in regard to the evidence. But if this was not the case, the judge who tried the cause, with the aid of counsel on each side of the case, ought to be able, without unnecessary trouble, to determine what evidence was given on the trial, and incorporate the same in the certificate of evidence. If the judge cannot remember the evidence, he might send for the witnesses who testified before him and examine them again, and in this or some other mode determine the facts to be incorporated in the certificate." The signing and sealing of a bill of exceptions is not merely a ministerial, but it is a judicial, act. "The determination of what it shall contain is necessarily judicial in its character. Hake v. Strubel, 121 Ill. 321, 12 N. E. 676. The judge must determine judicially, in the first instance, what the bill of exceptions shall contain, that it may truly and fairly present the facts and rulings occurring on the trial of the cause; and may, in the first instance, resort to all available means to determine the facts and to secure accuracy in making up the record." People v. Williams, 91 Ill. 87; People v. Gary, 105 Ill. 264. Inasmuch, therefore, as the determination of the correctness and accuracy of the bill of exceptions is a judicial act, such judicial function could not, under the Constitution, be delegated to an official court reporter. The judge cannot accept the notes of such reporter as determining what evidence was introduced and what rulings were made independently of his own recollection and judgment. It is the duty of the court to use such notes merely as an aid to his recollection, and not as a substitute for it. People v. Anthony, 129 Ill. 218, 21 N. E. 780; People v. Chytraus, 183 Ill. 190, 55 N. E. 666; People v. Holdom, 193 III. 319, 61 N. E. 1014.

The fourth paragraph in the agreed statement of facts states that "the transcript of evidence and proceedings of the trial hereinbefore mentioned were prepared by competent, skilled and experienced court reporters, other than the said official court reporter, under the orders, and at the request of the petitioner, by and through its counsel. And said bill of exceptions was objected to by counsel for the plaintiff on the ground that the transcript of evidence therein contained was not made up by the official stenographer, James E. Ford; and the attorney for the plaintiff declined to accept any other." It thus appears that the bill of exceptions prepared by the petitioner was submitted to the counsel on the other side, and no objection was made to its accuracy or correctness, but merely that the transcript of the evidence therein contained had not been made up by the official court reporter. If the opposing counsel made no other objection to the bill of exceptions than the fact that the transcript of evidence therein was not made up by the official court reporter, then the respondent would have been justified in accepting the bill of exceptions presented to him as correct, 76 N.E.-24

and in signing and sealing the same. It has been said, in reference to the draft of a bill of exceptions, that "the draft so prepared, or a copy thereof, should be submitted, within the time required by law, to the adverse. party for his examination and suggestion of amendments." 2 Ency. of Pl. & Pr. pp. 442, 443. It has also been said that, "where the parties do not agree, the trial judge must decide as to the proper contents of the bill and proceed to settle and sign it accordingly. In the settlement of a bill of exceptions the trial judge exercises a wide discretionary power. He may refer to the reporter's notes of the evidence, or to his own minutes, and may recall and examine the witnesses as to their testimony on the trial.” 3 Ency. of Pl. & Pr. pp. 448, 449. It has always been the practice in this state for the party who has prepared his bill of exceptions to submit it to the counsel upon the other side for examination. In Weatherford v. Wilson, 2 Scam. 253, we said (page 256): "It was no doubt the duty of the judge below to have signed a bill of exceptions containing the testimony; and, if the judge, as stated by him, had not preserved minutes of the testimony, he should have permitted the party to have made out a statement of the evidence, and required it to be submitted to the opposite party for correction; and, if the parties could not agree what the evidence was, the judge should then have corrected the bill with the best lights he possessed."

So, in the case at bar, one of the objects of the act of 1887, in empowering the judge to cause a copy of the official reporter's notes to be prepared for him, is to enable him to settle questions in regard to the accuracy and correctness of the bill of exceptions submitted to him, which the counsel in the case disagree about. He is not invested with the arbitrary power of ordering such a transcript of the evidence to be made by the official reporter, simply because he desires to use such transcript in his examination of the bill of exceptions submitted to him, before he has examined the latter to see whether it is correct or not, and before any disagreement of counsel as to its correctness has been called to his attention. Such transcript of the official reporter's notes is to be used as an aid to the recollection of the judge and in the determination of disputed points. In the present case, the respondent refused to sign the bill of exceptions presented to him, upon the ground that the transcript of the evidence taken by the official reporter had not been made by the latter, and without any examination at all on his part of the bill of exceptions prepared by petitioner, and without any knowledge on his part that such bill of exceptions was inaccurate or incorrect, and without any complaint on the part of the opposing counsel that the same was incorrect or inaccurate. "A return to the alternative writ, which alleges that the re

lator had no authority to compel the respondent to sign the bill, since he himself must be the judge of the correctness of the exceptions, is insufficient, if it fails to show that the bill, as presented, did not state the facts truly, or that the exceptions were not taken in the proper manner and at the proper time. But the writ may direct the judge to sign the bill as tendered, if it fairly presents the facts." High on Ex. Legal Rem. (2d Ed.) p. 180. The return of respondent in the case at bar fails to show that the bill of exceptions presented to him did not state the facts truly. The language, used in the case of People v. Holdom, 193 Ill. 319, 61 N. E. 1014, is precisely applicable here, to wit: "We do not desire to be understood as requiring respondent to approve the particular bill of exceptions presented to him in the exact condition as presented, but it was and is his duty to examine it, and to point out where the inaccuracies are, and what corrections should be made; and, when the bill in his judgment truly sets forth the proceedings and the evidence, it is his duty to sign and seal the same."

Peremptory writ of mandamus is granted. Writ awarded.

Laws 1905, p. 186, extending the jurisdiction of the probate courts and county courts having probate jurisdiction, so as to include the complete administration of testate estate, is unconstitutional, because not signed by the President of the Senate.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Statutes, § 39.]

Appeal from Probate Court, Cook County; Charles S. Cutting, Judge.

Action by Frank Lynch against Julia Hutchinson and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Rehearing denied February 7, 1906.

A. E. Hathaway and J. M. Casavaw, for appellant.

HAND, J. This was a petition filed by Frank Lynch on July 21, 1905, in the probate court of Cook county, against Julia Hutchinson, Edward W. Mack, and John Kelly, trustees under the last will of Michael Hutchinson, deceased, who died on February 23, 1903, and whose will was admitted to probate in said court on May 8, 1903, and which will created a trust in said estate in favor of

Lynch to the extent of $3,000, praying that said trustees be required to file an account in said probate court as such trustees under the provisions of an act entitled "An act to extend the jurisdiction of probate courts and county courts having probate jurisdiction so as to include the complete administration of testate estates." Laws 1905, p. 186. The probate court declined to grant the prayer of the petition, and dismissed the same on the ground that the statute above referred to was not signed by the President of the Senate, as required by the Constitution, and was not, for that reason, a valid legislative enactment, and petitioner has prosecuted an appeal to this court.

The Constitution of 1870 (article 4, § 13) provides: "Every bill shall be read at large on three different days, in each house; and the bill and all amendments thereto shall be printed before the vote is taken on its final passage; and every bill, having passed both houses, shall be signed by the speakers thereof." In this case it appears the bill above referred to was not signed by the President of the Senate. The question, therefore, is presented for decision whether the constitutional provision that "every bill, having passed both houses, shall be signed by the speakers thereof," is mandatory or only directory. In those states where the enrolled bill, duly authenticated, is held to be conclusive evidence of its passage, the provision has uniformly been held to be mandatory: while in those states where the journals of the respective houses may be looked into to determine whether the bill was passed in compliance with constitutional provisions there is a conflict of authority upon the question. 26 Am. & Eng. Ency. of Law (2d Ed.) p. 545. In this state, while it is held that the signatures of the President of the Senate and the Speaker of the House to the bill are not conclusive evidence that the bill was properly passed, and that the journals of the respective houses may be examined to determine that question, the holding has heretofore been to the effect that the provision requiring the bill to be signed by the President of the Senate and the Speaker of the House is mandatory. Spangler v. Jacoby, 14 Ill. 297, 58 Am. Dec. 571; Turley v. County of Logan, 17 Ill. 151; Burritt v. Commissioners of State Contracts, 120 Ill. 322, 11 N. E. 180. We see no reason for receding from the position heretofore taken by this court upon the question, as we are convinced the doctrine as announced by this court is sound upon principle and amply sustained by authority. Cooley's Const. Lim. (2d Ed.) p. 152; State v. Kiesewetter, 45 Ohio St. 263, 12 N. E. 807; State v. Platt, 2 S. C. 150, 16 Am. Rep. 647; Moody v. State, 48 Ala. 115, 17 Am. Rep. 28.

The judgment of the probate court will be affirmed.

Judgment affirmed.

(219 Ill. 326.)

QUARTIER v. DOWIAT. (Supreme Court of Illinois. Dec. 20, 1905.) 1. ELECTIONS - CONTESTS - NATURE OF PROCEEDINGS-PLEADING.

Where a petition appears by its allegations to have been brought to contest an election, the fact that is is indorsed "Bill in Chancery; Petition to Contest Election," and that it prays for general equitable relief, does not make the petition a bill in chancery, so as to require the service of chancery process, etc. 2. PLEADING-DemurreRS-FORMAL ORDERS.

Where a petition to contest an election was demurred to on the ground that it was a bill in chancery, and that the court of chancery had no jurisdiction, and a motion was also made to transfer the case to the law docket, and both motions were considered at the same time, and the latter was allowed, failure to enter a formal order overruling the demurrer was not fatal to further proceedings.

3. ELECTIONS - CONTESTS - NATURE OF PROCEEDING.

A proceeding to contest an election under Hurd's Rev. St. 1903, c. 46, § 116, is purely statutory, and is not regarded as a cause at law or in equity, but is in the nature of a chancery suit, and the rules of chancery practice apply; and consequently a plea in abatement is not proper practice, even though the cause has been transferred to the common-law docket. 4. SAME APPEARANCE-EFFECT-WAIVER OF

IRREGULARITIES.

Defendant in an election contest, who enters his appearance generally, and demurs to the petition, waives any ground of objection he may have had to the sufficiency of the service, together with the right to afterwards enter a personal appearance, or to object to the jurisdiction of the court over his person.

5. SAME-APPEAL-BURDEN OF PROVING ERROR.

Under Election Act (Hurd's Rev. St. 1903, c. 46) § 119, providing that the final order in a contested election case shall be a judgment declaring who is elected, the burden of preserving the evidence on appeal or writ of error to review the judgment is on appellant or plaintiff in error.

Appeal from Circuit Court, Vermilion County; James W. Craig, Judge.

Election contest by Peter Dowiat against Eugene Quartier. From a judgment in favor of contestant, contestee appeals. Affirmed. Rehearing denied February 8, 1906. Buckingham & Dysert and A. A. Partlow, for appellant. Penwell & Lindley, for appellee.

BOGGS, J. This was a proceeding instituted by the appellee in the circuit court of Vermilion county to contest the election of the appellant to the office of president of the board of trustees of the village of Westville. A petition was filed with the clerk of the said circuit court, which, after alleging many grounds why the appellant should be declared not duly elected and why the appellee should be declared elected, contained the following prayer: "Your petitioner further epresents that on a count of the ballots cast by the electors your petitioner would have a clear majority, and he asks that such relief be granted as is provided by the statute in

such cases made and provided, and for such other relief as equity, justice, and the good conscience of this court will grant." The petition concluded as follows: "Your petitioner further asks that upon a recount of said ballots, as provided by law, he be declared duly elected president of the village of Westville, and the declaration of the said judges that the said Eugene Quartier has been elected be annulled and canceled." A regu lar form of chancery summons was issued, which ordered the appellant "to answer. unto Peter Dowiat in his certain bill of complaint, being a petition to contest election, filed in said court on the chancery side thereof," and was served as a chancery summons. The appellant appeared, and interposed a special demurrer, on the ground that the contest of an election was a statutory proceeding, and that a court of chancery had no jurisdiction to hear and determine an election contest. Thereupon appellee "moved the court to direct the clerk thereof to place the cause upon the common-law docket of this court at the present term thereof." The demurrer and the motion, called in the record a "cross-motion," were argued by the respective counsel together, and the court granted the motion as a cross-motion, but made no formal order as to the disposition of the demurrer, and the cause was thereupon placed upon the common-law docket. When the cause had been duly entered on the common-law docket, the appellant presented a plea in abatement, in which he recited all of the proceedings in the cause up to that time, and urged that the court had no jurisdiction of his person, for the reason that he had not been served with process, as required in common-law actions. A general demurrer was sustained to this plea, and, the appellant electing to stand by his plea, the court heard the cause on the merits, and entered judgment in accordance with the prayer of the petition. This is an appeal from such judgment.

Appellant urges that the court erred in not ruling upon and sustaining his demurrer to the petition. His contention is that the petition filed herein was a bill in chancery, that he had been served with chancery process, and that a court of chancery had no jurisdiction to hear and determine the cause, being the contest of an election. This contention is based upon that portion of the prayer of the petition "for such other relief as equity, justice, and the good conscience of this court will grant," and the fact that the indorsement on the petition read, "Bill in Chancery; Petition to Contest Election," and that the form of the summons was that of chancery process. This petition was addressed to the judge of the circuit court generally, not "in chancery sitting," and contained none of the earmarks of a bill in chancery, with the one exception above noted. The clause in the prayer of the petition is mere surplusage, and can in no way be con

sidered as changing the nature of the petition. The indorsement on the petition, "Bill in Chancery," did not determine the nature and character of the petition, but the allegations of the petition, the form thereof, and the relief asked therein would control. The allegations and the concluding paragraph of the petition clearly disclose that it was a petition under the statute to contest an election, and not a bill in chancery. The demurrer was not, therefore, well taken. Technically, an order overruling the demurrer should have been entered, but the granting of the motion as a cross-motion (that and the demurrer having been argued together by counsel) clearly showed that the court acted upon the demurrer and the motion together, and regarded the decision on the motion as in effect and for all purposes as the overruling of the demurrer, in the same manner as the allowance of a cross-motion renders judgment on the motion unnecessary. In this peculiar situation, the additional fact that the appellant pleaded to the petition when placed on the common-law docket being also kept in mind, the failure to enter a formal order showing the disposition of the demurrer ought not to be regarded as a fatal error.

The court did not err in transferring the cause from the chancery to the common-law docket. This is a purely statutory proceeding, and is not regarded as a cause at law or in equity. Dougias v. Hutchinson, 183 Ill. 323, 55 N. E. 628. In Reed v. Boyd, 84 III. 66, which was a suit to establish a mechanic's lien under a statutory proceeding, the statute requiring such suit to be entered upon the common-law docket, we said (page 71): "Nor can the fact that the statute requires it to be placed on the common-law docket change the nature of a cause. It is immaterial whether it is on one docket or another. Its position on the docket cannot change its nature or its inherent qualities."

The demurrer to the plea in abatement was properly sustained. Proceedings of this character are in the nature of chancery suits, and the rules of chancery practice apply. Weinberg v. Noonan, 193 Ill. 165, 61 N. E. 1022; Hurd's Rev. St. 1903, c. 46, § 116, entitled "Elections." Section 119 of the election act provides the final order in a contested election case shall be a judgment declaring who is elected; not a decree in which recitals of fact could be incorporated. In case of appeal or writ of error to reverse the same, the burden of preserving the evidence to sustain an attack on the judgment devolves on the party who questions the correctness of the action of the court.

The summons recited that the cause was on the chancery side of the court. This statement was not inaccurate, as a proceeding of this character is governed by the chancery practice. Reed v. Boyd, supra. Furthermore, the appellant, by entering his appearance generally and demurring to the petition, waived any ground of objection he

might have had to the sufficiency of the service, and by the same action waived the right to afterwards enter a special appearance to object to the jurisdiction of the court over his person.

The record is free from error reversible in character. The order and judgment appealed from is affirmed.

Judgment affirmed.

(219 Ill. 205.)

KRAFT v. WEST SIDE BREWERY CO. (Supreme Court of Illinois. Dec. 20, 1905.) CORPORATIONS-POWERS-LOAN OF MONEY.

A mortgage given to a brewing corporation to secure a loan to enable the borrower to erect a saloon for the sale of beer manufactured by the lender is within the power of the corporation, as the motive was evidently to extend the sale of its product; and to a bill to foreclose the mortgage a defense of ultra vires cannot be sustained.

Appeal from Appellate Court, First District.

Bill of the West Side Brewery Company against J. Henry Kraft. Decree for plaintiff was affirmed by the Appellate Court, and defendant appeals. Affirmed.

Rehearing denied February 7, 1906.

I. T. Greenacre (Emil A. Meyer, of counsel). for appellant. Winston, Payne & Strawn (Matt B. Pittman, of counsel), for appellee.

HAND, J. This was a bill filed in the superior court of Cook county to foreclose a mortgage given by appellant to appellee upon certain real estate located in the city of Chicago to secure the payment of appellant's promissory note for the principal sum of $4,000, together with 10 interest notes. A decree of foreclosure was entered by the trial court, and an appeal was taken to the Appellate Court for the First District, where the decree of foreclosure was affirmed, and a further appeal has been prosecuted to this court.

The only substantial defense urged by appellant was that of ultra vires. It appears from the evidence that appellant was the owner of a lot at the corner of Diversey and Washtenaw avenues, located just outside of the temperance district of Chicago; that an agent of appellee suggested that it might be of mutual advantage to appellant and appellee if appellant would erect a building suitable for saloon and hall purposes upon this lot; that soon thereafter appellant submitted a plan of a building containing a saloon and apartments for the saloon keeper on the first floor and a hall on the second floor, to appellee, which plan it approved, and agreed to loan appellant $4,000 to be used in erecting such building, provided it should be given a lease thereon and that no beer other than that manufactured by appei lee should be sold on said premises during the term of said lease. The building was

erected in accordance with said agreement, and appellant for a period paid the interest on said loan as it fell due. Failing eventual

ly to comply with the terms of said mortgage, this bill was filed to enforce its provisions, and appellant seeks to avoid the effect thereof by asserting that appellee has gone beyond its charter powers in making said loan, and that the taking of the mortgage was ultra vires, and it is therefore wholly void. Appellee is a corporation organized under the laws of this state, the object of its organization being "the brewing and selling of beer"; and it is clear that it had no power to engage generally in the business of loaning money. The only question open to discussion is whether the nature of this transaction was within such prohibition. From a careful consideration of the evidence we are of the opinion it was not. A corporation may, for the purpose of advancing the objects and purposes for which it was created, do many acts which, except for their bearing upon the express powers of the corporation, would be ultra vires. The following rule was approved in Best Brewing Co. v. Klassen, 185 Ill. 37, 57 N. E. 20, 50 L. R. A. 765, 76 Am. St. Rep. 26: "In exercising powers conferred by its charter, a corporation 'may adopt any proper and convenient means tending directly to their accomplishment, and not amounting to the transaction of a separate, unauthorized business.'" In that case this court held it to be beyond the power of a corporation organized for the same purpose as appellee to sign an appeal bond with a third party in a case in which it had no direct interest. In the case of Central Lumber Co. v. Kelter, 201 Ill. 503, 66 N. E. 543, it was held to be within the implied power of a corporation organized for "the purchase and sale of lumber, and all adjuncts for carrying on a general lumber business," to sign a bond for the performance of a building contract as surety with the contractor, who by reason thereof purchased the lumber used in the building of said company, for the reason that the signing of said bond tended directly to promote the sale of lumber, one of the purposes within the charter of the corporation.

We are of the opinion that the loan in this case was within the implied powers of appellee, and made for a purpose not too remotely connected with the promotion of its business to be within the rule laid down in Central Lumber Co. v. Kelter, supra. The reason for making the loan can under no construction of the facts be held to have been for the purpose usually in view in making real estate loans; that is, safe security at a satisfactory rate of interest. The testimony of appellant shows that he was the owner of a lot advantageously located for a saloon and hall, and that appellee solicited him to put the same to that use, and agreed to furnish the funds for the erection of the desired building, provided

Where an affidavit made in compliance with the statute for the purpose of introducing a certified copy of a deed is 'positive in its terms and meets all the requirements of the statute, the adverse party is not entitled to crossexamine the maker of the affidavit as to its truth.

2. TAXATION-CANCELLATION OF TAX DEEDPLEADING-VARIANCE.

Where a bill to cancel a tax deed alleged that complainant was the owner of the premises in fee simple, and was in possession and derived her title by a deed from another person and wife, evidence of possession in connection with the deed as a deed of the principal grantor was sufficient to support the bill, without proof that the deed was executed and acknowledged by the grantor's wife.

3. SAME-CONDITIONS OF RELIEF-TENDER OF

CHARGES.

Where a bill is filed to set aside a tax deed, it is a condition precedent to relief that the complainant shall reimburse the holder of the deed for moneys expended, with interest thereon.

[Ed. Note. For cases in point, see vol. 45, Cent. Dig. Taxation, § 1586.] 4. SAME.

Where complainant in a suit to set aside a tax deed as a cloud on his title fails to tender, before the commencement of suit, the amount paid at the tax sale, with subsequent taxes, costs, and interest, and to keep such tender good by bringing the money into court, costs cannot be decreed against defendants.

[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, § 1618.]

5. SAME TENDER-SUFFICIENCY.

Where, in a proceeding to set aside a tax deed and a quitclaim deed, the holder of the quitclaim deed is represented at the hearing before the master and her counsel is offered the amount due her, and on his refusal to accept it the money is left with the master and brought into court, the holder of the quitclaim deed may be required to pay a part of the master's charges proportionate to her interest in the premises. 6. VENUE-CHANGE-DISCRETION OF COURT.

The obligation of a 'judge to allow a change of venue to one who brings himself within the provisions of the statute is imperative, and admits of the exercise of no discretion; but the statute requires reasonable notice, and what is reasonable notice in a proper case must be left to the discretion of the judge to whom the application is made, and that discretion will not be interfered with, unless abused.

[Ed. Note.--For cases in point, see vol. 48, Cent. Dig. Venue, § 64.]