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In proportion to its acreage, and there is no presumption to that effect. On the contrary, such a presumption seems to us violent and unnatural. Even if the mere land was of uniform value for agricultural purposes, it would seem that the parcel which had the house and farm buildings upon it would be more valuable than the other. It also appears that the part which belonged to Wilson Hogg is back land, cut off from the highway. This fact would, or at least might, affect its value. We need not, however, speculate on these matters. It is sufficient to say that apportionment should have been directed according to values, and there is no finding as to what those values are. This error does not render it necessary to reverse the judgment (under which we are informed a sale has already been had) and to direct a new trial.

The rights of the parties will be sufficiently protected by modifying the judgments of the Appellate Division and of the Special Term, so as to direct that a reference be had to ascertain and determine the relative values of the land of Wilson Hogg and of Agnes Hogg, and that upon the coming in and confirmation of the report of the referee the proceeds of sale be apportioned according to such value. The appellant should recover his costs in this court.

GRAY, BARTLETT, HAIGHT, VANN, and WERNER, JJ., concur. O'BRIEN, J., absent.

Judgment accordingly.

(219 Ill. 133)

KALISH et al. v. CITY OF CHICAGO. (Supreme Court of Illinois. Dec. 20, 1905.) 1. APPEAL-REVIEW-BILL OF EXCEPTIONS.

Where the record contains no bill of exceptions, only errors apparent on the face of the record can be reviewed.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 2473, 2479.] 2. EXCEPTIONS, BILL OF-INSERTION OF Doc

UMENTS.

Defendant, appealing from a special assessment, cannot incorporate the bill of exceptions prepared by another property owner into his bill of exceptions by reference.

Appeal from Superior Court, Cook County; Theodore Brentano, Judge.

Proceeding by the city of Chicago against Louis P. Kalish and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Guthman & Rothschild and John S. Stevens, for appellants. Robert Redfield and Frank Johnston, Jr. (Edgar Bronson Tolman, Corp. Counsel, of counsel), for appellee.

MAGRUDER, J. This is an appeal from a judgment entered by the superior court of Cook county in a proceeding begun by appellee for the purpose of widening West Randolph street in the city of Chicago from Hal

sted street to Sangamon street, a distance of three blocks, and levying a special assessment on the property benefited. The proceeding involved the condemnation of 35 feet fronting the street on each side for the distance named. Appellant, as owner of sublot 7 in James Ward's resubdivision in block 39 in Carpenter's addition to Chicago, appeared and filed objections, and, having become the owner during the trial of sublots 8 and 9 in said resubdivision, prosecuted the objections theretofore filed. The property of appellant on sublot 7 is known as No. 260 West Randolph street, and is improved with a threestory brick building. The jury in their verdict awarded $2,021.25 as compensation for the north 35 feet of said lot 7 and the private alley adjoining the same, taken for the improvement, and allowed $2,264 for the improvements upon the premises. They assessed back $2,021.25 upon the balance of sublot 7 and of the private alley adjoining the same as special benefits, and assessed the sum of $2,070 as special benefits upon sublots 8 and 9 in said resubdivision, and the private alley adjoining the same. The commissioners in their report reported $314,103.70 as the amount of benefits to property to be benefited by said improvement, and also reported that there would be no benefit to the public.

It is insisted by the appellant: First, that the question of public benefits should have been submitted to the jury, and should not have been determined by the court without a jury; second, that no resolution or ordinance had been passed by the city of Chicago, providing that the proposed widened portion of the street should become a market place, and that therefore benefits predicated on the assumption that it would become a market place were illegal; third, that the proposed improvement was a public and not a local improvement; fourth, that the damages allowed for improvements upon appellant's property are insufficient and contrary to the evidence; and, fifth, that the assessments on appellant's property are excessive and contrary to the evidence. It is apparent that none of the objections thus made by the appellant are objections which arise on the face of the record, and therefore they cannot be considered or reviewed by this court in the absence of a proper bill of exceptions. Kelly v. City of Chicago, 148 III. 90, 35 N. E. 752; Helmuth v. Bell, 150 Ill. 263, 37 N. E. 230.

The only bill of exceptions, appearing in the record filed in this court by the appellant, contains only the motion of appellant for a new trial, a recital of the overruling of said motion and an exception thereto, and the recital of an entry of judgment on the verdict and an exception thereto, and closes with the following recital: "And forasmuch as all other objections made by the said objector last named in the trial of this cause, together with the ruling of the court thereon and the exceptions of said last-named objector there to, together with all the evidence, oral and

documentary, offered, received and heard on such trial, as well as all instructions given and refused by the court therein, with the exceptions of said last-named objector thereto, and all proceedings in said cause, not otherwise appearing of record, do now sufficiently and fully appear of record in and by the certain bill of exceptions of the certain objectors, Emily A. Snyder and Charles E. Berdel, signed and sealed and filed in this cause January 28, 1905, and now of record herein; the said objector, Louis P. Kalish, tenders this further bill of exceptions herein, and prays that the same may be signed and sealed by the judge of this court, pursuant to the statute in such case provided; which is done accordingly this 6th day of February, A. D. 1905." Berdel and Snyder were defendants with the present appellant in this proceeding in the trial court. By the above recital appellant attempted, in his bill of exceptions entitled "Additional Bill of Exceptions," to adopt as his own the bill of exceptions of Berdel and Snyder. The bill of exceptions, however, of Berdel and Snyder does not appear in the record of appellant filed on this appeal. There is nothing in this record to bring the bill of exceptions of Berdel and Snyder before this court in the case at bar, except the above recital in the additional bill of exceptions filed by appellant and embodied in the present record. The question then arises whether, in such a proceeding as this, one property owner, appealing from a judgment against his property, can, without embodying a separate bill of exceptions in his own record, adopt by reference the bill of exceptions prepared by another property owner seeking to review a judgment against his property.

Section 56 of the act in regard to local improvements provides, with reference to judgments of confirmation, as follows: "Such judgments shall have the effect of several judgments as to each tract or parcel of land assessed, and no appeal from any such judgment or writ of error shall invalidate or delay the judgments, except as to the property concerning which the appeal or writ of error is taken." 4 Starr & C. Ann. St. Supp. 1902, p. 182, c. 24. Section 95 of the act in regard to local improvements is as follows: "Appeals from final judgments or orders of any court, made in the proceedings provided for by this act, may be taken to the Supreme Court of this state, in the manner provided by law, by any of the owners or parties interested in lands taken, damaged or assessed therein, and the court may allow such an appeal to be taken jointly and upon a joint bond, or severally, and upon several bonds, as may be specified in the order allowing the same." Id. pp. 201, 202. It thus appears that in a condemnation and special assessment proceeding of this kind the judgment as to each tract or parcel of land is a several judgment, and several and separate appeals may be taken from each judgment

by each property owner. Here, appellant was not a party to the appeal taken by Berdel and Snyder, and we have held in a number of cases that "the judgment is in effect several as to the property owners, and one or more may appeal or prosecute a writ of error without affecting the judgment against the others." Kelly v. City of Chicago, 148 Ill. 90, 35 N. E. 752; Phelps v. City of Mattoon, 177 Ill. 169, 52 N. E. 288; Goldstein v. Village of Milford, 214 Ill. 528, 73 N. E. 758. Inasmuch as each judgment is several as to each property owner, and inasmuch as each property owner may take a separate appeal, and separate appeals have been taken in the case at bar, it follows that the trial judge did not seal and sign the bill of exceptions prepared by Berdel and Snyder for any property owners except Berdel and Snyder, and the document so signed constituted a bill of exceptions for Berdel and Snyder, and no one else. As to appellant, who did not join in the procuring and settling of that bill of exceptions, it is as to him merely an unofficial document, having no sanction of the trial judge. The appellant cannot incorporate into his bill of exceptions by reference only a transcript of the proceedings of the trial in the lower court, described as the bill of exceptions of Berdel and Snyder, which does not appear in any part of the record on the present appeal. This court has decided that a document or instrument cannot be incorporated in a bill of exceptions by a mere reference thereto. City of Chicago v. South Park Com'rs, 169 Ill. 387, 48 N. E. 680; Meissner v. People, 169 Ill. 530, 49 N. E. 568; Lindgren v. Swartz, 49 Ill. App. 488; Hennessy v. Metzger, 50 Ill. App. 533; Dick v. Mullins, 128 Ind. 365, 27 N. E. 741. Under the authorities thus referred to, the appellant could not incorporate the instrument, identified as the bill of exceptions of Berdel and Snyder, by reference in his own bill of exceptions, even if the bill of exceptions of Berdel and Snyder were contained in some other part of their own record than the bill of exceptions. Here, however, it does not appear in any part of appellant's own record, but must be looked for in the record of some other cause pending in this court, and therefore cannot be incorporated by mere reference.

The rule is that, where no bill of exceptions appears in the record, only such errors as appear upon the face of the record proper can be considered. Helmuth v. Bell, 150 Ill. 263, 37 N. E. 230; Mallers v. Whittier Machine Co., 170 Ill. 434, 48 N. E. 992. In Frawley v. Hoverter, 36 Minn. 379, 31 N. W. 356, it was said by the Supreme Court of Minnesota: "It is conceded that as to Kreider the judgment must be reversed, but no error as to the other defendants appears upon the record. They cannot rely to show such error on the case and bill of exceptions, for it was not settled on their behalf,

and it purports only to set forth the evidence and rulings on the trial of the issue between the plaintiff and Kreider. The case against the other defendants could have no place in a case and bill of exceptions proposed and procured to be settled by him alone, and in which they did not join. They could not be bound, nor, as to them, could the plaintiff be bound by Kreider's case and bill of exceptions." Section 59 of the practice act provides as follows: "If, during the progress of any trial in any civil cause, either party shall allege an exception to the opinion of the court, and reduce the same to writing, it shall be the duty of the judge to allow said exception, and sign and seal the same, and the said exception shall thereupon become a part of the record of such cause." 3 Starr & C. Ann. St. 1896, p. 3065, c. 110.

Inasmuch as there is no bill of exceptions embodying the rulings of the court below and the evidence introduced on the trial, the points urged by the appellant in favor of the reversal of the judgment in this case are not before us, and cannot be considered. Frank v. City of Chicago, 216 Ill. 588, 75 N. E. 213. Accordingly, the judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

(219 Ill. 46)

PEOPLE ex rel. POWER et al. v. ROSE, Secretary of State.

(Supreme Court of Illinois. Dec. 20, 1905.) 1. TRADE-NAMES-PROTECTION INJUNCTION. Where a company has conducted business for many years under a trade-name by which it has become well known, it may enjoin the use of such name by other parties who intend by such use to deceive the public and to fraudulently obtain the business of the company.

[Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trade-Marks and Trade-Names, §§ 64, 86, 110.]

2. MANDAMUS-GROUNDS-ISSUANCE OF CERTIFICATE OF INCORPORATION.

Mandamus will not lie to compel the Secretary of State to issue a certificate of incorporation under a name the use of which may be enjoined by an existing company which has established its business under that name. 3. SAME-DOUBTFUL CASES.

In mandamus proceedings to compel the Secretary of State to issue a certificate of incorporation under the name of an existing concern, which is claimed to be a foreign corporation, and which has not complied with 4 Starr & C. Ann. St. Supp. 1902, p. 310, par. 53, imposing certain requirements upon foreign corporations desiring to do business in the state, the writ will not be granted, where it is doubtful from the record whether the existing concern is a foreign corporation or a mere partnership.

4. JOINT-STOCK COMPANIES-CORPORATIONSPARTNERSHIPS.

A joint-stock company is a partnership, and not a corporation, although it possesses many of the characteristics of a corporation.

[Ed. Note. For cases in point, see vol. 29, Cent. Dig. Joint-Stock Companies, § 1.]

5. CORPORATIONS OFFENSES-UNAUTHORIZED ASSUMPTION OF INCORPORATION.

The mere use of a corporate name by a concern, when unattended with any fraudulent intentions or consequences, is not a violation of the Criminal Code (1 Starr & C. Ann. St. 1896, p. 1332, par. 368), making it an offense for any unincorporated association or company to put forth a sign or advertisement under a corporate name for the purpose of soliciting business. 6. SAME VIOLATION OF STATUTE-EFFECT.

The Criminal Code (1 Starr & C. Ann. St. 1896, p. 1332, par. 368), imposing a fine on any unincorporated association or person who assumes a corporate name for the purpose of soliciting business, does not invalidate contracts made by persons guilty of the prohibited offense, and a violation of the statute can be attended with no other consequences than the infliction of the penalty therein prescribed.

Original petition for mandamus by the people, on the relation of F. R. Power and others, against James A. Rose, Secretary of State. Denied.

This is an original petition for mandamus, filed in this court on June 8, 1905, by the people, upon the relation of F. R. Power, Patrick L. Touhy, F. G. Crary, and F. A. Andrews, against James A. Rose, Secretary of State, praying that a writ of mandamus issue, directed to said Rose, as Secretary of State, commanding him as hereinafter set forth. Rose, as Secretary of State, filed an answer to the petition. The petitioners or relators above named filed a demurrer to the answer of the Secretary of State. The case comes before this court upon the issue made by the demurrer to the answer. The petitioners, who are of Chicago, in Cook county, allege in their petition that on February 23, 1905, one of the petitioners, Patrick L. Touhy, and William H. Peacock and F. T. Donovan, acting as commissioners under the corporation act of Illinois and the amendments thereto, filed in the office of the Secretary of State at Springfield a statement or application for a license to open books of subscription to the capital stock of a company to be known as or named "United States Express Company," with a capital stock of $2,500, to be divided into 25 shares of $100 each; that the object for which the company was to be formed was to receive, carry, and transport for hire packages, large or small, and to do a general express business, the life of the company to be 99 years, with its principal office in Chicago; that the said statement or application was duly signed and acknowledged according to law by the commissioners, and the fee of $30, as required by law, was on said day paid to the Secretary of State, who did on February 23, 1905, issue a license to said commissioners, authorizing them to open books of subscription to the capital stock of United States Express Company, which said license is signed by the Secretary of State, and sealed with the great seal of state, copy being attached to the petition; that the commissioners opened books of subscription for the capital stock of the United States Express Company, and the stock was all subscribed

for, to wit, Patrick L. Touhy, 1 share, $100; F. R. Power, 23 shares, $2,300; F. G. Crary, 1 share, $100; that thereafter the commissioners, on March 6, 1905, at Chicago, at 2 o'clock p. m., convened a meeting of the subscribers of stock, pursuant to notice required by law, for the purpose of electing a board of directors, etc., which notice was deposited in the post office, properly addressed to each subscriber, 10 days before the time fixed for the meeting; that the subscribers met at the time and place specified in the notice, and proceeded to elect directors, and that the following persons were duly elected for the term of one year: Patrick L. Touhy, F. R. Power, and F. A. Andrews; and that the post-office address of said company is at 171 Washington street, in Chicago; that thereupon the commissioners made a report of their acts and doings as such to the Secretary of State, stating therein that they opened books of subscription, that the stock was fully subscribed, and giving a copy of said subscription, and that pursuant to notice, copy of which is set forth, the subscribers to the stock met and elected directors as above stated, and also stating in said report that the post-office address of said company was No. 171 Washington street, room 303, in Chicago, which said report was on March 6, 1905, sworn to before a notary public by said commissioners. The petition further states that the said report was mailed to the Secretary of State, and by him received at his office in Springfield on or about March 9, 1905; that there is no company chartered under the laws of Illinois to do business in the name of United States Ex. press Company, and that there is no foreign company or corporation licensed to do business in Illinois in the name of United States Express Company; that when the Secretary of State received said report, being in all respects as by law required, it was his legal duty to file the same in his office, and issue the final certificate of incorporation of said company, yet that the said Rose, so being such Secretary of State, wholly refused and still refuses to file said report and to issue the final certificate of incorporation of said company, as required by the statute; that the said Rose, as such Secretary, has returned said report to petitioner, and refused and refuses to complete the final organization of said company by receiving and filing said report, and issuing the final certificate of incorporation, by means whereof the petitioners are denied the right of becoming a corporation under the name of "United States Express Company," to which they are justly and lawfully entitled. Petitioners therefore pray a writ of mandamus, directed to said Rose, Secretary of State, commanding him forthwith to receive the said report of said commissioners, and to file said report, and to issue a certificate of the complete organization of said corporation, and that such further order may be entered in the premises as jus

tice may require. The said petition was sworn to by Patrick L. Touhy, one of the commissioners, on April 18, 1905.

The answer of the respondent, the Secretary of State, was filed on June 14, 1905, and alleges that the court is without juris diction to hear and determine the matters set out in the petition; that respondent does not deny any of the allegations of fact in the petition, except that he has no knowledge, and therefore neither admits nor denies the allegations respecting the opening of books for subscription to the capital stock aforesaid, or whether the stock was fully subscribed, or whether a meeting of the subscribers was convened and held according to law, or whether a board of directors was elected as alleged. The answer denies that it is the legal duty of respondent to issue a final certificate of incorporation to said United States Express Company, and further denies that said petitioners, or any of them, have a right to incorporate under the laws of Illinois under the name of "United States Express Company." The answer further states that, when the license was issued out of respondent's office, it was done by one of his clerks, who supposed at the time that the parties desiring to incorporate under the said name were the same persons interested in the company hereinafter mentioned, known as the "United States Express Company," and that no question was made at the time concerning the issuing of said license; that subsequently thereto respondent was informed that the parties to whom the license had been issued were in no wise interested in the United States Express Company hereinafter mentioned; "that there is now in existence a joint-stock company called 'United States Express Company,' organized and doing business under the common law and statute law of the state of New York, and that the United States Express Company here referred to will hereinafter be mentioned as the old United States Express Company"; that "said old United States Express Company was organized, as a joint-stock association or joint-stock company, on the 22d day of April, 1854, in the state of New York, and that said old United States Express Company thereupon entered upon the transaction of a general express business throughout the United States, and has been ever since engaged in said business, and is now engaged in the same in every state and territory of the United States, as well as in the Dominion of Canada, and in foreign countries; that the said old United States Express Company carries on its business upon various railroads and steamship lines throughout the United States and Canada, and also in foreign countries; and that its business in a general way consists of the transporting and delivering of large and small packages of freight, merchandise, valu

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press Company,' is illegal and unauthorized by law; that the injunction heretofore granted in this cause on the 21st day of July, A. D. 1883, to restrain the said defendants, their counselors, attorneys, solicitors, trustees, and agents, and each and every one of them, from carrying out their purpose of organizing a corporation under the laws of the state of Illinois, under the name of the United States Express Company, or from transacting or carrying on an express business either in Illinois, or elsewhere, under the name of the United States Express Company, either as individuals or as a corporation, be, and the same is, made hereby perpetual in the premises, according to the prayer of the bill. And it is further ordered, adjudged, and decreed that the plaintiff recover costs against the defendants, to be taxed by the clerk under the direction of the court." The answer further says that the petitioners are not, and prior to the filing of the said bill were not, nor was any of them, engaged in the express business; that the incorporation of said persons under the name "United States Express Company" is a new venture, and, so far as the objects of said incorporation relative to the doing of an express business are concerned, it is a matter concerning the future, and it is not intended that said corporation shall take over or continue any existing express business; that respondent then believed and now believes that petitioners had no right to become incorporated under the laws of Illinois as the United States Express Company, and for these reasons has refused, and does refuse, to issue a final certificate of incorporation to the said persons as "United States Express Company."

able documents, papers, and moneys, and | them, under said name 'United States Exthat it has been engaged in said business continuously ever since the time of its organization as aforesaid; that its name is placed upon express cars on various railroads in the United States, and upon its wagons used to transport the merchandise, papers, and moneys above referred to, and that said old United States Express Company is possessed of and operating many hundreds of wagons by means of thousands of horses owned by it, and that the name 'United States Express Company' is well known throughout all of the United States and foreign countries as a company engaged in the transportation and delivery of merchandise, valuable packages, and money, for hire." The answer further says that subsequent to the issuance of said license, and prior to the time of his receiving the report of the commissioners, he was informed, and believes it to be true, that the use by any persons of said name, whether associated as incorporators or as copartners or as individuals, would be a fraud upon the old United States Express Company; that his attention has been called to the fact that in the month of March, 1883, there was filed in the United States Circuit Court for the Southern District of Illinois a certain bill of complaint by Thomas C. Platt, a citizen of the state of New York and president of the United States Express Company (that is to say, the old United States Express Company), upon whose behalf he filed said bill, by virtue of the articles of association of said joint-stock company and by virtue of the laws of the state of New York, against Oscar C. St. Clair and others, citizens of the state of Illinois, setting forth that the defendants claimed to have been organized under the laws of Illinois as the United States Express Company, and that the use by them of the name "United States Express Company" would be a fraud upon the rights of the old United States Express Company, and that the use of such name, even although a corporate name, was illegal, and said bill prayed that the defendants might be forever enjoined and restrained from the use of the said name of United States Express Company; that on May 31, 1884, a decree was entered in said cause as follows: "This cause came on to be heard at this term, and was argued by counsel; and thereupon, upon consideration thereof, it was ordered, adjudged and decreed as follows, viz. That the organization of an express company by the defendants, Oscar C. St. Clair, Elon P. House, Charles A. Clowes, and United States Express Company, for the purpose of carrying on an express business, under the laws of the state of Illinois, and under the name of the 'United States Express Company,' is illegal and unauthorized by law; and that the conduct of an express business by said defendants, or either of

The demurrer, which was filed to the answer on June 17, 1905, is both general and special, and sets forth the following causes of demurrer to the answer: First. The answer admits all the allegations of fact in the petition which it is necessary to prove; the license issued by the Secretary is under his hand and the great seal of the state of Illinois, and it is not claimed that any deception was practiced by plaintiffs in obtaining it; the sworn report of the commissioners is all the law requires as to the subscription of stock, election of directors, etc.; that the admitted facts make out a case for plaintiffs; that the new facts set up are not sufficient to bar the action; that the United States Express Company, organized under the laws of the state of New York, is either a corporation, or it is not a corporation; if it is a corporation, it has not complied with the law of this state in relation to foreign corporations doing business in the state; that it is not licensed to do business in this state; and, if it is not a corporation, the court had no jurisdiction in the case of Thomas

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