to undue perils.' To the same effect is Todd v. Myres, 40 Cal. 357. Railroad Co. v. George, 19 Ill. 510, does not, as supposed, announce a contrary doctrine. There a person injured in a railroad collision brought suit for damages, and sought to recover, among other things, his medical attendance. Of course, he could not recover against the railroad company for all medical attendance he had chosen to have, but only for such as was necessary in curing his injuries. But where a physician is called by a party to treat him or his wife, and he takes charge of the case and attends from day to day, evidently in view of his responsibility for skillful and proper treatment, he must, in the first instance, determine how often he ought to visit the patient; and so long as the party employing him accepts his services, and does not discharge him or require him to come less frequently, or fix the times when he wishes him to attend, he cannot afterwards be heard to say the physician came oftener than was necessary. There was no proof that claimant came when he was forbidden to come, or that he was discharged and continued to attend thereafter. Deceased and his wife called claimant and accepted his services without question. Under the circumstances of this case, the instruction was proper. Some expressions in other instructions given for the claimant may have been slightly inaccurate, but they were substantially correct. The jury were fully instructed for defendant. The instructions asked by defendant and refused, so far as not embraced in given instructions, were either erroneous, or so involved or confusing as to warrant their refusal. We find in the record no reversible

1. An affidavit, by one seeking to secure the admission of copies of deeds, that the originals are not in his possession or control, and that he has "made inquiry" of the grantees in the deeds "and has not received any of them," and that the deeds have not been destroyed for the purpose of introducing copies, is insufficient as a foundation for the introduction of copies, since it does not state why he did not receive the deeds from the grantees, or that it was not within his power, by the process of subpoenas, to cause the grantees to produce the deeds.

2. Under Rev. St. c. 51, § 30, providing that a deposition taken before a notary out of the state shall be accompanied by a certificate of the official character of the notary, it is sufficient if such character be established at any time before the deposition is read in evidence.

3. In ejectment, defendants requested an instruction that to establish plaintiff's claim, founded on color of title and payment of taxes for seven years, it must appear that throughout

*

the entire period from the first to the last of such payments the land was vacant and unoccupied, "and if, during any portion of such period, any persons whatsoever were in possession of said real estate for any period of time whatever, your finding should be for defendant." Held, that it was not error to modify the instruction by striking out the portion quoted.

Appeal from circuit court, Mercer county; F. D. Ramsay, Judge.

Ejectment by Isaac N. Bassett and others against Robert Scott. From a judgment for plaintiffs, defendant appeals. Reversed.

Cooke & Main and Guy C. Scott, for appellant. Bassett & Bassett, pro se.

BOGGS, C. J. This is an appeal from a judgment entered in favor of appellees against appellant in an action in ejectment. The case was before us at a former term (Scott v. Bassett, 174 Ill. 390, 51 N. E. 577), and we then reversed the judgment, in favor of these appellees, there appealed from, for the reason that appellees had been permitted to introduce certified copies of the records of certain deeds, without having first accounted for the absence of the original deeds, as required by the statute providing for the introduction of such certified copies. It is urged-and, as we think, correctly-that the record in the present case discloses that like error again intervened in the trial which resulted in the judgment here appealed from. The court ruled that an affidavit filed by the appellee Isaac N. Bassett and an affidavit filed by the appellee Thomas W. Bassett were sufficient to lay the foundation for the introduction of certified copies of 10 certain deeds in the chain of appellees' title, and permitted such copies to be introduced in evidence. In the former decision of this case (Scott v. Bassett, 174 Ill. 390, 51 N. E. 577), we reviewed the decisions of this court relating to the requirements of the statute as to the proof necessary to be made in order to dispense with the production of original deeds. We need not repeat what was there said. It was not stated in either of the affidavits in the present record that any of the deeds were lost, or, in terms, that it was not in the power of the appellees to produce them.

It is insisted that the affidavits state facts from which the conclusion would arise that it was not within the power of the appellees to produce any of such deeds. The affidavit of Isaac N. Bassett is relied upon as disclosing the necessary facts. The statements of this affiant bearing on the point are: "Affiant states that he does not have in his possession, custody, or control any of the following deeds: [Here follow descriptions of the deeds, giving names of grantors and grantees.] Affiant states that he never had in his possession, custody, or control any of the said deeds, except the said deed to Randolph Keig, which affiant delivered to said Randolph Keig a short time after it was executed by the master in chancery. Affiant states that Randolph Keig died some fifteen or twenty years ago,

and affiant does not know where said deed now is; that he has made inquiry of F. C. Grable, Thomas H. Bras, Joe S. Bell, Omer H. Bell, James T. Bell, Ella R. Bell, and M. G. Reynolds [grantees in said deeds in question] for all deeds and tax receipts on said land, and he has not received any of the deeds above specified. Affiant further states that the original deeds and tax receipts above specified have not any of them, to the best of affiant's knowledge and belief, been destroyed or in any manner disposed of for the purpose of introducing copies or other evidence thereof in place of the original of said deeds and tax receipts." All that is made to appear by this affidavit is that the deeds are not and have not been in the possession, custody, or control of the appellees, and that the appellee Isaac N. Bassett "made inquiry" of the grantees in the deeds, and "has not received any of them," and that such deeds have not been destroyed or in any manner disposed of for the purpose of introducing copies. It appeared from this affidavit that said grantees, except Keig, were living and known to the affiant Isaac N. Bassett; that the appellee Isaac N. Bassett made inquiry of such grantees (presumably about the deeds, though it is not so stated), but had not received any of the deeds. Whether such grantees did not have the deeds, or whether they had them, and declined to deliver them to the appellee Isaac N. Bassett, or whether the said appellee sought to have them, or any of them, delivered to him or brought into the court, is not disclosed. The affiant states that he does not know where the deed to Keig "now is," but the affidavit is silent as to the knowledge of the affiant as to the whereabouts of any of the other deeds. The statement is inserted in the affidavit of the affiant Thomas W. Bassett that he does not know where any of the deeds are, and is omitted from the affidavit made by the appellee Isaac N. Bassett; said Isaac being the only party, so far as it appears from the affidavits, who had sought information, and had opportunity to know, as to the whereabouts of such deed. The affidavit of the appellee Thomas W. Bassett is, in substance, that none of the deeds are in his custody, possession, or control, and that he does not know where any of them are; that, to his knowledge and belief, they have not been destroyed or disposed of for the purpose of introducing secondary proof of their contents. It is not inconsistent with these affidavits that the originals of these deeds (except the one to Keig) are in the hands of the respective grantees; that the affiant Isaac N. Bassett knew such to be the fact; and that it was within the power of the appellees, by the process of subpoenas, to have caused the grantees to produce the deeds in court. In deciding this case when before us on the former occasion, we said (page 396, 174 Ill., and page 579, 51 N. E.): "A deed might not be in the manual possession of the plaintiff, and yet might be where the plaintiff could control its possession and its production. The stat

ute is that the preliminary proof must show that the original was lost, or not in the power of the party wishing to use it," etc. To hold the facts shown by these affidavite sufficient to authorize the introduction of secondary evidence of the contents of the deeds in question would be to encourage evasions of the salutary requirements of the statute. The dan gers to be apprehended from a relaxed or loose ruling on the point are well stated in Dickinson v. Breeden, 25 Ill. 186.

Other questions discussed in the briefs of counsel will arise on a future hearing of the cause, and for that reason should be decided.

Though the proviso to section 30 of chapter 51 of the Revised Statutes, entitled "Evidence and Depositions," provides that any deposition taken before a notary public out of the state shall be "accompanied" by a certificate of the official character of the notary, yet, if such certificate does not accompany the deposition, it may be produced in court at the hearing, and the official character of the notary thus and then established. The true construction of the statute only requires that the official character of the officer taking a deposition shall be established before the deposition is permitted to be read in evidence.

Appellant complains of the action of the court in modifying instruction No. 10. The instruction, as asked, read as follows: "That so far as the claim of plaintiffs, founded upon color of title and payment of taxes for seven consecutive years, while the land was vacant and unoccupied, and possession thereafter taken, is concerned, to establish title on that basis it must appear, from a preponderance of the evidence, that throughout the entire period, from the first to the last of such payments of taxes, the land was vacant and unoccupied; and if during any portion of that period either the plaintiffs, or any of those through whom they claim, or any other person or persons whatsoever, were in possession of said real estate for any period of time whatever, then your finding should be for the defendant, so far as that claim of the plaintiffs is concerned.” The court detached that portion of the instruction which appears in italics, and gave the remainder as asked. One ground of a right of recovery relied upon by appellees was payment of taxes upon the premises in question for seven successive years under a claim and color of title, and that the land was vacant and unoccupied during that period. There was proof tending to show temporary entries on the land by others during that period, and, appellant contends, also acts of possession by others. In Walker v. Converse, 148 Ill. 622, 36 N. E. 202, we said (page 630, 148 Ill., and page 204, 36 N. E.): "Entries upon land which are merely temporary, and made without claim of right, or with the intention of excluding others therefrom, such as camping thereon,

or leaving a chattel thereon, or occasionally building a haystack thereon, do not constitute actual possession, so as to change the character of vacant land to that of land actually possessed or occupied." That portion of the instruction excluded by the court was well calculated to mislead the jury to understand that any entry made upon the lands, or any act of possession thereof, however temporary in point of time, and whether with any claim of right to possession or with intent to exclude others, would destroy the character of the land as vacant and unoccupied lands. The instruction as given, as well as other instructions which were given, correctly advised the jury as to the true rule by which they were to be guided.

The court refused to give instruction No. 8 asked by appellant. The appellees predicated right of recovery, also, on alleged actual possession of the land under claim and color of title made in good faith, and payment of taxes thereon for another period of seven years. This instruction, if given, would have misled the jury as to the effect, under the doctrine of the case of Walker v. Converse, supra, of mere trespasses or temporary entries on the land, or isolated acts of possession thereof, during the period in which the appellees claimed to have been in actual possession thereof. For the reason indicated, the judgment must be, and is, reversed, and the cause remanded. Reversed and remanded.

(186 Ill. 15)

In re McCULLOUGH, Auditor. (Supreme Court of Illinois. June 21, 1900.) TAXATION-SCHOOLS-EXEMPTIONS-TITLE TO PROPERTY.

Under Rev. St. c. 120, § 2, exempting from taxation all property of institutions of learning, real property adjoining a school, used as a playground, and forming a constituent part of the school, but the legal title to which is in one for the use of the congregation of the parish, is not exempt, it being essential that the title to property exempted should be in the school, or in some one holding it in trust for the school.

Petition by J. L. Spaulding seeking to have certain property declared exempt from taxation. There was an order declaring the property exempt, and J. S. McCullough, auditor, certifies objections. Order reversed.

Duncan & Doyle, for petitioner. E. C. Akin, Atty. Gen. (C. A. Hill and B. D. Monroe, of counsel), for defendant.

PER CURIAM. The board of review of Lasalle county, on a petition filed by Thomas J. Keating, as agent for John L. Spaulding, Catholic bishop of Peoria, held lots Nos. 5, 8, and the N. 2 of 9, block 35, State's addition to the city of Ottawa, to be exempt from taxation. The conclusion of the board was based upon the following finding of facts: "That the real estate described in the com

plaint hereinabove mentioned is a part of the property of the institution of learning known as 'St. Columba's School for Boys in the City of Ottawa'; that the legal title to the real estate mentioned is in John L. Spaulding. Catholic bishop of Peoria; that the school mentioned is conducted by said John L. Spaulding, bishop of Peoria, as an institution of learning; that the same is not leased by such institution, or otherwise used with a view of profit; that it is immediately adjoining the school-house building, and is used by the scholars attending said school as a playing ground, and is necessary to said institution of learning as a constituent part thereof; that the school conducted on said premises is an absolutely free school, the scholars attending same regardless of race, color, or religion; that the school is conducted by said bishop of Peoria through his agent in the city of Ottawa, viz. Thomas S. Keating, rector of St. Columba's parish, in the city of Ottawa; that it is supported by voluntary contributions from the citizens of Ottawa; that it has been a free institution of learning more than seven years last past, and that it is intended to maintain the same as such an institution for all time in the future." The petition alleged the title to the property to be in John L. Spaulding, Catholic bishop of Peoria, for the use of the congregation of St. Columba's parish. The auditor of public accounts, being of the opinion the property was not exempt from taxation, certified his objections to this court. The question presented is whether the facts found by the board of review constitute grounds of exemption from taxation, under the provision of the first clause of section 2 of chapter 120, Rev. St., entitled "Revenue," which provides, viz.: "All public school houses, all property of institutions of learning, including the real estate on which the institutions are located, not leased by such institutions or otherwise used with a view to profit," shall not be liable to assessment for taxation. The facts stated are not sufficient to bring the property within the description of a "public school house." Montgomery v. Wyman, 130 Ill. 17, 22 N. E. 845; In re McCullough (Ill. Sup.; Dec. term, 1899; Cartwright, C. J.) 55 N. E. 685. Nor does it appear the said real estate is the property of an institution of learning. The legal title is in John L. Spaulding, as Catholic bishop of Peoria, according to the finding of the board of review. If the statements of the petition as to the state of the title be accepted, the title rests in the said Spaulding as Catholic bishop of Peoria, for the use, not of the said St. Columba's School, but of the congregation of St. Columba's parish of said church. It is essential to the exemption of property, as being the property of an institution of learning, that the title to the property shall be in the institution of learning, or in some society or congregation holding and authorized by law to hold the title for the institution of learning, or in some person or corporation in trust for the said institution of learning. Montgomery v. Wyman, supra; In

re McCullough, supra. The board of review was in error in ruling the property was not liable to assessment for taxation. The order of the said board is therefore reversed. Order reversed.

(186 Ill. 139)

PEOPLE ex rel. RAYMOND v. CHICAGO & N. W. RY. CO.

(Supreme Court of Illinois. June 21, 1900.) SCHOOLS AND SCHOOL DISTRICTS-BUILDING SCHOOL HOUSES-SUBMISSION TO POPULAR VOTE-LEVY OF TAX-AUTHORITY OF BOARD.

In accordance with Hurd's Rev. St. 1889, c. 122, art. 5, § 31, and Id. art. 6, § 10, cl. 5, the board of education of a school district submitted to a vote the question of building a new school house, and the issuance of a certain amount of bonds which did not exceed the limit of article 9, § 1, of the same chapter, restricting the power of the district to borrow, and the vote in favor thereof did not express a limit of expenditures for the building. Held, that the board did not exceed its authority in levying a tax for the same purpose in addition to an amount on hand available for that purpose, and the proceeds received from a sale of the bonds; the levy being within the percentage limit of article 8, 81, restricting the annual levy which the board might make for building purposes to a certain per cent. on the assessed valuation of the taxable property of the district.

Appeal from Cook county court; O. H. Gilmore, Judge.

Application by the people, on the relation of S. B. Raymond, for judgment against the Chicago & Northwestern Railway Company for the amount of a levy against its property for school purposes. From a ruling of the county court sustaining objections to such judgment, relator appeals. Reversed.

Otto Raymond Barnett, for appellant. E. E. Osborn (A. W. Pulver and Lloyd W. Bowers, of counsel), for appellee.

BOGGS, C. J. Glencoe school district, in the county of Cook, owned block 25 in the village of Glencoe, which had been selected as the location of the site for a new schoolhouse building by the voters of the said district at an election duly and legally called for the purpose of submitting that question to the electors of that district. In pursuance to the prayer of the petition required in such cases by the provisions of the fifth subdivision of section 10, art. 6, c. 122, entitled "Schools" (Hurd's Rev. St. 1889, p. 1239), the board of education of said district submitted to the voters of the district, at an election called to be held on the 5th day of February, 1898, the proposition to build a new school house on said block 25, at which election a majority of the electors voted for the proposition to build said school house on said block. The call for the election also submitted to the voters the proposition that bonds of the district in the sum of $14,500 should be issued. The call specified that $5,000 in amount of these bonds were for the

purpose of refunding antecedent existing indebtedness, but did not specify the purpose for which the remainder of said bonds, $9,500, were to be issued. The proposition to issue the bonds as submitted was also carried at said election. For some reason not clearly disclosed, the proposition to issue the bonds of the district as specified in the proposition for the first election was resubmitted to the electors of the district at an election held on the 2d day of April, 1898, which election resulted in favor of the proposition authorizing the issue of the said amount of $14,500 in bonds, of which amount $5,000 of said bonds in value were denominated refunding bonds, but the object or purpose to which the other bonds in the value of $9,500 were to be devoted was not in any manner indicated in the proposition upon which the electors were called to vote. There was nothing, therefore, in the language of either of the propositions upon which the electors were called to vote, to authorize the assumption upon which the appellee in the greater degree rests its argument,-that the electors voted in favor of building a school house and of issuing bonds with the understanding that the cost of the proposed school house should not exceed the sum of $9,500; that being the sum or amount of the bonds authorized to be issued, in addition to the bonds to be issued for the purpose of refunding the then existing debt of the district. Acting in virtue of the result of the said election and of the authority conferred upon them by the statute, the board of education of said district contracted to have erected, and caused to be erected, a new school house on said block 25, at a cost of about $21,700. The board of education sold the bonds in the sum of $9,500 for $9,700 net, which sum, together with the sum of $3,000 then in their treasury, they devoted to the purpose of building the said school house, and authorized and directed the levy of a tax upon all taxable property of the district to raise the sum of $8,000 for "building purposes." Such levy did not exceed 3 per cent. of the assessed value of the taxable property in the district, which was the rate per cent. then limited by the statute for that purpose. This levy at the requisite rate per cent. was duly extended against the property of the appellee company situated in the district. The appellee company interposed objections to the application of the relator collector for a judgment against its property for the amount of such levy. The county court sustained the objections, and the correctness of that ruling is presented by this appeal.

The voters of the school district, at the election whereby they determined to build the school house, did not express by their vote a limit of expenditures for that purpose, nor was any such expression of the will of the voters involved in the election afterwards held, authorizing the issue of the bonds of

the district. The levy must therefore be upheld, unless the board of education were otherwise lacking in authority to direct such levy to be made. The vote of the electors empowered the board of education to erect a new school house. Hurd's Rev. St. 1889, c. 122, art. 5, § 31, and article 6, § 10, cl. 5. Said section 31 does not require that the cost of the contemplated school house shall be submitted to the electors, but only the question whether a new school house shall be erected. Under the authority of the election here under consideration the character of the building must answer the demands of the district, and also the amount to be devoted to that purpose is committed to the judgment and discretion of the board of education, subject only to the limitation found in the statute as to the power of the board to obtain the means wherewith to construct the building. Section 1 of article 8 of said chapter 122 restricts the annual levy which the board may make for building purposes to a levy of 3 per cent. (now reduced by a later enactment) on the assessed valuation of the taxable property of the district, and section 1 of article 9 of the same chapter prohibits the board from borrowing money for the purpose of building a school house unless authorized so to do by a vote of the electors of the district, and other provisions of the same section 1 restrict the power of the voters to authorize the board to borrow in any one year a sum exceeding 5 per cent., including existing indebtedness, of the taxable property of the district. These provisions of the statute unmistakably establish that the extent of the authority intended to be vested in boards of education had received the consideration of the general assembly, and to ingraft a further limitation upon the power and authority of the board by mere construction would be to exercise a legislative, not a judicial, function. In the case at bar the district had in its treasury the sum of $3,000 which was applicable to the expense of erecting a school house. The annual levy which the board was authorized to make for building purposes would produce about $8,000. In order to procure a school house which would cost $20,000 it was necessary that about $9,500 more should be secured. This amount could only be obtained through a loan negotiated under the authority of a vote of the electors. The board called an election for the purpose of securing the requisite authority to borrow that sum. The electors responded, and directed the loan to be made. If the call for this election had been so framed as to limit the total expenditures in the matter of constructing a school house to the amount of the aggregate of the bonds authorized to be issued, a different question as to the validity of the levy of an additional amount for building purposes might be presented. We think the levy made by the board of education for building purposes was fully authorized and entirely valid. The county court erred in holding otherwise, and its judgment must be

and is reversed, and the cause remanded, with directions to overrule the objections. Reversed and remanded, with directions.

(186 Ill. 156)

WEST SIDE AUCTION HOUSE CO. v. CON-
NECTICUT MUT. LIFE INS. CO.
(Supreme Court of Illinois. June 21, 1900.)
LANDLORD AND TENANT-ACTION FOR RENTS

PLEADING VARIANCE EXECUTION OF

LEASE RATIFICATION-TRIAL-PEREMPTORY

INSTRUCTIONS.

1. Where a lease purporting to be between two corporations is signed by a party as secretary with a seal of one of the companies, its execution is prima facie evidence that it was under authority of the corporation, and casts on the parties objecting the burden of proving it was not so executed.

2. A party who occupies leased premises, and pays the rent pursuant to the lease, ratifies its execution.

3. Where a lease is between corporations described as being "of Hartford," and "of the city of Chicago, county of Cook, state of Illinois," a declaration in an action on the lease, omitting from the titles the additional words "of Hartford" and "of the city of Chicago," etc., is not at variance with the lease, as such words are immaterial in the description of the titles.

4. The execution and delivery of a lease to a corporation as such, being prima facie evidence of the corporate existence, no proof in answer to plea of nul tiel corporation in an action for the rent is necessary until such evidence is rebutted.

5. Where, in an action for rent, complainant makes a prima facie case, and there is no evidence to prove the defenses offered, a peremptory instruction for complainant is proper. Appeal from appellate court, First district.

Action by the Connecticut Mutual Life Insurance Company against the West Side Auction House Company. From a judgment for plaintiff, defendant appeals to the appellate court, and from a judgment of affirmance (85 Ill. App. 497), defendant appeals. Affirmed.

W. A. Phelps and J. B. Muir, for appellant. E. Parmalee Prentice, for appellee.

WILKIN, J. This is an action in assumpsit by appellee against appellant, begun in the superior court of Cook county, to recover rent, at $200 per month, under a lease held by appellant, as tenant of appellee, for certain premises in Chicago. Appellant, on the last of October, 1895,-seven months before the expiration of the term,-sent to appellee the keys of the building, accompanied by the following letter: "Chicago, October 30, 1895. Isham & Prentice, CityGentlemen: I return you herewith by bearer the keys (seven) of No. 209 and 211 West Madison street, Chicago, city. The premises are in such bad condition, and as you refuse to make them tenable, I cannot make any use of them. I might add, when you rent the building I shall look for a reasonable compensation for the fixtures, etc., which are mine. Yours, truly, John J. Walls." To this letter the appellee, by its attorney, on the