Opinion of the Court.

after 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 corporation shall pay, and that this shall be the same on 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 deter

Opinion of the Court.

mining 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 class, it is not for us to inquire. So long as the statute does not conflict with the organic 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 not to have been assessed in any sum, and that other corporations escaped entirely from being assessed which ought to have been assessed, and hence the rule of uniformity was violated. The State Board of Equalization had the power to make the assessment, and the action of that body can not be reviewed by the courts except for fraud. Spencer & Gardner v. The People, 68 Ill. 510.

In Republic Life Ins. Co. v. Pollak, 75 Ill. 292, where an assessment had been made by the State Board of Equalization, as here, it was held, that in the absence of fraud or want of power the courts are powerless to give relief against an excessive assessment. The legislature has empowered the State Board of Equalization to assess the capital stock, including

Opinion of the Court.

the franchise, of corporations, organized under our laws, and it is no part of the duty of a court of equity to interfere with the action of that body, unless the evidence discloses fraud in making the assessment, which is not the case here.

The decree of the circuit court will be affirmed.

Decree affirmed.

INDEX.

ACTIONS.

FOR MONEY HAD AND RECEIVED.

1. To recover back money paid on the fraudulent delivery of goods sold. Where money is paid by one party to another for a given article assumed to be sold, but the seller delivers to the purchaser only a worthless imitation of that article, there is a legal fraud, and an action for money had and received will lie for the money thus paid for which nothing has been received. Drennan v. Bunn, 175.

2. On failure of consideration-as, in case of a refusal to deliver a part of the goods purchased and paid for. If a buyer has paid for a certain quantity of goods, and the vendor has delivered only a part, and makes default in delivering the remainder, the buyer may rescind the contract for the deficiency, and recover the price paid for the quantity deficient. This is in its nature a total failure of consideration for the part of the price paid, as contradistinguished from cases of a partial failure of the whole. Ibid. 175.

3. On the purchase of securities which are liable to defences—of a recovery over. The sale of a chose in action by the payee, expressed to be for a given amount, but in fact subject to be reduced to a sum materially less by the defence of usury, to a party having no previous notice of the usury, and without informing him of the defence, is such a legal fraud as will subject the vendor, even though he may have indorsed without recourse, to an action by the vendee for the sum lost by the defence of usury. The same rule would apply when the maker has a defence of payment or set-off. Ibid. 175. CREDITOR AGAINST STOCKHOLDER.

4. Action at law will lie. See CORPORATIONS, 6.

FORMER RECOVERY.

5. After-accruing damages-whether a further action will lie—of continuing a nuisance. See FORMER RECOVERY, 1 to 4.

INDIVIDUAL DEBTS-PARTNERSHIP FUNDS.

6. Payment of individual debts out of partnership funds-recovery back by the other partners. See PARTNERSHIP, 1 to 5.

FOR CONTINUING A NUISANCE.

7.

Whether an action will lie. See NUISANCE, 1, 2. 43-124 ILL.

ADMINISTRATION OF ESTATES.

EQUITABLE JURISDICTION OF COUNTY COURT.

1. In the settlement of estates. The county court, as a court of
probate, in the settlement of estates and the adjustment of the ac-
counts of executors, administrators and guardians, exercises equi-
table jurisdiction, so far as may be necessary to adjust the same.
Corrington's Estate, 363.

2. So if an executor, either through bad faith or by failure to
exercise reasonable diligence, diminishes the funds in his hands
for distribution under the will, he should be required to account
for it, and the county court is clothed with ample jurisdiction and
power to compel a just and true accounting, and to require him to
charge himself with the deficit. Ibid. 363.

DEVASTAVIT OR WASTE.

3. Liability therefor. Acts of negligence in the control or dis-
position of an estate by the executor or administrator, careless ad-
ministration of it, or a willful disposition of the assets of the estate,
whereby the rights of creditors or legatees or parties entitled in
the distribution are injured, amounts to a devastavit or waste, for
which the executor must account. Ibid. 363.

4. Sale of land at less than its value-liability of the executor—
land to be sold and proceeds divided-a bequest of money, not a devise
of land. Where a testator, by his will, directs the sale of his land
by the executor, and the division of the proceeds equally among
the testator's children, this will be a devise of money and not a de-
vise of land; and the executor may be held responsible for the value
of the land, when he corruptly, or through gross negligence, sells
the same for less than its value, and the county court may charge
him, on final settlement, with such a sum as he might have realized
by reasonable care and diligence. Ibid. 363.

SURETY-DEATH OF PRINCIPAL.

5. Want of diligence in presenting claim against the estate of prin-
cipal-release of surety-the statute construed. Under the act of
March 4, 1869, the failure of the payee or holder of a joint note to
present the same against the estate of the principal maker, in case
of his death, within two years after the grant of letters of adminis-
tration, operated to discharge and release absolutely the sureties
in such note, from liability for any part thereof. Huddleston v.
Francis et al. 195.

6. The proviso to the act of March 4, 1869, relating to the release
of sureties, was not intended to preserve to the holder of a joint
note any cause of action against the sureties, when he failed to pre-
sent the same against the estate of the principal maker within two
years from the grant of letters. If presented and allowed, and not
paid in full, then the sureties were liable for the deficit, and they
might be sued before the expiration of the two years. Ibid. 195.