under the section supra the capital stock, including the franchise, of all corporations organized for pecuniary profit, is required to be assessed by the state board of equalization, except corporations organized fo * purely manufacturing purposes, or for printing or for publishing of newspa pers, or for the improving and breeding of stock, which are to be assessed by the local assessors in the same manner as the property of individuals. This difference in the assessment of different corporations organized under the statute, it is said, renders the section of the statute obnoxious to that clause of the constitution which authorizes the general assembly to tax corporations owning or using franchises in such manner as it shall direct by general law uniform as to the class upon which it operates. This provision of the constitution was before us in Porter v. Railroad Co., 76 Ill. 579, and in remarking upon it we then said: "It surely cannot be doubted that the requirements that the board of equalization shall ascertain and determine the fair cash value of the capital stock, including the franchise, of all companies and associations now or hereafter created under the laws of this state over and above the assessed value of the tangible property of such company or association, is a general law, or that it is uniform as to the class upon which it operates. * * It is not required, as seems to be thought by some of the counsel with whose arguments we have been favored, that the legislature shall, in providing for the taxation of corporations, under the last clause of the section referred to, designate the precise amount which the corporations shall pay, and that this shall be the same for each corporation without regard to the value of the franchise or privileges enjoyed, nor that such taxation shall be of like character with that which may be imposed on inn-keepers and others pursuing the particular vocations named. It is only required that they shall be taxed in such manner as the general assembly shall from time to time direct by general law, and the only uniformity required is as to the class upon which such general law shall operate. It is therefore left entirely to the legislature to determine whether corporations shall be taxed only on their tangible property; on the amount of their capital paid in; on the amount of their gross receipts; or, as in the present instance, on the value of their tangible property and on the fair cash value of their capital stock, including their franchises, over and above the assessed value of their tangible property, subject merely to the limitation that it shall be directed by general law, uniform as to the class upon which it operates." Adhering to what was said in regard to the meaning of the section of the constitution under consideration, we do not regard the section of the statute involved in conflict with the constitution. The section of the constitution undoubtedly requires the law the general assembly may enact to be a general law, and uniform as to the class upon which it operates; but this does not prohibit the legislature from classifying the corporations for taxation. We see nothing in the constitution which prohibits the legislature from providing one method for determining the value of the capital stock, including the franchise, of a railroad company; another method for a mining corporation; and still another for manufacturing corporations. We see no clause in the constitution which prohibits the legislature from placing certain specified corporations in one class and providing a uniform method of assessment for that class, and placing certain other specified corporations in another class and providing a uniform manner of assessment for that class. There is no language whatever used in the clause of the constitution which forbids the legislature from forming a class, and after the class is formed it is declared that the general assembly shall have power to tax corporations owning franchises in such manner as it shall direct. How shall it direct? By general law uniform as to the class. What object the general assembly may have had in placing mining corporations in one class for assessment and corporations organized for manufacturing, printing, or for breeding of stock in another classs it is not for us to inquire. So long as the statute does not conflict with the original law it will be upheld whether wise or unwise. As to the second branch of the case upon which relief is predicated, but little need be said. In the argument it is said that appellant corporation ought |