be at liberty to go in and be examined lying upon defendants' representations pro interesse suo,and that inquiry might that they had an ample capital, umimbe made what interest they had in the goods, chattels, debts, credits, rents and profits mentioned in the order of the 29th of July.

Held, For the purpose of taking possession and protecting the business against creditors generally, I think the receiver was in possession, and it was wrong to disturb him; and when the sheriff was informed of the appointment on the 5th of August he ought to have been withdrawn.

I am of opinion that when an individual is named in the order he is entitled to possession as from the date of the order, and is the officer of the court from that time.

paired. At the expiration of the credit defendants sought an extension, and offered their notes a thirty, sixty, and ninety days, renewing their representations as to unimpaired capital. On the strength of these representations plaintiffs gave the extension and took the notes The first note was paid. but before the maturity of the second, plaintiffs received notice to attend a meeting of defendants' creditors at which they were offered forty cents in composition of the indebtedness.

Plaintiffs declined the offer and brought immediate suit, and obtained an order for defendants' arrest, because of fraud. On the trial the the two reI consider Mason as being in posses- maining notes were surrendered up for sion from the date of his appointinent, cancellation, and the papers on which and the case of the execution creditors the order of arrest had been granted consequently fails, and, as they might were put in evidence. Plaintiff's then have come to the court instead of taking out the interpleader summons, they must pay the costs.

Opinion by Malins, V. C.

TERMINATING CREDIT.

PLAINT.

GEN'L TERM. SUPREME COURT,

offered to show that the notes had been taken upon fraudulent representations as to defendants' solvency, but the offer was refused on the ground that there was no allegation of fraud in the comCOM plaint. Complaint was dismissed except as to amount of certain goods sold after the notes were given. On appeal.

FIRST

DEPT. Claflin et al, applts. v. Taussig et al, respts.

Decided March 31, 1876. Where sale is influenced by fraudulent representations, even though on credit, it is unnecessary to allege fraud in complaint.

Seller may terminate the credit and sue on the debt at once.

Appeal from judgment rendered at due, by averring that they were acceptcircuit.

During the years 1873 & '74, plaintiffs sold goods to defendants on credit, re

ed by reason of fraudulent representations. It it is well settled that, when a sale is influenced by fraudulent rep

This was a bill in equity seeking to restrain the collection of certain taxes upon the ground of illegality, erroneous assessments, inequity, and that the law was unconstitutional.

resentations, even if marked by a cred- United States for the Northern Disit which has not expired, it is unneces-trict of Illinois. sary to allege fraud in the complaint (27 Barb., 652; 34 id., 89; 32 id., 322; 4 Keyes, 120). The presence of that element destroys the credit at the op tion of the seller, makes the debt due immediately if he so elect, and enables him to sue at once for its recovery upon an allegation of goods sold and delivered.

And when the defense disclosed the agreement to extend, plaintiffs were not bound by the rules of pleading to give notice that they would assail it on the trial.

It was the defendants' business to be prepared to sustain the agreement, if necessary, by evidence showing its binding force.

Judgment reversed and new trial

ordered.

The act of the legislature of Illinois of March 30, 1872, under which the taxes complained of were assessed, makes special provisions for the taxation of railroads and other corporations, the main feature of which is the purpose of leaving to each county, city, and town the power of assessing for taxation what is properly local in the same manner that other similar property is taxed in that municipality, and at the same time to subject to like taxation on some fair basis that which is not in its nature so clearly local, but which, by reason of its being appurtenant or in

Opinion by Brady, J.; Davis, P. J.,cident to the railroad, should pay its and Daniels, J. concurring.

share to the state, and to all the counties, towns, and cities through which any part of the road runs. The theory of the system is manifestly to treat the railroad track, its rolling stock, its franchise, and its capital as a unit for taxation, and to distribute the assessed value of this unit according as the length of the road in each county, city, and town bears to the whole length of the

road.

It provides, therefore, for three separate valuations :

Decided April 24, 1876. Neither illegality or irregularity in the proceedings, nor error, or excess in the valuation, nor the hardship or 1. Of the real estate in each county, injustice of the law, provided it be city, and town, which is not a part of constitutional, nor any grievance the track and right of way, and of the which can be remedied by a suit at law, either before or after its payment, personal property, such as tools, implewill authorize an injunction rements, &c., which remain permanently straining the collection of a tax. The rule as to courts of equity interfering with the collection of taxes stated and applied to a peculiar case. Appeal from the Circuit Court of the

at that locality. These are valued by the local assessor and taxed by the local authorities in precisely the same manner that other real and personal property are assessed and taxed.

2. The railroad track, including the the aggregate capital of the company. This is obvious from the proviso to the fourth paragraph of section three of the revenue law. As this paragraph lies at the basis of these controversies, it is here given verbatim:

right of way, the grading and superstructure, and such depots, buildings, and other improvements as are on it, and all the rolling stock and other personal property not local.

The entire value of this, owned by any company in the state, is ascertained by a report made by the proper officer of the railroad company, submitted to a state board of equalization, which fixes this value finally, and each county, city, and town taxes the company on so much of this assessment as the length of the track within that locality bears to the whole length of the track assessed by the board.

These two subjects of assessment are by the statute called the tangible property of the company.

"The capital stock of all companies and associations now or hereafter created under the laws of this state, 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 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

It is obvious, however, that while a fair assessment under these two descriptions of property will include all the visible or tangible property of the cor-act-subject, however, to such change, poration, it may or may not include all its wealth. There may be other property of a class not visible or tangible which ought to respond to taxation, and which the state has a right to subject to

taxation.

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 3. This element the State of Illinois shares of capital stock of any such calls the value of the franchise and company or association shall not be as capital stock of the corporations. The sessed or taxed in this state. This value of the right to use this tangible clause shall not apply to the capital property in a special manner for pur stock or shares of capital stock of banks poses of gain. And this constitutes the organized under the general banking third valuation, which is likewise to be laws of this state." made by the board of equalization, and which, when thus ascertained, is subjected to the taxation of the state, and "First. The market or fair cash the counties, towns, and cities, by the value of the shares of capital stock same rule that the value of the road-bed and the market or fair cash value of is, namely, according to the length of the debt (excluding from such debt the track in each taxing locality. The the indebtedness indebtedness for current exword capital stock, as here used, does penses) shall be combined or added tonot mean the shares of the stock, but gether; and the aggregate amount so

The rule adopted by the board is as follows:

tions.

stock, including the franchise, respect- ferries, insurance, telegraph and exively, of such companies and associa- press interests or business, venders of patents, 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

"Second. From the aggregate amount ascertained as aforesaid, there shall be deducted the aggregate amount of the equalized or assessed valuation of all the tangible property, respectively, of such operates." companies and associations, (such equal-"§ 10. The general assembly shall not ized or assessed valuation being taken impose taxes upon municipal corporain each case, as the same may be tions, or the inhabitants or property determined by the equalization or asses- for corporate purposes, but shall require ment of property by this board), and that all taxable property within the the amount remaining, in each case, if limits of municipal corporations shall any, shall be taken and held to be the be taxed for the payment of debts conamount and fair cash value of the cap- tracted under the authority of law, such ital stock, including the franchise, which this board is required by law to assess, respectively, against companies and associations now or hereafter created under the laws of this state."

It is said that the statute of Illinois is void, because it violates the principle of uniformity, and taxes corporations in a manner different from that which governs taxation of individuals.

The sections of the constitution relied on in support of this proposition, are sections one and ten of article nine, which are as follows:

1. The general assemby shall provide such revenue as may be needful by levying a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his, her, or its property; such value to be ascertained by some person or persons, to be elected or appointed in such manner as the general assembly shall direct, and not otherwise; but the general assembly shall have power to tax peddlers, auctioneers, brokers, hawkers, merchants, commission merchants, showmer, Jugglers, inn-keepers, grocery-keepers, liquor dealers, toll-bridges,

taxes to be uniform in respect to persons and property within the jurisdiction of the body imposing the same."

As regards this latter section there is no claim that the rate of taxation levied by any municipal corporation, on the assessed value of railroad property within its limits, is greater than on other property.

Nor is it asserted that the valuation of that part of the property which the statute regards as strictly local, namely, real estate not a part of the track, and tools and implements used exclusively within the locality, has been assessed on any other principle than that which is applied to the property of individ

uals.

But the contention is that the rule of treating the road, its rolling stock and franchises as a unit, and assessing it as a whole, on which each municipality levies its taxes according to the length of the road within its limits, violates the principle of this section. The Supreme Court of Illinois have held this statute to be constitutional.

The statute requires the proper officers of the railroad companies to furn

ish to the state auditor a schedule of final, can be granted to stay collection the various elements already mentioned of taxes until it is shown that all the as necessary in applying the statutory taxes conceded to be due, or which the rule of valuation. It is charged that court can see ought to be paid, or which the board of equalization increased the can be shown to be due by affidavits, estimates of value so reported to the has been paid or tendered without deauditor, without notice to the commanding a receipt in full. panies, and without sufficient notice that it ought to be done, and it is strenuously urged that for want of this notice the whole assessment of the property and levy of taxes is void.

5. While the constitution of Illinois requires taxation, in general, to be uniform and equal, it declares, in express terms, that a large class of persons engaged in special pursuits, among whom are persons or corporations owning franchises and privileges, may be taxed

that for individuals.

Held, 1. While this court does not lay down any absolute rule limiting the powers of a court of equity in restrain-as the legislature shail determine, by a ing the collection of taxes, it declares general law, uniform as to the class that it is essential that every case be upon which it operates, and under this brought within some of the recognized provision a statute is not unconstiturules of equity jurisdiction, and that tional which prescribes a different rule neither illegality or irregularity in the of taxation for railroad companies from proceedings, nor error or excess in the valuation, nor the hardship or the injustice of the law, provided it be constitutional, nor any grievance which can be remedied by a suit at law, either all the real and personal property of before or after the payment of the tax, corporations are justly liable to taxabefore or after the payment of the tax, will authorize an injunction against its tion, and a rule which ascertains the value of all this by ascertaining the cash value of the funded debt and of the shares of the capital stock as the basis of the assessment, is probably as fair as any other.

collection.

6. Nor does it violate any provision of the constitution of the United States. 7 The capital stock, franchises, and

2. This rule is founded on the principle that the levy of taxes is a legislative and not a judicial function, and the court can neither make nor cause to be 8. Deducting from this the assessed made a new assessment if the one com- value of all the tangible real and perplained of be erroneous, and also in the sonal property which is also taxed, necessity that the taxes, without which leaves the real value of the capital the state could not exist, should be reg-stock and franchise subject to taxation. ularly and promptly paid into its treasas justly as any other manner, all modes being more or less imperfect.

ury.

3. Quære: Whether the same rigid 9. It is neither in conflict with the rule against equitable relief would ap- constitution of Illinois nor inequitable ply to taxes levied solely by municipal that the entire taxable property of the corporations for corporate purposes as railroad company should be ascertained that here applied to state taxes? Probby the state board of equalization, and ably not. that the state, county, and city taxes 4. No injunction, preliminary or should be collected within each munici