a corporation but was an arm or agency of the state for the management of the department of agriculture. The plaintiff moved to strike the special pleas from the files, which motion was allowed. Defendant exDefendant excepted to the ruling and elected to stand by its special pleas. A jury was impaneled, the cause tried, and a verdict rendered in favor of the plaintiff for $1,500. At the conclusion of the plaintiff's evidence, and also at the conclusion of all the evidence, defendant moved the court to instruct the jury to find it not guilty, but the motions were denied. After the verdict was returned, defendant moved for a new trial and in arrest of judgment, but the motions were overruled and judgment rendered on the verdict. Defendant prosecuted this appeal directly to this court on the ground that the state is interested and that the construction of the Constitution and the validity of a statute are involved. It is contended that appellant is an arm or agency of the state and cannot be held liable for the negligence complained of; that it is not a corporation but is a board managing a department of the state, namely, the department of agriculture, and making it a defendant in this suit is the same as making the state a defendant, which is forbidden by section 26 of article 4 of the Constitution. It is also contended that section 5 of the act creating the State Board of Agriculture, in so far as it authorizes said board to be sued, is invalid. It is further contended that on the merits the verdict and judgment are manifestly against the weight of the evidence. The Illinois State Agricultural Society was created by an act of the Legislature in 1853 (Laws 1853, p. 230), which act provided that the society should be known as a body politic and corporate. The object of the society was declared to be "to promote the agricultural, horticultural, manufacturing, mechanic, and household arts," and for that purpose the society was authorized to hold real estate to the amount of $25,000. The act authorized the society to contract and be contracted with, and to sue and be sued in all courts of law or equity in this state, and to enjoy all the privileges incident to corporations of its character not inconsistent with the laws of this state. The society was given power to alter and amend its constitution and to make, alter, and repeal such by-laws as might be deemed necessary for carrying out the objects of the society. In 1871 the General Assembly passed an act entitled "An act to create a department of agriculture in the state of Illinois" (Laws 1871-72, p. 113), the object of which was the promotion of agriculture, horticulture, manufacturing, and domestic arts. Section 1 provided that the business of said department should be conducted by a board to be styled "the State of a president, as many vice presidents as there are or from time to time may be congressional districts in this state, and the last ex-president of the State Board of Agriculture. The said president and vice presidents were to hold their offices for two years. The first board under the act was to consist of the president, vice presidents, and the last ex-president of the Illinois State Agricultural Society. The board was to have a secretary and treasurer, who should not be members of the board. The first secretary and treasurer were to be the secretary and treasurer of the Illinois State Agricultural Society. The second section of the act gave the State Board of Agriculture sole control of the affairs of the department of agriculture, of all state fairs, and power to make such by-laws, ruies, and regulations in the management of the business of the department of agriculture and state fairs, and in offering premiums, as the board might from time to time determine upon, but the state was in no event to be liable for any premium offered or debt contracted by said board. Section 3 authorized the State Board of Agriculture to make provision for the organization of county agricultural boards. Section 4 provided that money appropriated from time to time for the department of agriculture should be paid to the State Board of Agriculture, to be expended in such manner as in the opinion of said board would best advance the interests of agriculture, horticulture, manufacturing, and domestic arts in this state. Section 5 required the board to keep an office at Springfield for the transaction of its business, and provided that, when the new state house was so far completed as to allow it, there should be assigned to the department of agriculture suitable rooms therein, to be under the control of the said board. Section 6 authorized the State Board of Agriculture to contract and be contracted with, to purchase, hold, or sell property, and to sue and be sued in all courts or places, but the state was not to be liable for any of its debts or contracts. Section 7 provided the time at which the first election for members of the board should be held and the manner in which they should be elected. The board was required to make annual reports to the Governor of the transactions of the department of agriculture, giving a complete, classified, financial statement of all money received and of all expenditures and expenses, and the Governor was required to cause 10,000 copies of said annual report to be printed, one-half for the use of the department of agriculture and the remainder for the use of the state and General Assembly. In 1874 the act of 1871 (Rev. St. 1874, p. 130) was revised, but no changes were made which are necessary to be noticed in the decision of this case. The act was again revised in 1883. Laws of 1883, p. 1. It provided that the department of agriculture tially all the provisions of the previous acts | moting the objects of the department of of 1871 and 1874 with reference to the duties agriculture. Holding state fairs was recogand powers of the State Board of Agricul- nized in the act as belonging to the manageture. In addition to giving the board sole ment of the department of agriculture, and control of the affairs of the department of the State Board of Agriculture was given agriculture and state fairs, it was authorized the management of them. It is a matter of to hold fat stock shows at such times and common knowledge that, to make fairs sucplaces as it might determine upon. The pow-cessful, inducements must be offered to proer conferred by the previous acts upon the cure the exhibition of stock, agricultural board to purchase, hold, and sell property, products, etc., and giving the board power to to contract and be contracted with, and to manage and control the state fairs and to sue and be sued was retained in the act of determine what inducements should be of1883, as was also the requirement that the fered to exhibitors, either as premiums or otherwise, and what admission fee or other board make annual reports to the Governor. [1] Appellee contends that the Illinois charges should be made, was not conferring Agricultural Society was a private corpora-powers unnecessary to the management of tion, and, whether the act creating the de- the department of agriculture. The only obpartment of agriculture was an amendment ject for which the State Board of Agriculof the former society's charter or the creature was created was to manage the departtion of a new corporation, appellant is a ment of agriculture, and giving the board private corporation or at most a quasi pub-power to make rules and regulations for the lic corporation, to which are delegated the efficient management of the department did control and management of the state department of agriculture. Prior to 1871 there was no department of the state known as the department of agriculture. The act of that year created a department of the state known as the department of agriculture, and the sole control of its management for the purpose of best promoting the objects of its es-er source were trust property and funds, retablishment was conferred upon a board quired to be used and expended for the created for that purpose, to be known as the benefit of the department of agriculture, and State Board of Agriculture. Appellee con- none of it, even if there should at any time cedes in his brief that, in so far as the acts be a surplus above the expenses, belongs to of the State Board of Agriculture relate to or could be appropriated by the members of the department of agriculture, its acts are the board. It is required to annually report of such public nature as to be classed as acts to the Governor and account for all its reof the state, "and in performing the partic- ceipts and expenditures. One of its sources ular duties in connection with the manage- of income is appropriations made to it by ment of the department of agriculture the the Legislature every two years since the deState Board of Agriculture acts as the agen- partment of agriculture was established, and cy of the state." But it is argued that the its management devolved upon the board creboard has powers and enjoys privileges notated for that purpose. These and all othconferred for the purpose of enabling it to manage the department of agriculture as an agency of the state, the logical result of which would be that the board would not be liable in an action for damages for negligence in the management and conduct of the department of agriculture but would be liable for its negligence when in the discharge of duties other than those necessarily incident to the management of the department of agriculture. We are unable to agree with appellee's contention. In the first place, we think it plain the State Board of Agriculture was created as an arm or agency of the state for the purpose of managing and conducting a department of the state, and all the powers conferred and duties enjoined upon the board were for the purpose of enabling it to manage the department in such manner as. to best promote the objects of its creation. It was and is well known that state fairs, at which farm products, agricultural implements, and all kinds of stock are exhibited, not take from it its public character and subject it to the liabilities of a private cor-. the act creating it that the Legislature could poration. The board acquired no rights by not at any time change, alter, or abolish. The property acquired by it, the money apfor admissions to the fair and from any othpropriated to it by the state, and the receipts er funds received by the board it is authorized to expend only for the advancement of agriculture, horticulture, manufactures, and domestic arts in this state. The employment of two persons not members of the board, one for secretary and one for treasurer, and the payment to them of a salary, is authorized, but the board has no stockholders, pays no dividends, and was not created or organized for the profit of its members. It is essentially a public board created to manage a department of the state and is not subject to the liabilities of a private or quasi public corporation. The liability of the Iowa State Agricultural Society for a tort was before the Supreme Court of Iowa in Hern v. Iowa State Agricultural Society, 91 Iowa, 97, 58 N. W. 1092. The court said: "The only question for us to determine is as to the liability of the society for the acts complained of, and at the outset it is important to have in mind that the society is in no sense a corporation ated under that act, is a private corporation. We do not regard that case as authority in favor of the proposition that the Illi corporation. The act under which the Indiana board was organized was materially different from the Illinois act and afforded good reason for holding that the organization created by it was a private corporation. state. It exists for the sole purpose of promoting the public interest in the business of agriculture. Its public character more fully appears when we consider that its organiza-nois State Board of Agriculture is a private tion is provided for by statute; that it has no stockholders; that by law the president of each county agricultural society in the state, or other delegate therefrom, duly authorized, is made a member of the board of directors; that said board is required to make annual reports to the Governor, which are to be distributed throughout the state; that the powers of the board are prescribed by statute. ** Not being a corporation for pecuniary profit, the defendant society's liability is not controlled by the rules of law applicable to such. The society is an arm or agency of the state, organized for the promotion of the public good and for the advancement of the agricultural interests of the state. It would be manifestly wrong to permit its funds to be used to pay damages arising out of the commission of wrongful acts by its officers and servants and which are in no wise connected with the object and purpose of the society's creation." In Berman v. Minnesota State Agricultural Society, 93 Minn. 125, 100 N. W. 732, the plaintiff sued the society for a tort. The court held the defendant was a state department, and said: "The necessary result of this conclusion places the society directly under the exclusive authority of the state, which may change its officers or its organization and provide for different regulations for the government of the fair, as the best interests of the public may, in the judgment and wisdom of the Legislature, hereafter determine. Hence for such injuries as plaintiff claims to have sustained an appeal to the Legislature furnishes the only redress, and we must assume that it will be granted if deserved." That decision was approved in the later case of Berman v. Cosgrove, 95 Minn. 353, 104 N. W. 534. In Melvin v. State of California, 121 Cal. 16, one of the questions involved was whether the State Agricultural Society was exercising a governmental function in conducting a fair. Upon this question the court said: "The State Agricultural Society, under the act of 1880, became, ever since has been, and now is, a state institution. * It exists for the sole purpose of promoting the public interest in the business of agriculture and kindred objects. It is an agency of the government and in no sense an organization for pecuniary profit to the state." Our attention is called to Downing v. Indiana State Board of Agriculture, 129 Ind. 443, 28 N. E. 123, 614, 12 L. R. A. 664. It appears from the opinion in that case that in 1851 the Legislature of the state of Indiana passed an act by which the Indiana State Board of Agriculture was incorporated. The substance of the provisions of the act is set out by the court, and it is held that We are also referred by appellee to Lane v. Minnesota State Agricultural Society, 62 Minn. 175, 64 N. W. 382, 29 L. R. A. 708, where it was held that under the statute then existing the State Agricultural Society was a private corporation and liable to a party injured by its negligence. The act then in force under which the State Agricultural Society existed was subsequently replaced by another act, under which it was held the society was an arm or agency of the state. Berman v. Minnesota State Agricultural Society, supra. Whether agricultural societies are private corporations or agencies of the state for the conduct and management of a department of the government depends upon the legislative act creating them. It is not claimed by appellee that the Legislature had not the power to constitute the State Board of Agriculture an arm or agent of the state for the management of the department of agriculture. Indeed, as we have seen, it is conceded that the State Board of Agriculture is the agent of the state in the management of the department of agriculture and in its management of that department is in the discharge of a governmental function. But it is contended that the act creates the board a private or quasi public corporation and delegates to it governmental functions in the management of the department of agriculture. As before stated, this view does not appear to us to be warranted by the act creating the department of agriculture and the board and delegating to the board the sole management of the department. [2] If, as we hold, the State Board of Agriculture is an agency of the state in the exercise of governmental functions, it is not liable, under the common law, for injuries claimed to have been sustained as a result of its negligence. This is not disputed by appellee and is so thoroughly settled by all the authorities that we deem it necessary to cite only Hollenbeck v. County of Winnebago, 95 Ill. 148, 35 Am. Rep. 151, and Maia v. Eastern State Hospital, 97 Va. 507, 34 S. E. 617, 47 L. R. A. 577. The opinions in these two cases contain a list of many authorities upon the subject. It is contended, however, by appellee that the statute expressly makes the State Board of Agriculture liable in actions of this character by conferring upon it the right to sue and be sued. ་ In Hollenbeck v. County of Winnebago, supra, the same point was made, and it was power to sue and be sued, to purchase and hold personal and real property, and to make contracts, made it liable in an action of tort for negligence, but the court held otherwise. In Moody v. State Prison of North Carolina, 128 N. C. 12, 38 S. E. 131, 53 L. R. A. 855, which was an action for damages for negligence, the court said the statute incorporating the defendant did not confer upon it authority to sue and be sued but that such authority given by the statute had reference to private and quasi public corporations. The court held that statute did not apply to governmental agencies, and said: "But, even if such authority was given, it would cover only actions ordinarily incidental in its operation and would not extend to causes of action like the present. There is a distinct difference between conferring suability as to 'debts and other liabilities for which the state's prison is now liable' and extending liability for causes not heretofore recognized. * This is substantially a suit against the state. The defendant is a mere agent of the state in the administration of its government." The Supreme Court of Tennessee held in Abston v. Waldon Academy, 118 Tenn. 24, 102 S. W. 351, 11 L. R. A. (N. S.) 1179, that the fact that the charter of a charitable corporation maintained for educational purposes provides that it may sue and be sued does not render it liable for the torts of its officers and agents. In Leavell v. West Kentucky Asylum for the Insane, 122 Ky. 213, 91 S. W. 671, 4 L. R. A. (N. S.) 269, 12 Ann. Cas. 827, which was an action for a tort, it was contended that, because the statute creating the defendant authorized it to sue and be sued, it was placed upon the same footing as all other corporations with respect to torts. The court said: "We do not think this contention is sound. There are, it is true, many causes of action for which appellee may sue and also grounds upon which it may properly be sued. It may, through it officers, make contracts for supplies for its inmates, incur liabilities on that account, and, for the proper maintenance of the institution, it may sue for debts due it or to enforce any right allowed by law. * We are of the opinion, therefore, that the right given appellee by statute to sue, and to others to sue it, is to be taken in a qualified sense and should not be so construed or extended as to make it responsible to persons injured, as was appellant, by reason of the misconduct or negligence of its inmates or employés." the fact that the complainant testified fully in Where the original bill was not sworn to, its support before the master, and did not again testify after an amended bill was filed, will not authorize the court to consider the original bill as if it had been verified, in determining the question of the allowance of amendments. [Ed. Note.-For other cases, see Equity, Cent. Dig. § 549; Dec. Dig. § 290.*] 2. EQUITY (§ 267*)—PLEADING AMENDMENT -ALLOWANCE. 1911, c. 22) § 37, authorizing courts to permit Under Chancery Act (Hurd's Rev. St. the amendment of bills upon such terms as they may deem proper, so that neither party will be surprised or unreasonably delayed, amendments discretion of the court, which may impose terms in chancery proceedings are largely within the where deemed necessary. [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 545, 546; Dec. Dig. § 267.*] 3. EQUITY (§ 270*) PLEADINGS MENTS. AMEND Where an amended bill sets up a state of facts which, if true, would entitle the party to different from the facts alleged in the original the same relief prayed in the original bill, but bill, and of such a nature that they must have been known to the complainant when the original bill was filed, this may be considered in amendment are true. determining whether the facts stated in the [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 679-684; Dec. Dig. § 337.*] 5. EQUITY (8 267*)-PLEADING AMENDMENT -ALLOWANCE. the fraud by defendant, who was the adminisIn an action to set aside a conveyance for trator of the estate of complainant's father, where the original bill alleged that defendant induced plaintiff to make the conveyance by misrepresenting the value of the estate and the amount due the estate from complainant, and that defendant, by substitution of instruments, procured the conveyance of property which was not intended to be included, the allowance of the filing of an amended bill, which set up substantially the same facts, only with greater particularity, except that it did not allege fraud in substituting one deed for another, is not an abuse of discretion, even though complainant testified in support of the bill before the amendment, and did not testify thereafter; there being no repugnancy between the two bills. The provision that the State Board of Agriculture might sue and be sued was not intended to impose any new liability but had reference only to obligations incurred by contract in the management of the depart-6. ment of agriculture. [Ed. Note. For other cases, see Equity, Cent. Dig. §§ 545, 546; Dec. Dig. § 267.*] CANCELLATION OF INSTRUMENTS (§ 58*) RELIEF AWARDED-MONEY DECREE. Where defendant, who procured a conveyIt follows from the conclusion we have ance by means of fraud, transferred some of [Ed. Note.-For other cases, see Cancellation of Instruments, Cent. Dig. §§ 118, 120; Dec. Dig. § 58.*] 7. CANCELLATION OF INSTRUMENTS (§ 24*) ACTIONS-CONDITIONS PRECEDENT. at law. At the time of his death John H. Taylor owned 160 acres of land in Henry county, known as the home farm, 400 acres of other farm land in said county, some lots in the village of Wethersfield, in said county, and 100 acres of farm land in Dallas county, Iowa. His personal estate was inventoried at over $20,000. Appellee was indicted in Henry county for a criminal offense, and entered into a recognizance in the sum of $1,500, with his father as security, for his ap In a suit to set aside the conveyance of complainant's interest in the estate of his father, which had been made for a consideration of $500, an actual tender of the $500 was not necessary, where defendant had conveyed part of the property, thus making a complete rescis-pearance to answer to the indictment. About sion impossible and a money judgment in part necessary; complainant alleging repeated offers to return the $500, on receipt of the property transferred, and his present willingness to do so, and to have the $500 credited on any money decree in his favor. [Ed. Note. For other cases, see Cancellation of Instruments, Cent. Dig. §§ 33-38; Dec. Dig. § 24.*] 8. APPEAL AND ERROR (§ 1018*)-REVIEWFINDINGS-SUFFICIENCY. In a suit to set aside a transfer of complainant's interest in an estate, on the ground that it was induced by fraud, the fact that the master in certain instances accepted the testimony of those witnesses who estimated the land at a greater value than other witnesses will not authorize a reversal, on the ground that the decree was not supported by the evidence as to the value of the real estate. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4006, 4007; Dec. Dig. § 1018.*] 9. DEEDS (§ 211*)-FRAUD-EVIDENCE-SUFFI CIENCY. In a suit to set aside a conveyance of complainant's interest in the estate of his father, evidence held sufficient to support a finding that it was procured by fraud. [Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 637-647; Dec. Dig. § 211.*] 10. EXECUTORS AND ADMINISTRATORS (8 450*) BURDEN OF PURCHASES FROM HEIRS PROOF GOOD FAITH. Where a person who occupies a fiduciary relation, as an administrator, deals with the property in his care to his own advantage, the burden is upon him, when the transaction is attacked for fraud, to prove that he acted in good faith. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1858-1876; Dec. Dig. § 450.*] Appeal from Circuit Court, Henry County; Frank D. Ramsay, Judge. Bill by Frank J. Taylor against Albert C. Taylor. From a decree for complainant, defendant appeals. Affirmed. Appellee, Frank J. Taylor, and his mother, Deborah Taylor, filed their bill in the circuit court of Henry county to set aside certain deeds executed by the appellee to his brother, Albert C. Taylor, appellant, and for other relief. February 1, 1898, he departed from the state some of these claims against the appellee, in December, 1903, went to San Francisco to see him. On December 3, 1903, in the city of San Francisco, appellee executed to appellant, for the expressed consideration of $500, a quitclaim deed for all his interest in his father's lands in Illinois, particularly describing them. The deed recites that the grantor conveys and assigns to the grantee, with full power to receive and receipt for the same, all interest in the estate of John H. Taylor, deceased. On the same day, for the expressed consideration of $2,000, apJohn H. Taylor, the father of appellant and pellee conveyed to appellant his undivided appellee, resided in Henry county, Ill., and one-fourth interest in his father's lands in died intestate June 4, 1898. He left sur- the state of Iowa. While not so recited in viving a widow, Deborah Taylor, who died the deeds, a part of the consideration for since this litigation was begun; a daughter, the conveyance was the agreement of appelMary E. Glyde, and three sons, appellant, lant to assume and pay all indebtedness of appellee, and James G. Taylor, his only heirs appellee and his wife, Edna (who had then |