2. City and Village Act, art. 7, § 2, requires the city council to pass an annual appropriation bill, specifying the purposes of such appropriations. Article 8, § 1, provides that the council shall annually ascertain the total amount of appropriations for all corporate purposes to be collected from the annual tax levy, and shall adopt an ordinance specifying the amount appropriated for each purpose. Hurd's Rev. St. 1899, c. 122, art. 8, § 1, authorizes a tax levy for "educational * * and for building purposes." In March, 1900, the board of education of Chicago transmitted to the council an estimate of the amount to be provided in the annual tax levy. The statement was itemized, and contained estimates for "new buildings," etc., for parental school building," "for educational purposes," less estimated revenue from other sources, and also contained estimates of the losses in collection, together with the bonded debt and interest. The appropriation ordinance for 1900 substantially incorporated such estimates. Held, that the ordinance substantially specified the purposes for which the school tax was levied.

3. Laws 1889, approved May 21st, was "An act to establish a system of free schools," and article 8, § 1, authorized an annual tax levy of 2 per cent. for educational and 3 per cent. for building purposes. Laws 1898, p. 54, amended Laws 1889, and section 1 provided "that section 202 of the act" of 1889 "be amended to read," etc. Laws 1899, approved April 21st, amended "section 202, article 8." of the act of 1889, as amended by Laws 1898, p. 54, and section 1 provided that the same "be amended so as to read," etc., and then inserted the section sought to be amended (Laws 1889, art. 8, § 1), and changed it so as to authorize an annual tax levy of 22 per cent. for educational and the same for building purposes. Held that, though Laws 1889 did not contain any "section 202," the amendment of 1899 was valid, for it complied with the constitutional requirement that the subject-matter of the act amended should be expressed in the title of the amendatory act, and that the section amended should be inserted at length in the new act, the reference to "section 202" being mere surplusage; and therefore the city of Chicago was authorized to make an annual tax levy of 22 per cent. for educational purposes, instead of only 2 per

cent.

4. In a proceeding for judgment confirming the sale of a tract of land for delinquent taxes, it appeared that the tract was described in the assessment as "lot 1 in assessor's division of block 62, canal trustees' subdivision of the west half of section 27," etc. With the aid of plats, surveyors located the land. The owner described the tract, and his description corresponded with the plats. He had also appeared before the board of review, and had sought to obtain a reduction in the valuation, and had filed a petition with the board containing the same description. He had for 10 years paid the taxes on the land assessed under the same description. Held, that the description was sufficiently specific, rendering the assessment valid.

Error to Cook county court; O. N. Carter, Judge.

Proceedings by the people, on the relation of Samuel B. Raymond, county treasurer and ex officio county collector, for judgment confirming the sale of the property of Philo A. Otis for delinquent taxes. Judgment for plaintiff, and defendant brings error. Affirmed.

Taylor & Martin, for plaintiff in error. Edwin W. Sims, Co. Atty.. and Frank L. Shepard, Asst. Co. Atty., for defendant in

error.

HAND, J. This is a writ of error to review a judgment for sale of certain real es tate of the plaintiff in error located in the city of Chicago, rendered by the county court of Cook county, for the delinquent school tax levied thereon for the year 1900, over the objections of the plaintiff in error. Taxes aggregating the sum of $7,896.08 were levied on said real estate for that year, and on April 27, 1901, the plaintiff in error voluntarily paid to the county collector the state, county, city, library, sanitary district, and South Park taxes in full, leaving unpaid thereon only the tax levied for school purposes, which is for the sum of $3,419.73, and for which amount, only, the county collector applied for judgment and order of sale.

It is first contended by plaintiff in error that a part of the city tax paid by him was invalid on the ground that the city of Chicago, at the time of the levy thereof, was indebted beyond the 5 per cent. limit, as provided in section 12 of article 9 of the constitution, and it is urged that, in case it should be found that any part of the school tax is valid, so much of the city tax as is found to be invalid should be applied in payment of the school tax, and that judgment should be rendered for only so much of the school tax as remains unpaid after the application of the city tax already paid by him which is found to be invalid. The plaintiff in error voluntarily paid to the county collector the city tax with a full knowledge of all the facts, and the same cannot be recovered back by him; neither can it be offset against the school tax sought to be collected in this proceeding. Elston v. City of Chicago, 40 Ill. 514, 89 Am. Dec. 361; People v. Miner, 46 Ill. 374; Falls v. City of Cairo, 58 III. 403; Union Bldg. Ass'n v. City of Chicago, 61 Ill. 439; Swanston v. Ijams, 63 Ill. 165; Chicago, B. & Q. R. Co. v. People, 136 III. 660, 27 N. E. 200; Walser v. Board, 160 Ill. 272, 43 N. E. 346, 31 L. R. A. 329. In Walser v. Board, supra, on page 276, 160 Ill., and page 347, 43 N. E., it is said: "Money paid voluntarily by one with knowledge or means of knowledge of all the facts cannot be recovered back. Elston v. City of Chicago, 40 III. 514, 89 Am. Dec. 361; Town of Lyons v. Cook, 9 Ill. App. 543. To recover from a municipality taxes illegally collected and paid over, the tax must have been illegal and void, paid under compulsion, or what would be equivalent thereto, [and] received to the use of the municipality from the collecting officer. Elston v. City of Chicago, supra; Union Pac. R. Co. v. Commissioners of Dodge Co., 98 U. S. 541, 25 L. Ed. 196; Preston v. City of Boston, 12 Pick. 15. The tax in this case was illegal and void, and received from the collecting officer by and for the use of the municipality, as appears from the averments of this bill. This would not be sufficient, but it must further appear the payment was compulsory. A payment made to prevent the sale of real estate for an illegal tax is not under compulsion, but must be regarded

as voluntary. Stover v. Mitchell, 45 Ill. 213; Falls v. City of Cairo, 58 Ill. 403; Swanston v. Ijams, 63 Ill. 165."

It is next contended that the school tax is invalid for the reason that the city council of the city of Chicago did not pass an appropriation ordinance and tax levy ordinance, as provided by section 2 of article 7, and section 1 of article 8, of the city and village act, specifying in each of said ordinances the purposes, in detail, for which said school tax was to be used. It appears that the board of education of the city of Chicago on March 22, 1900, transmitted to the mayor and city council, in pursuance of the resolution of said board, the following requisition for school purposes for the year 1900, the same being an estimate by said board of education of the amount to be provided in the tax levy for 1900 for school purposes:

For Building Purposes.

New buildings, sites, and permanent

$2,500,000 200,000 $2,700,000 160,000 $2,860,000

$6,700,000 450,000 $7,150,000

Bonded indebtedness and interest.. 166,000

It further appears that on April 4, 1900, an appropriation ordinance was passed by the city council and approved by the mayor, making appropriations for corporate, school, and public library purposes for the fiscal year from January 1, 1900, to December 31, 1900, which had incorporated therein the estimate of the board of education of said city in substantially the same form that it was transmitted to the mayor and city council, and that on April 23, 1900, a tax levy ordinance was passed by the city council and approved by the mayor, whereby the sum of $18,384,195.36 was levied and assessed on all the real and personal property within the city for the current fiscal year, which had incorporated therein the estimate of said board of education in substantially the same form that it was transmitted to the mayor and city council, and which contained a direction to the city clerk to file a certified copy thereof with the county clerk of Cook county on or before the second Tuesday of August, 1900. It is provided by section 1, art. 8. c. 122, p. 1555, Hurd's Rev. St. 1899, that "for the purpose of establishing and supporting free schools, repairing and improving school houses, for all other necessary incidental expenses in each district, village or city, anything in any special charter to the contrary notwithstanding, the directors of such district and

and

the authorities of such village or city shall be authorized to levy a tax annually upon all the taxable property of the district, village or city for educational and for building purposes." By virtue of this statute the city is authorized to establish and support free schools, and for such purposes may levy a tax for educational and building purposes; and the statute having provided for a tax levy for "educational purposes" and "building purposes," and the appropriation and tax levy ordinances each having substantially specified the purposes for which the school tax in question was to be used, in the language of the statute, viz., "educational purposes" and "building purposes," we think said ordinances sufficiently definite in that particular.

It is further contended that, the tax levy for educational purposes being more than 2 per cent. of the taxable property of the city of Chicago as equalized by the state board of equalization for the year 1900, such excess cannot be collected; and in support of such contention it is said the various attempts of the legislature to amend the law increasing the right of taxation, for which a tax levy for educational purposes may be made, from 2 to 22 per cent., are illegal, and therefore a tax for educational purposes for more than 2 per cent. cannot be levied. By section 1 of article 8 of "An act to establish and maintain a system of free schools," approved and in force May 21, 1889, à tax levy of 2 per cent. for educational and 3 per cent. for building purposes was authorized. On February 24, 1898, at a special session of the legislature (Laws 1898, p. 54), an act was passed entitled "An act to amend an act entitled 'An act to establish and maintain a system of free schools,' approved and in force May 21, 1889." Section 1 of said act reads as follows: "Be it enacted by the people of the state of Illinois, represented in the general assembly: That section 202 of an act entitled 'An act to establish and maintain a system of free public schools, approved and in force May 21, 1889,' be amended to read as follows." Then follows section 202, which is section 1 of article 8 of the act of 1889 as amended, the only change made in the section as it stood in the act of 1889 being the addition thereto of the following proviso: "Provided, that the proper authorities in cities of over 100,000 inhabitants shall be authorized to levy a tax annually upon all taxable property of such city of not to exceed two and one-half per cent. for educational and two and one-half per cent. for building purposes, the valuation to be ascertained as herein before provided." In 1899 the legislature passed two acts upon the subject,-one on April 12, 1899, and one on April 21, 1899. The title and first section of the act of April 12th (Laws 1899, p. 350) was as follows:

"An act to amend article 8, section 202, of an act entitled 'An act to establish and

maintain a system of free schools,' approv ed and in force May 21, 1889.

"Section 1. Be it enacted by the people of the state of Illinois, represented in the general assembly: That article 8, section 202, of an act entitled 'An act to establish and maintain a system of free schools,' approved and in force May 21, 1889, be, and the same is hereby, amended so as to read as follows."

Then follows section 202, which is a re-enactment of section 1 of article 8 as it stood prior to the amendment of February 24, 1898, with the exception that a tax levy of 22 per cent. for educational and 22 per cent. for building purposes was authorized, instead of 2 per cent. for educational and 3 per cent. for building purposes. The act of April 21, 1899, which is the last act passed by the legislature, is in part as follows:

"An act to amend section 202, article 8, of an act entitled 'An act to establish and maintain a system of free schools,' approved May 21, 1889, and as the same is amended by an act approved February 24, 1898.

"Section 1. Be it enacted by the people of the state of Illinois, represented in the general assembly: That section 202, article 8, of an act entitled 'An act to establish and maintain a system of free schools,' approved and in force May 21, 1889, and as the same is amended by an act approved February 24, 1898, be amended to read as follows: 'Sec. 202. For the purpose of establishing and supporting free schools for not less than six nor more than nine months in each year, and defraying all the expenses of the same of every description, for the purpose of repairing and improving school houses, of procuring furniture, fuel, libraries and apparatus, and for all other necessary incidental expenses in each district, village or city, anything in any special charter to the contrary notwithstanding, the directors of such district and the authorities of such village or city shall be authorized to levy a tax annually upon all the taxable property of the district, village or city not to exceed two and one-half per cent. for educational and two and one-half per cent. for building purposes (except to pay indebtedness contracted previous to the passage of this act), the valuation to be ascertained by the last assessment for state and county taxes: provided, that in cities having a population exceeding 100,000 inhabitants the board of education may establish and maintain vacation schools and play grounds under such rules as it shall prescribe."

The act of 1889, as passed by the legislature, contains no section 202, that number being the number subsequently given to section 1 of article 8 of the act of 1889 by Starr & Curtis in the second edition of their annotated statutes, and which evidently misled the legislature, and caused it, in the various amendments to section 1 of article 8 of the act of 1889, to refer to said section as

section 202. Said section 1 of article 8 of chapter 122 as found in the statute as originally passed, and section 202 of chapter 122 as found in Starr & Curtis, is the same section. We think the number 202, as used in the various amendments of said section 1 of article 8 of the act of 1898, may be regarded as surplusage and as wholly immaterial in determining whether the act of April 21, 1899, amending section 1 of article 8 of chapter 122, is now in force. The constitution nowhere provides that the section of an act sought to be amended shall be indicated. It requires that the subject-matter of the act sought to be amended shall be expressed in the title of the amendatory act, and that the section amended shall be inserted at length in the new act. In the amendatory act of April 21, 1899, both of these constitutional provisions are fully complied with. The subject-matter of the act sought to be amended is fully stated in the title, and the section sought to be amended is inserted at length in the new act. There is, therefore, no uncertainty in the act of April 21, 1899, as to what section of chapter 122 of the Revised Statutes the legislature, by the new act passed upon that date, intended to amend; and, where the intention of the legislature can be ascertained with absolute certainty, courts will carry such intention into effect, and hold the amendment valid. Illinois Cent. R. Co. v. People, 143 Ill. 434, 33 N. E. 173, 19 L. R. A. 119.

It is also contended that the descriptions of parts of said premises as set forth in the delinquent list, judgment record, and collector's warrant are so defective as to invalidate said tax. The tracts are described as lot 1 in assessor's division of block €2, canal trustees' subdivision of the west half of section 27, township 39, range 14, town of South Chicago, county of Cook and state of Illinois; also, the south 11 feet of sublot 4, and all of sublot 5, in assessor's division of lots 7 and 8, block 54, original town of Chicago, in section 27, township 39, range 14, town of South Chicago, county of Cook and state of Illinois. On the hearing, two plats were introduced in evidence, and three witnesses were called by the defendant in error, all of whom were by occupation and long-continued service shown to be practicing surveyors, who testified from the descriptions given and the plats shown them they could identify and locate the tracts in question. The plaintiff in error was also called and examined as a witness, and testified that the first tract was located on the southeast corner of Indiana avenue and Twenty-Fifth street, in the city of Chicago; that it was improved; that it has a frontage of 66% feet on Indiana avenue and 188.1 feet on Twenty-Fifth street; and that the second tract has a frontage of 38 feet on Wells street (now Fifth avenue), in the city of Chicago, and a depth of 80.75 feet, and that it is covered by a single improvement,

consisting of a four-story brick building known as "Nos. 128 and 130 Fifth Avenue," -which descriptions correspond with the plats. The plaintiff in error appeared before the board of review of Cook county, and sought to obtain a reduction in the valuation placed upon said tracts by the board of local assessors for the year 1900, and filed with said board of review a petition in writing asking for such relief, in which petition he employed the same descriptions which were used in making the assessment and tax It also levy on said tracts for that year. appeared that said tracts had been assessed to plaintiff in error by said descriptions, and the taxes levied thereon paid by him, for the ten years preceding the year 1900. Any description by which property can be identified by a competent surveyor with reasonable certainty, either with or without the aid of extrinsic evidence, is sufficient to sustain a tax levy. Law v. People, 80 Ill. 268. The tracts in question were assessed in the name of the plaintiff in error, and the plats introduced in evidence, with the plats of the original subdivisions of the portions of the city in which they are located, respectively, in connection with the testimony of the plaintiff in error, made the descriptions of said tracts full, complete, definite, and accurate, and so certain that any competent surveyor could readily have located the same as the property assessed, and that is sufficient. When the plaintiff in error appeared before the board of review, that body had power to correct the descriptions of said tracts, if wrong. As the plaintiff in error made no complaint that they were improperly described, but described the same in his petition to said board in accordance with the descriptions by which they had been assessed by the board of local assessors, which descriptions were shown by the recorded plats thereof then on file in Cook county for the purposes of said assessment, he voluntarily acknowledged said plats; and as the evidence shows he is the owner of said tracts, and there is no claim that they have been assessed to any one else, or that the school tax levied thereon for the year 1900 has been paid, he must be held bound by the assessment. Law v. People, supra; Colcord v. Alexander, 67 Ill. 581.

The

We find no reversible error herein. judgment of the county court will therefore be affirmed. Judgment affirmed.

adultery with plaintiff's husband, and consequent loss of his society, does not survive the death of the defendant therein.1

Appeal from superior court, Suffolk county; Braley, Judge.

Action by Mrs. Dixon against one Amerman. From a judgment dismissing the ac tion, plaintiff appeals. Affirmed.

Charles E. Burbank and Charles H. Stebbins, for plaintiff. Edgar R. Champlin, Geo. L. Wilson, H. M. Knowlton, and E. A. Gilmore, for defendant.

HOLMES, C. J. This was an action by a wife against another woman alleging adultery with the plaintiff's husband and consequent loss of his society. See Neville v. Gile, 174 Mass. 305, 54 N. E. 841; Houghton v. Rice, 174 Mass. 366, 54 N. E. 843, 47 L. R. A. 310, 75 Am. St. Rep. 351. The defendant died, the superior court dismissed the action on motion, and the plaintiff appealed. The only question is whether the action survives by force of Pub. St. c. 165, § 1 (Rev. Laws, c. 171, § 1), as an action "of tort for assault, battery, imprisonment or other damage to the person."

It would seem that nothing could make it plainer than the words themselves do that this case is not within them. The words "or other damage to the person" seem to have been adopted in the General Statutes (Gen. St. c. 127, § 1) as an equivalent for St. 1842, c. 89, § 1, which enacted that "the action of trespass on the case, for damage to the person, shall hereafter survive." This was by way of addition to Rev. St. c. 93, § 7, which embraced only "assault, battery or imprisonment," and obviously it meant only to make the survival of certain types of wrongs independent of the form of the action. In the language of Chief Justice Shaw, "This manifestly extends only to damage of a physical character, as by negligence of carriers, towns, or the like." Smith v. Sherman, 4 Cush. 408, 413. The same principle was stated in Nettleton v. Dinehart, 5 Cush. 543, where it was held that an action for malicious prosecution did not survive, and has been repeated ever since. Norton v. Sewall, 106 Mass. 143, 145, 8 Am. Rep. 298; Wilkins v. Wainwright, 173 Mass. 212, 213, 53 N. E. 397. In Walters v. Nettleton, 5 Cush. 544, and Cummings v. Bird, 115 Mass. 346, it was held that an action on the case for a libel did not survive.

It is true that it has been said elsewhere that an action by a husband for debauching his wife was an action for a trespass to his person within an exception to the statutory survival of personal actions. Clarke v. McClelland, 9 Pa. 128; Garrison v. Burden, 40 Ala. 513. See Noice v. Brown, 39 N. J. Law, 569. But this proposition is simply a corollary of the common law doctrine that the

1 See Abatement and Revival, vol. 1 Cent. Dig. 1 268 [h].

wife is the busband's servant (1 Rolle, Abr. p. 2, pl. 7), and his chattel (Y. B. 19 Hen. VI, 31, pl. 59; 2 Rolle, Abr. p. 546d), as well as a part of his person (1 Bl. Comm. 442). The wrong was a trespass because the wife had no power to consent. 3 Bl. Comm. 139. See MacFadzen v. Olivant, 6 East, 387. It hardly needs to be observed that if these principles were invoked they would give the wife no comfort. The dismissal of the action was right under the settled construction of our statute.

1. The right to a seat in a stock exchange, which has a pecuniary value, and which may be transferred under restrictions, and which, upon the member's death, can be disposed of by a committee by sale,-the price, after extinguishing the claims of other members, going to his legal representatives,-is property, and may be pledged to secure a loan.

2. An assignment of a seat in a stock exchange, made for the purpose of securing a loan, did not need to be recorded; the property not being susceptible of delivery.

3. The lien on a membership in a stock exchange, created by an assignment thereof as security for a loan, may be enforced without foreclosure as of a mortgage of personalty.

4. An assignment of a membership in a stock exchange, given to secure a loan for a $4,500 note, recited that it was to "remain in full force until all indebtednesses of said W. [the assignor] to said bank have been paid." Afterwards, this note being unpaid, and the assignment being still in the payee's possession. a new note for $5,000 was given in renewal thereof, and of another note for $500, and upon the new note was the memorandum, "Collateral security. One membership (or seat) of the B. Stock Exchange." Held, that the new note was secured by the membership.

5. After making the assignment, the assignor executed a further note for $2,300, which was later taken up, and a new note for $2,000 given for the balance due. Neither of these notes mentioned the assignment, and there was no other writing which made it clear that the parties intended it to apply to them. Held, that the $2,000 note was not secured by the membership.

6. Where a party assigned his membership in a stock exchange as security for a loan, and died, and the stock exchange, pursuant to its rules, and having notice of the lien, sold the seat, and paid the proceeds thereof to the party's administrator, who also had notice, the lien was not destroyed, but subsisted, and held the proceeds of the sale.

7. The short statute of limitations (Pub. St. c. 136, § 9; Rev. Laws, c. 141, § 9), barring suits against administrators not brought within two years, is not available to an administrator as a defense to an action against him to recover money received by him from a sale made by the committee of a stock exchange of his intestate's seat therein; the seat having been pledged by intestate to plaintiff as security

for a loan, and the administrator having received the proceeds charged with the lien, and with actual notice of its existence; the statute not applying to a suit by an equitable owner to enforce his title to property as against an administrator.

8. A payee of a note secured by a membership in a stock exchange did not, throug laches, lose his right to enforce his lien against the proceeds of the sale thereof, paid by the exchange to the member's administrator, where, though he did not sue the administrator within the two years allowed by the short statute of limitations (Pub. St. c. 136, § 9; Rev. Laws, c. 141, § 9), it appeared that he gave notice to the administrator of his debt and of his lien, and insisted on his debt during the two-year period, and, on the appointment of commissioners (the estate having been adjudged insolvent), attempted to prove his debt before them, and afterwards sued in equity to avoid the bar of the special statute of limitations.

9. A payee of a note secured by a membership in a stock exchange did not waive his right to enforce his lien against the proceeds of a sale thereof paid by the exchange to the member's administrator, by attempting to prove his claim as unsecured with coramissioners appointed for the estate (it having been adjudged insolvent), nor by afterwards suing in equity to avoid the short statute of limitations, his claim having been disallowed, as barred thereby; it appearing that he had claimed his lien both to the administrator and to the stock exchange, and had been informed that the assignment to him of the membership was ineffectual and would not be recognized. and that no one had been harmed by the action taken by him.

10. Resorting to the probate jurisdiction to prove a claim against a decedent's estate is not an election to choose the equity side of the same court to enforce an equitable ownershi of money in the hands of the administrator. securing the claim presented, and does not preclude the party from proceeding in some other

court.

11. A payee of a note secured by a membership in a stock exchange did not waive his right to proceed against the proceeds of a sale thereof, paid by the exchange to the member's administrator, by the fact that he consented that other money paid to the member's widow by the stock exchange as a gratuity should be applied in part only on the note; the gratuity not being a right, but merely a gift.

12. The release of a co-maker of a note, who. as to the other maker, is merely a surety, did not release the other maker, where the payee's rights against all others were reserved.

Report from superior court, Suffolk county; James M. Martin, Judge.

Suit in equity by the Nashua Savings Bank and others against John E. Abbott, adminis trator of Allen S. Weeks, deceased, seeking to have the proceeds of a sale of a seat of membership in the Boston Stock Exchange declared charged with an express trust by reason of a certain writing, dated October 6, 1883. made by said Weeks, and alleged to secure the payment of two certain promissory notes due to the bank, and bearing date of November 1, 1894, and May 31, 1890. The superior court reported the case to the supreme jud.cial court for its determination. Decree for complainant for part of the amount claimed.

It appeared from the report that on October 6, 1883, Weeks and his wife assigned to the Nashua Savings Bank a membership