text:
    The Lake Shore & Michigan Southern Railway Co. v. Harris Goldberg.
    1. Trespass—Acquittal op co-dependant—Transcript op such judgment as evidence. — In a former suit against appellant and one Cornwall for an alleged trespass, Cornwall was adjudged not guilty, and thereupon appellee dismissed such suit as to appellant. To the present suit appellant pleaded, among other things, that the alleged trespasses were the identical trespasses mentioned in the former suit, etc., and were claimed to have been committed by Cornwall as the agent of appellant, but which, if done, he had no authority, etc. from appellant to do. The transcript of the record in the former suit was offered in evidence and excluded. Held to he error.
    2. Judgment in pavor op co-dependant.—Although, in actions of trespass, a judgment against one defendant is no bar to an action against another, yet judgment and payment thereof would he, and the record would be admissible to prove the judgment. For similar reasons the record of acquittal of one defendant, is admissible in an action against another, in connection with proof that the latter is sought to be charged for the same acts only by virtue of his relation, as principal, to the former. Where the real actor, none the less liable personally because acting for another, is not guilty, it necessarily follows that the party for whom he acted cannot be. The principal can be no more guilty by reason of the act of his agent than if he had committed the act in person.
    Appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Mr. C. D. Roys, for appellant;
    that the proof failed to show that Cornwall was acting as the agent of the defendant, and that an agency cannot he established by the declarations of the agent, cited Grey v. Gillilan, 15 Ill. 453; Breckenridge et al. v. McAfee, 54 Ind. 144; Young v. First Nat. Bank, 51 Ill. 73; M. C. R. R. Co. v. Gougar, 55 Ill. 503; Gibbs v. Holcomb,

      1 Wis. 23; Maxey v. Heckthorn, 44 Ill. 437; Ætna Ins. Co. v. N. W. Iron Co. 21 Wis. 464; Wharton on Agency, §§ 44, 164; Jenks et al. v. Burr, 56 Ill. 450.
    The master is not liable in trespass for the act of the servant unless in consequence of his previous command: 2 Greenleaf on Ev. § 68; 2 Hilliard, on Torts, 323; Angell and Ames on Corporations, 323; Vanderbilt v. Richmond Turnpike Co. 2 N. Y. 479.
    Statements of what Cornwall had said in relation to his agency should not have been admitted; and a denial by him does not cure the error of allowing such testimony: Wharton on Ev. § 176; Primm v. Legg, 67 Ill. 500; Linblom v. Ramsay, 75 Ill. 246; Livesley v. Lasalette et al. 28 Wis. 38; Nash v. Towne, 5 Wall. 689; Mima Queen and Child v. Hepburn, 7 Cranch, 295.
    Whenever the acts of an agent are permitted to be shown, bis declarations explanatory of those acts are admissible: 1 Wharton on Ev. §262; Bank v. Kennedy, 17 Wall. 24; Eastman v. Bennett, 6 Wis. 237; 2 Wharton on Ev. §1173; Cliquot’s Champagne, 3 Wall. 114; Resch v. Senn, 28 Wis. 286; Southwick v. Berry, 1 Pinney, 559; State v. Hill, 30 Wis. 416.
    The transcript of record of acquittal of Cornwall was competent evidence and should have been admitted: Smalley v. Edey, 19 Ill. 207; Grey v. Gillilan, 15 Ill. 453; Goodrich v. Hanson, 33 Ill. 498; Hopkins v. Lee, 6 Wheat. 113; Freeman on Judgments, §273.
    All concerned in a joint trespass are liable severally and collectively: Yeazel v. Alexander, 58 Ill. 254; Severin et al. v. Eddy, 52 Ill. 189.
    A recovery and a satisfaction against one is a satisfaction as to all: Severin v. Eddy, 52 Ill. 189; Crow v. Bowley, 68 Ill. 23; Stone v. Dickinson, 5 Allen, 29; Gray et al. v. Dougherty, 25 Cal. 288; Bigelow on Estoppel, 57.
    Such recovery and satisfaction may be pleaded in bar by any one or all of the other joint trespassers: Marsh v. Pier, 4 Rawle, 288; Dunkle v. Wiles, 5 Denio, 296; Miller v. Muncie, 6 Hill, 126; Kitchen v. Campbell, 3 Wilson, 308; Emery v. Fowler, 39 Me. 326; Castle v. Noyes, 14 N. Y. 329; Peterson v. Netz, 80 Ill. 25; Wells’ Res Adjudicata, § 6; Lawrence v. Hunt, 10 Wend. 80; Case v. Reeve, 14 Johns. 82; Adams v. Burns, 17 Mass. 365; Hamilton v. Quimby et al. 46 Ill. 90; Dickson v. Todd, 43 Ill. 504; Murphy v. People, 53 Ill. 239; Miller v. McManis, 57 Ill. 126.
    Messrs. Shobey & Shaefneb, for appellee;
    contended that the proof was ample that a trespass was committed by the agents of appellant, and cited Cutler v. Smith, 57 Ill. 252.
    The principal is liable for the torts of his agent done in the course of his employment, although the principal did not authorize them: Story on Agency, § 452; Phil. & Read. R’y Co. v. Derby, 20 Curtis, 291; Ransden v. Boston & Albany R. R. Co. 104 Mass. 117; Howe v. Newmarch, 12 Allen, 52; U. S. Life Ins. Co. v. Advance Co. 80 Ill. 549; Sheath v. Wilson, 9 C. & P. 607; Southwick v. Estes, 7 Cush. 385; N. W. R. R. Co. v. Hack, 66 Ill. 238.
    ' The transcript offered in evidence was properly rejected. A judgment against one joint trespasser is no bar to a suit against another for the same trespass: Hill et al. v. Freeman et al. 7 Ga. 211; Lovejoy v. Murry, 3 Wall. 1; Stone v. Dickinson, 5 Allen, 29; Davis v. Taylor, 41 Ill. 405; Livingston v. Bishop, 1 Johns. 290; Wright v. Lathrop, 2 Ohio, 33.
    The acquittal of a co-defendant is no bar to an action against the defendant not acquitted: Moore v. Fitchburg R. R. Co. 4 Gray, 465; Severin v. Eddy, 52 Ill. 189; Livingston v. Bishop, 1 Johns. 290; Thomas v. Rumsey, 6 Johns. 31; Brown v. Burrows, 8 Mo. 26; Lansing v. Montgomery, 2 Johns. 382.
   Pleasants, J.

We propose to consider only one of the errors assigned upon this record, inasmuch as that seems clear and decisive of the controversy.

This was an action of trespass brought by the appellee against the appellant jointly with the Hnion Star Line Company, E. A. Cornwall and Beuben Slayton. The declaration, filed Dec. 14, 1874, contained four counts. The first was in the usual form for assault and false imprisonment; the second was as follows: “ And also for that the said defendants, to wit: on the fourth day of October, 1873, with force and arms broke into a certain dwelling house of the said plaintiff, situate and being in the city of Chicago and county aforesaid, and then and there made a great noise and disturbance therein, and stayed and continued therein making such noise and disturbance for a- long space of time, to wit: for the space of one hour; and then and there forced arid broke open, broke in pieces and damaged a certain door of the plaintiff’s of and belonging' to the said dwelling house, and broke in pieces, damaged and spoiled one lock and two hinges .of and belonging to said door, and wherewith the same was then fastened, and of great value, to wit: of the value of twenty-five dollars; and then and there broke te pieces and damaged the stove of the said plaintiff, of great value, to wit; of the value of fifty dollars; and also during the time aforesaid, to wit: on said fourth day of October, with force and arms, etc., seized and took divers goods and chattels belonging to said plaintiff, to wit:

“ 1 doz. pants and vests, .... $8.50 . . $102.00

“ 1 “ coats,....... 7.00 . . 84.00

“ (And numerous other articles set forth in like manner.)

“And also during the time aforesaid, to wit: on the fourth day of October, with force and arms assaulted and struck and threw down on the floor Eunnie Goldberg, wife of the said plaintiff, then being in said dwelling house; by means of which said several premises the said plaintiff and his family were, during all the time aforesaid, not only greatly disturbed and annoyed in the peaceable possession of the said dwelling house of the said plaintiff, but also the said plaintiff was, during all that time, hindered and prevented from carrying on and transacting-therein his lawful and necessary affairs and business, to wit: at the county aforesaid.” The third count, like the first, charged assault and-false imprisonment, but less particularly, and the fourth was in the general form for assault and battery.

The defendants severally pleaded not guilty, except Cornwall, who set up a former acquittal, to which the plaintiff replied double.

Issues being joined, the cause came on for trial, when the plaintiff entered a nolle proseguí as to the other defendants, and the jury returned a verdict of not guilty as to appellant. This verdict was set aside and a new trial awarded, upon which the jury found the issue for the plaintiff and assessed his damages at two thousand dollars. This also was set aside, and upon the third trial the jury were discharged without a verdict, being unable to agree.

■ Thereupon the defendant, appellant here, by leave of the court, filed an additional plea, setting forth that on' the 27th day of October, A. D. 1873, the said plaintiff, in the Superior Court of Cook county, impleaded the appellant, the said E. A. Cornwall and others, jointly, in an action of trespass, for the committing of the very same supposed trespasses in the declaration mentioned; that appellant and said Cornwall pleaded, separately, that they were not guilty; that issue was joined on said pleas; that on the 7th day of July, A. D. 1874, said issues came on to be tried, and were then and there tried "in the course of law, by a jury of said county, duly chosen and sworn in thjit behalf, and that the said jury found upon their oaths that said Cornwall was not guilty; that afterwards, on the 6th day of October, A. D. 1874, said' verdict remaining in full force, judgment was entered thereon in favor of said Cornwall, and that on the day next following the said suit was, on. motion of said plaintiff, dismissed as to appellant and judgment entered in its favor for costs.

The plea then goes on to aver that the said supposed trespasses in the declaration mentioned consisted wholly and solely of an alleged arrest and’imprisonment of the said plaintiff under and by virtue of a certain search warrant duly issued by A. H. Banyon, a police justice of the city of Chicago, upon an affidavit • made therefor by said Cornwall, as being the agent of appellant for that purpose, but which was so made without any power, authority or right on his part to act for and bind appellant thereby.

Although perhaps somewhat inartificial in form, we take the substance of this averment to be that the liability of appellant was claimed to have arisen, and, if there was any, must have arisen solely from its relation as principal to the said Cornwall, whose acts in procuring the issuance and aiding in the execution of the search warrant mentioned, constituted the trespasses complained of.

It does not appear that to this plea any replication or demurrer was interposed, but the cause came on to be again tried, and the result was a verdict,for the plaintiff for three thousand dollars damages, upon which, after overruling defendant’s motion for a new trial, judgment was entered.

Upon this trial the testimony on the part of the plaintiff, as shown by the bill of exceptions, having strongly tended to support the averment of the special plea that the liability of the defendant was predicated upon the alleged acts of Cornwall as its agent, the defendant on its part offered in evidence the transcript of the record in the former suit referred to in the plea, and it was excluded by the opurt; for what reason is not indicated in the record here, but the argument for appellee attempts to justify it upon two grounds: first, it is insisted that the transcript on its face shows that the trespasses charged in the former suit are not the same as those charged in this, and second, that the acquittal of one party charged as a joint trespasser is not a bar to a recovery against another.

As to the first, it is said that the declaration in this case contained a count de bonis asportatis, while that in the other did not. It is not denied, however, that in respect to the others they, are identical, and if as to these the judgment in the former case was admissible, in connection with the proof tending to show that Cornwall’s acts as agent of the appellant were the trespasses therein charged against it, it was error not to receive it. But we are further of opinion that counsel misconceived the character of the second count in the later declaration. It is herein above set forth in full, and, as will be noticed, contains no proper averment of the value of the goods, nor of their asportation, nor of their conversion by the defendants, and the damages alleged by reason of the premises are only such as grow" out of the interference with the use and enjoyment of the dwelling house. It is strictly a count guare clausum- or domumfregit, and the seizure and taking of the goods—like the assault upon plaintiff’s wife, which is without the per guod— is averred as matter of aggravation only. Otherwise there would be two causes of action, distinct and several in their nature, alleged in one count. There were four counts in each, identical respectively, in substance and almost so in terms, excepting that to the second of the latter is added the averment of the seizure and taking of the goods, as above set forth. Under this there could be no recovery for such seizure and taking, independently of the breach of the close, and proof that there was no such breach would be an answer to the whole count. Stephen on PL marg. p. 254.

The two second counts, therefore, as well as the others, respectively, are substantially the same, and their exact agreement in the numerous particulars of time, place, persons and acts, of itself, alone and without the aid of parol proof, sufficiently identifies the several trespasses in said declarations respectively charged.

Was then the judgment in favor of Cornwall upon the verdict of not guilty in the former suit admissible as evidence, in connection with the other proof, on behalf of appellant, in this?

If the alleged trespasses are the same, the only ground of objection urged against it is the rule that in this class of cases a judgment in favor of one defendant, joint or several, is not in law a bar to the action against another.

We concede the rule to be as stated, but think it inapplicable. The judgment here was not pleaded nor sought to be proved as in itself a bar, but as one of several facts which together constituted a defense. The rule is equally well settled that a judgment against one is not a bar to the action against another for the same cause; but such a judgment and payment thereof would be, and the record would of course be admissible to prove the judgment. So in this case the defense set up was the acquittal of another defendant, and the further fact that the party here’sued was sought to be charged only in virtue of its alleged relation, as principal, to the one so acquitted. We hold it to be good. If the agent were irresponsible, or the question of intent material, it might be otherwise. But where the real actor, none the less liable personally because acting for another, is not guilty, it necessarily follows that the party for whom he acted cannot be. The principal could be no more guilty by reason of the act of his agent than if he had committed the act in person, and the party who was alone charged to have committed the act in person was conclusively adjudged not guilty. We see no way of escape from our conclusion in reason, and for authority refer to Thomas v. Rumsey, 6 Johns, 26; and Emery v. Fowler, 39 Maine, 326.

The cases cited to the contrary are not parallel. In Lansing, imp’d, &c. v. Montgomery, 2 Johns. 382, the defendant was charged with issuing a distress warrant as a landlord and thereby causing plaintiff’s goods to be taken, when no rent was due, and he set up as a defense the acquittal of the constable, who took the goods but successfully pleaded the protection of his warrant. There was no such relation between the two defendants as in the case at bar.

Moore v. The Fitchburg R. R. Co. 4 Gray, 465, was an action against the company and one.of its conductors, for putting a passenger off its train. There was a verdict in favor of the conductor and against the company, but the point under consideration here was not involved. The exceptions taken questioned only the liability of the company in trespass, and the joinder of the defendants in the action, and the court say that upon these they have nothing to do with the consistency of the verdict which discharged the agent and held the principal in such an action. We understand the implication from this remark, if any, to be against the proposition for which the case is cited.

Severin v. Eddy, 52 Ill. 189, was an action on the case for injuries received by falling through a hatchway door in defendant’s sidewalk, and the plea was that in a suit by plaintiff against the City of Chicago, for the same injuries, there was a verdict and judgment for that defendant. The court held it bad on demurrer, for the reason that although the injuries were the same, the wrong—the cause of action—was not. The duty of the city in the premises was different from that of Severin, and therefore its negligence in failing to discharge it—which would be the wrong and cause of action—must- necessarily be also different.

Here the defendant was a corporation, from its nature incapable of committing a trespass except through an agent. The evidence on the part of the plaintiff himself went to show that he claimed to rely for his cause of action upon certain alleged acts of E. A. Cornwall, done as such agent. The transcript offered tended of itself, and more clearly in connection with the testimony of plaintiff’s attorney, to show that they were the same that were alleged and .relied on in a former action by the same plaintiff against said Cornwall, this defendant and others, in which this defendant was at issue with the plaintiff as to the commission of the alleged trespasses by Cornwall and his agency for it therein, and that a verdict of not guilty was returned as to him and judgment entered thereon.

This evidence was necessary to complete a possible defense, and its rejection by the court was error, for which the judgment must be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Murphy, P. J.

license: Public Domain

text:
    Frederick M. Kantzler v. Ada E. Grant.
    1. Breach oe promise to marry—Facts excusing performance— When they may be asserted.—If facts exist which in law constitute a defense to an action, the defendant therein may avail himself of them for the first time on the trial of the cause; so where the defendant was sued for breach of a promise to marry, he may for the first time on the trial, set up by way of defense, that the plaintiff was affected with a venereal disease; and his right to such defense is not affected by his failure to previously place his refusal upon such grounds.
    2. Bad character of the plaintiff—May be shown in mitigation of damages.—In an action of this nature, the bad character of the plaintiff as a lewd woman, may be shown in mitigation of damages. The injury to the character of a virtuous and good woman would be greater than to that of one who is depraved and abandoned, and the breach of such a promise will not occasion the same anguish of mind or produce the same injury to the reputation of a prostitute as to a pure woman.
    Appeal from the Circuit Court of Cook county; the Hon. John Gr. Rogers, Judge, presiding.

      Mr. Geo. F. Blanks, for appellant;
    that bad health, if such as to incapacitate from marriage or render it improper or unsafe, is a good defense to the action, cited 2 Parsons on Contracts 67; Atchison v. Baker, Peake, 103; Sprague v. Craig, 51 Ill. 288; Wenger v. Calder, 78 Ill. 275.
    Upon the question of damages: St. L. A. & T. H. R. R. Co. v. Manly, 58 Ill. 300; Burnett v. Simpkins, 24 Ill. 264; Bench v. Merrick, 1 Car. & K. 463.
    Where it is not manifest that the verdict may not have been influenced by faulty instructions, a new trial should be given: T. W. & W. R’y Co. v. Corn, 71 Ill. 493; Volk v. Roche, 70 Ill. 297.
    Mr. J. Lyle King, for appellee;
    that if appellant introduced evidence as to the character of appellee, in bad faith, for the purpose of blackening or defaming her character, such purpose might be considered in aggravation of damages, cited Fidler v. McKinney, 21 Ill. 314.
    That appellant should have shown that he refused to perform his promise for the reason stated on the trial: Irving v. Greenwood, 1 C. & C. 350.
    Wliere substantial justice has been done, erroneous instructions will not reverse: Elam v. Badger, 23 Ill. 498; Newkirk v. Cone, 18 Ill. 449.
   Murphy, P. J.

This was an action of assumpsit, commenced in the Circuit Court of Cook county by the appellee against the appellant, for the breach of an alleged contract of marriage. Upon a trial of the cause in the court below, appellee recovered a verdict and judgment for five hundred dollars, from which appellant prayed an appeal to this court, and brings the record here and asks a reversal of the judgment, on the sole ground that the court erred in, 1st, giving the instructions aske’d by the appellee; 2nd, in refusing to give the instructions asked by appellant; and 3d, that the court erred in modifying the instructions asked by the appellant, and giving them as modified.

There was no motion made for a new trial in the court below, and therefore no question is made in this court'upon the fqcts in the case, and the inquiry is narrowed to the single question of whether there is error in the action of the court in respect to the instructions given by the court to the jury. On the trial appellant requested the court to instruct the jury as follows: “ Although the jury shall believe, from the evidence, that defendant promised to marry plaintiff, yet if the jury further believe from the evidence that at the time such promise was made the plaintiff was apparently in good health, and defendant had no reason to believe and did not know that plaintiff was subject to venereal disease, but that the defendant afterwards discovered that the plaintiff was subject to a venereal disease commonly called the syphilis, then the jury are instructed that under such circumstances the defendant might lawfully refuse to marry the plaintiff.” This the court refused to do, but added these words of its own motion: u And if on that account he did refuse,” and as thus modified the- same was given to the jury, to which the appellant, excepted. If facts exist which in law constitute a perfect defense to an action, it is not perceived why a defendant may not avail himself thereof for the first time, if you please, on the trial of the cause. Under the rule of law announced by the instruction as modified, a defendant would be estopped to avail himself upon the trial of any defense or reason for refusing to perform his contract, however good and valid in law, unless at the time of such refusal he sees well to it that he is .able to prove that he placed his refusal upon the proper grounds, for however good and legal defense he may have in law, it is unavailing unless his action is in fact caused by that which constitutes the legal defense.

We think the instruction as asked was a correct statement of the law as applicable to the case, and should have been given, and that it was error to refuse it.

On the question of damage the appellant.asked the court to instruct the jury as follows:

Even if the jury should believe, from the evidence, that the alleged cdn tract of marriage is subsisting, yet the jury will take into consideration the character and habits of the plaintiff, and if they believe, from the evidence, that she was addicted to lewdness, this circumstance should be considered in estimating the damages, and no person guilty of such practices ought to recover as much damages as a pure-minded and virtuous person.”

This the court refused to give, and after the word lewdness, of his own motion, inserted the words, “ with other person or persons after the contract was made,” and as thus modified gave the same to the jury, to which appellant excepted. This, we think, was error. In Bennett v. Simpkins, 24 111. 264, our own Supreme Court, having this subject under consideration, says: The proposition is too plain to be denied, that the injury to the character of a virtuous and good woman is greater than to that of one who is depraved and abandoned. * * * * It will not be insisted that the breach of promise will occasion the same anguish of mind, or produce the same injury to the reputation of a prostitute, as to a pure woman. * * * * If the previous bad character for virtue were not known to defendant when he entered into the engagement, and it came to his knowledge subsequently, it would absolve him from its performance. But while this is true, if the want of virtue on the part of the plaintiff was known to the defendant at the time, it forms no grounds of defense to the action, but it may be shown in mitigation of damages, for the reason that its breach does not result in the same injury as if the character had been good.” Thus, it will be seen that the rule of law is, as laid down in the instructions as asked by the appellant, and should have been given. The rule is obviously a just one, the principles of which commend themselves to all right thinking people, and one by no means new, but in respect to which we think there is but little if any conflict in the authorities. • A further reference to authorities is not deemed necessary. The errors above alluded to are fatal to the judgment in the court below, and for which it is reversed, and the cause remanded.

Judgment reversed.


text:
    John A. Spooner v. George R. Warner et al.
    1, Action on poreign judgment—Jurisdiction op inferior court should be alleged.—In declaring upon tkereeord of a judgmentof a court of inferior and limited jurisdiction, no intendments are indulged in favor of the jurisdiction of such court, but the facts necessary to confer jurisdiction must he distinctly averred.
    2. Debt on judgment—Form op entry op judgment.—In an action of debt on a judgment, the form of recovery should be in debt for the amount of the original judgment, and for the amount of the interest accrued thereon as damages.
    Appeal from the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.
    Messrs. Chetlain & Geegoey, for appellant;
    contended that a judgment in damages in an action of debt is erroneous, and necessitates a reversal, and cited Jones v. Lloyd et al. Breese, 225; Jackson v. Haskell, 2 Scam. 565; Heyel v. Stapp, 3 Scam. 95; Williams et al. v. Bank of Illinois, 1 Gilm. 667; Mayer v. Hutchinson, 2 Gilm. 266; Wilcoxon v. Roby, 3 Gilm. 475; Hinckly et al. v. West, 4 Gilm. 136; O’Conner v. Mullen, 11 Ill. 57; March v. Wright, 14 Ill. 248; Chapman v. Wright, 20 Ill. 120; Bowman v. Bartley, 21 Ill. 30; Ross v. Taylor, 63 Ill. 215; Caldwell et al. v. Richmond, 64 Ill. 30.
    A justice’s court being of limited and inferior jurisdiction, there are no intendments in aid of its jurisdiction, and the declaration should state facts sufficient to show jurisdiction: Sollers v. Lawrence, Willes, 413; Logan v. Siggerson, 2 Blackf. 266; Wheeler v. Raymond, 8 Cow. 311; People v. Koeber, 7 Hill, 39; Lawton v. Irwin, 9 Wend. 233; Bridge v. Ford, 4 Mass. 641; Cleveland v. Rogers, 6 Wend. 438; Mills v. Martin, 19 Johns. 7; Cornell v. Barnes, 7 Hill, 35; Turner v. Roby, 3 N. Y. 193; Von Kittler v. Johnson, 57 Ill. 109; Kilgore v. Ferguson, 77 Ill. 213.

      Mr. Herbert B. Johnson, for appellees;
    that the jurisdiction of the court sufficiently appears by the declaration, cited R. R. I. R. R. Co. v. Steele, 69 Ill. 253; Bowden v. Bowden, 75 Ill. 111; Culver v. Hide & Leather Bank, 78 Ill. 625; Choate v. Hathaway, 73 Ill. 518; Barnes v. Harris, 3 Barb. 607; Hubbard v. Davis, 1 Aiken, 296; Goodsell v. Leonard, 23 Mich. 374; Trader v. McKee, 1 Scam. 558; Rae v. Hurlburt, 17 Ill. 579; Phillips on Ev. 210; Stephen’s Pl. 304; I Chitty’s Pl. 370.
   Murphy, P. J.

This was an action of debt commenced in the County Court of Cook county, by the appellees, upon a foreign judgment, rendered by a justice of the peace, for the county of Saratoga, in the State of Hew York. It appears that the .appellees, in declaring on the record, filed one special count, and the common counts. To the special count, appellant interposed a general demurrer, which, being overruled, the appellees dismissed the common counts, and the appellant, abiding by his demurrer to the special count, and declining to-answer further, the court below rendered judgment for the appellees for the sum of $228.38 damage, to. which the appellant excepted, and prayed an appeal to this court, and brings-the record here and assigns for error the ruling of the court in overruling his demurrer and rendering judgment for the appellees, and in rendering judgment in damages only. This raises a question of law for our decision, the determination of which-will dispose of this case.

It is insisted by the appellant, that the declaration is not good in law, and that the demurrer should have been sustained. This involves a recurrence to some very plain and elementary principles of pleading. It may be considered the well settled rule of pleading, that in declaring upon the record of a judgment of a court of inferior and limited jurisdiction, no intendments or presumption in favor of such jurisdiction, will be-indulged, and that every fact necessary to show jurisdiction in such court must be distinctly averred. In the earlier history of the science of pleading, the rule was much more stringent than it now is. But we think no well-considered case can be found to support a judgment founded upon a declaration not containing such averments. A justice of the peace of the State of New York is conceded to be a court of inferior and limited jurisdiction, and the question raised 'by this demurrer is whether the count contains sufficient averment of facts to show such jurisdiction. The only averment contained in the declaration, as to the jurisdiction of the court over the j>arties, is as follows:

And the plaintiffs in fact say: “ That the said justice then and there had jurisdiction of the person of the defendant, and that by the statute of that State then in force had jurisdiction of the subject matter adjudicated in that behalf, which said statute is as follows:

“Justices of the peace have civil jurisdiction in actions arising on contracts for the recovery of money only, . * * in which the sum claimed does not exceed $200.00, under the ■code in -force December 9, 1876.” This, it will be readily seen, is not the averment of a fact at all, but of a conclusion of law, which could only be true upon the supposition that certain facts were present, namely, that due process of law had been duly issued by said court, and served upon the defendants therein, or •.that he had voluntarily come and submitted himseff to the jurisdiction of said court; these facts being established, the ■conclusion averred would be true as matter of law. But the ■difficulty, as we think, is that the count contains no averment of these facts, and for that reason we think it was defective, and that the demurrer should have been sustained. Aside from the numerous authorities to this effect, outside of our own, State, we think the case of Yon Kittler et al. v. Johnson, 57 111. 109, is decisive of this one. In that case the court says: “A party who pleads for his defense the order or process of a court of limited and not general jurisdiction must state such facts as will show that the court had jurisdiction of the subject matter of the controversy and of the persons of the parties.” It is. true in that case the pleading in question was by the defendant, but no difference in principle is perceived, whether the allegation be made by a defendant or plaintiff. It is a full recognition of the doctrine by our own Supreme Court, so uniformly held by the courts of the other States in, the country. We are therefore of the opinion that the demurrer should have been sustained, and that it was error to overrule it. There is great irregularity, if not error, in the entry of the judgment in the court below. Inasmuch as the cause will have to be again tried, we have not deemed it necessary to examine with much care the authorities referred to in support of that assignment of error, only considering it necessary to observe that if the plaintiff is entitled to recover at all, the form of- entry of such judgment should be in debt for the amount of original judgment, and for the amount of the interest accrued thereon as damages. For this error the judgment of the court below is reversed, and cause remanded, with leave to -the appellees to amend their declaration.

Judgment reversed.


author: Pleasants, J.

text:
    Philip Kussell et al. v. Jacob Jzevor.
    1. Trespass—Execution op legal process—Exemplary damages.— Where the only evidence in the case as to the acts of the defendants was that they took the goods under a writ of attachment, believing them to be the goods of their debtor, and afterwards refused to deliver them up on a writ of replevin, an instruction to the effect that if the jury believe the defendants willfully, wantonly and maliciously committed such trespass, then punitive damages may be awarded, is erroneous. Appellants were proceeding in an orderly manner to attach goods which they believed, from the surrounding circumstances, belonged to their debtor, and they are not chargeable with malice, through ignorance of the fact of such ownership being in another.
    2. Subsequent refusal to surrender on demand.—A mere refusal to surrender such goods to an officer armed with a writ of replevin does not imply malice. Having, as they honestly believed, the better and legal right to the property, they were not bound to aid the officer in taking the goods from them.
    3. Rule of damages.—The verdict of the jury cannot be supported under a claim of damage and loss of business and good will to the plaintiff by reason of defendants’ acts. The bill of sale under which plaintiff claims does not purport to convey any interest in the building, lease, good will or business, hence the actual damage suffered was the value of the goods at the time they were taken, with interest thereon to the time of verdict rendered.

      Appeal from, the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.
    Mr. William H. King, for appellants;
    that admitting the sale to appellee was bona, fide, the right to the goods depends upon the fact as to which first obtained actual possession, appellants or ajipellee, cited Burnell v. Robertson, 5 Gilm. 282; Ketchum v. Watson, 24 Ill. 591.
    The record fails to disclose any wantonness or aggravated conduct on the part of appellants, and punitive damages should not have been allowed: Conrad v. Pacific Ins. Co. 6 Pet. 262; Beveridge v. Rawson, 51 Ill. 504; City of Chicago v. Martin, 49 Ill. 241; Pierce v. Millay, 44 Ill. 189; Kennedy v. North Mo. R. R. Co. 36 Mo. 351.
    There was no evidence to justify the court in instructing the jury that they might find" exemplary damages: Waldron v. Marcier, 82 Ill. 550; Wenger v. Calder, 78 Ill. 275; Engle v. Jones, 51 Mo. 316; Franz v. Hilterbrand, 45 Mo. 121; Rose v. Story, 1 Pa. St. 190; Brown v. Allen, 35 Iowa, 306; Bates v. Clark, 5 Otto, 204.
    The damages allowed were grossly excessive: Sadler v. Bean, 38 Iowa, 684; Cutler v. Smith, 57 Ill. 252; Tripp v. Gronner, 60 Ill. 474; Becker v. Dupree, 75 Ill. 167.
    Messrs. Bbandt & Hoffman, for appellee;
    that the damages are not excessive, cited Field on Damages, 56; St. L. V. & S. H. R. R. v. Capps, 67 Ill. 607; Lawrence v. Hagerman, 56 Ill. 68; Jasper v. Purnell, 67 Ill. 358; Johnson v. Camp, 51 Ill. 219; Best v. Allen, 30 Ill. 30: Hawk v. Ridgway, 33 Ill. 473; Farwell v. Warren, 51 Ill. 467; Coffin v. Coffin, 4 Mass. 41; McNamara v. King, 2 Gilm. 432; Ross v. Innis, 35 Ill. 488.
   Pleasants, J.

The facts proved in this case, so far as need be stated, are these: For some months prior and up to May 4, 1876, one Joseph Weseley had been keeping a small grocery at Ho. 17 Crittenden street, in the city of Chicago, and was then indebted to Kussel Bros., two of the appellants, who were wholesale dealers, on account for goods, in the sum of $105.39. On that day his stock was levied on under an execution in favor of a third party, and his store locked up and put in charge of á custodian. On the morning of the 9th, at the office of the justice who had issued the execution, he made a bill of sale of “ the stock, fixtures and property contained in the store,” for $275, to the appellee, and the latter, with his consent, then and there paid the price to the plaintiff’s attorney, who retained the amount of the judgment, and paid over the residue to Weseley. Appellee immediately presented his bill of sale, with an order for possession to the custodian, who thereupon unlocked the door and delivered to him the key. He and his wife went in, sold a pound of sugar to a customer, and then, for some unexplained reason, disappeared,leaving no one in the store except a lad who had previously been there in the employ of Weseley. On the same morning, and shortly before the execution of the bill of sale, the Kussel Brothers sued out from another justice a writ of attachment against the property of Weseley, which was delivered to constable Klyn, the other appellant, to execute. Christian Kussel accompanied him, to point out the goods. Finding the door locked, they crossed the street to a saloon in search of Weseley, but did not see him. Observing a few minutes afterward that the store was open, they returned to it, and being informed by. the custodian, whom they met near the door, that “he was through with it,” went in, and seeing no one there but the lad before mentioned, who was recognized by Kussel as the clerk or employee of W eseley, at once proceeded to levy upon and load up the goods. While so engaged appellee’s wife came in, followed by her husband, who claimed the property and exhibited his bill of sale; but Kussel and the constable disregarded it, and went on with the levy. The appellee being a Pole, and unable to speak or understand English readily, went out, and soon returned with one Labuy, a fellow countryman, who also informed them of appellee’s claim that he had bought and paid for the property, and on his behalf forbade their taking it. Notwithstanding this, they still went on, and removed to the store of Kussel Brothers two wagon loads of goods, worth from $140 to $168. Labuy accompanied them, and saw that everything taken was properly counted or weighed and minuted. On the next day appellee sued out a writ of replevin, and Labuy, with the officer having it, demanded the goods of appellants, who replied: “Look the store through, and if you can find them, why, take them.” They searched, but never found or recovered them. In due time Kussel Bros, obtained a judgment for the amount of their claim in the attachment suit against Weseley, and execution thereon was returned satisfied. At the time of that trial the goods were again demanded of appellants, who asked a little time to consult their attorney, and shortly afterwards refused to surrender them. Thereupon the replevin suit was dismissed, and this, in trespass, brought.

Upon this state of facts the court below gave to the jury, among others, the following instruction:

“ If the jury believe from the evidence that the defendants committed the trespasses alleged in the declaration, or some of them, and thereby injured and damaged the plaintiff, then the jury should find the defendants guilty, and assess the plaintiff’s damages; and if the jury shall believe from the evidence that the defendants willfully, wantonly, and maliciously committed such trespasses as the jury shall believe from the evidence they did commit, if any, then the jury áre instructed as matter of law that the damages are not necessarily limited by any damages which the jury may believe from the evidence that the plaintiff has actually sustained in the premises, but the jury may, in such case, give a further sum as smart money, or a punishment to the defendants, and such as under all the circumstances the jury shall deem just.”

A verdict of guilty was returned, and the plaintiff’s damages thereby assessed at $1,150, which the court refused to set aside, but entered judgment accordingly, and the defendants appealed.

The effort of counsel here to support this verdict upon the alleged ground that plaintiff was poor, had invested all his means in this store, and was unable to replace the stock taken, and that the greatest element of his actual damage was the breaking up and destruction of his business, was almost a fatal admission against it. There was not the slightest proof of either of the facts so assumed. An offer was made on the trial to show the value of the good will and business of this store, but it was refused by the court, and rightly, for the reason, we presume, that plaintiff had shown no interest in it. The bill of sale did not purport to convey any interest in the building, lease, good will or business. It follows that the value of the goods at the time they were taken, with interest thereon to the time of verdict rendered, was the full amount of actual damage that he could claim. Upon a liberal view of all the testimony in relation to it, that value did not exceed $160.

It therefore struck the members of this court, alike and at first blush, that even if this were a case for exemplary damages the amount given by the jury was grossly unreasonable and excessive.

But we discover in the record no evidence tending to show any willfulness, wantonness or malice on the part of the defendants—that is, any act done at their mere will without regard to reason or right, and with a disposition to oppress or injure the plaintiff.

The only circumstances relied on as showing it are, first, that they persisted in taking the goods after notice of plaintiff’s claim and against his protest, and second, that afterwards upon demand for them on a writ of replevin, they declined to deliver them up or tell the officer where they could be found.

But the claim of which they had notice was only that plaintiff had bought and paid for them, not that he had ever been in possession of them or of the store or its key, before their attachment was levied. They found the store locked and in. charge of a custodian; a few minutes later they saw it open and apparently again in possession of Weseley by his clerk. It does not appear that at that time they had received any information respecting appellee or his relations to the property, and when he came upon the scene to protest against what they were doing, they may well have supposed it was his first appearance there. They were creditors of Weseley, duly armed with process against his estate which they were executing in a manner that was orderly and proper, and upon the facts, as they believed them, would have been, notwithstanding plaintiff’s purchase) payment and bill of sale, in the due exercise of their lawful right. Burnell v. Robertson, 5 Gilm. 282. Such an act, although they were mistaken as to the facts and really trespassers, is to be widely distinguished from those shown in Farwell v. Warren, 51 Ill. 467; Jasper v. Purnell, 67 Ill. 358, and other cases in which the parties, proceeding with the strong hand and without legal process or warrant, were violating the law even upon their own view of the facts. Every man is bound and presumed to know the law as applicable to given facts, and therefore every voluntary violation of it, under such circumstances, may well be jjresumed to be willful or reckless. But no man is penally bound or presumed to know the facts, and if he proceeds in a manner that would be lawful if they were as they reasonably appear and he honestly believes them to be, then although he be mistaken he is not, upon that fact alone, chargeable with malice nor liable for more than the actual damages. Conard v. The Pacific Ins. Co. 6 Peters 262; Beveridge v. Rawson, 51 Ill. 504.

It is said that their refusal to surrender or point out the goods to the officer who held the writ of replevin, was a defiance of that officer and of the mandate of his writ, and a contempt of the court that issued it.

We do not so understand it. The mandate of the writ was addressed to the officer, not to the defendants.

It is not pretended that they resisted him or obstructed its execution, and having the better, and legal right to the property upon what they reasonably and honestly believed to be the facts, they were not bound to aid him in taking it from them.

■■ The instruction complained of was unsupported by any evidence, and therefore ought not to have been given, nor the motion to set aside the verdict and grant a new trial overruled. For these errors the judgment is reversed and the cause remanded.

Beversed and remanded.


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    John Stephani et al. v. The Catholic Bishop of Chicago.
    1. Lease—Agreement to pay assessments.—A condition in a lease that the lessee shall “pay all assessments whatsoever levied,” etc., on said premises, does not bind him to the payment of State, county and city taxes for general purposes.
    2. “Assessment” does not include general taxes.—The word assessment is often used to signify a proceeding which includes taxes, hut in the above connection it was used as a proper, specific designation of the charges upon the property, and in that sense it does not include taxes for general purposes.
    3. Meaning established by usage.—The popular understanding of the use of the word assessment refers it specifically to those charges imposed upon real property by the city to defray the expense of local improvements, in proportion to the benefits received, and this distinction between assessments and taxes is observed in the enactments of the legislature. The contract in this case is to he construed in the light of the legislation and usage of this State, and these having affixed a definite meaning to the term, the parties are conclusively presumed to have so employeciñit.
    Error to the Circuit Court of Cook county; the Hon. W. K. McAllister, Judge, presidiifg.
    Mr. A. W. Creen, for plaintiffs in error;
    upon the rule of construction of contracts, cited Chitty on Contracts, 104; French v. Brewer, 3 Wall. Jr. 346; Hawes v. Smith, 12 Me. 429; 2 Kent’s Com. 557; Potter v. O. & L. Mut. Ins. Co. 5 Hill, 147; Wells v. Carpenter, 65 Ill. 447; Story on Contracts, § 805; Reynolds v. Hall, 1 Scam. 35; Jesson v. Wright, 2 Bligh, 1; Winter v. Perrott, 6 M. & G. 357; Ellmaker v. Ellmaker, 4 Watts, 89; Canal Trustees v. City of Chicago, 12 Ill. 403.
    Where only one meaning can be attached to the terms used in a contract, that meaning must be enforced, and extrinsic evidence is not admissible to vary its terms; but where the words are ambiguous, parol evidence may he admitted to show the sense in which the parties used them: Stoops v. Smith, 100 Mass. 63; Mechanics’ Bank v. Bank of Columbia, 5 Wheat. 326; Peisch v. Dixon, 1 Mason, 9; Doyle v. Teas, 4 Scam. 202; Goldshede v. Swan, 1 Exch. 154; Colburn v. Dawson, 70 E. C. L. 760.
    The acts of the parties may be resorted to as a means of interpretation: St. L. Gas Light Co. v. City of St. Louis, 46 Mo. 121; Knight v. N. E. Worsted Co. 2 Cush. 271; Reading v. Gray, 37 N. Y. 78; Cavazos v. Trevino, 6 Wall. 773; Farrar v. Rowley, 2 La. An. 475; Citizens F. Ins. Co. v. Doll, 35 Md. 89; Chicago v. Sheldon, 9 Wall. 50; Chapman v. Bluck, 33 E. C. L. 662; Parmalee v. Hambleton, 24 Ill. 605; Leavers v. Cleary, 75 Ill. 349; W. U. R. R. Co. v. Smith, 75 Ill. 496.
    Where a word used in a contract is susceptible of two meanings, statements of the parties during the negotiation are admissible to ascertain in what sense the parties themselves used them: Hart v. Hamnett, 18 Vt. 127; Barnett v. Allen, 10 Ohio, 426; Cole v. Wendell, 8 Johns. 116; Gray v. Harper, 1 Story, 574; Sargent v. Adams, 3 Gray, 72; Stoops v. Smith, 100 Mass. 66; Birch v. DePeyster, 4 Camp. 385; Mumford v. Getling, 97 E. C. L. 303; Webster v. Enfield, 5 Gilm. 298; Barrett v. Stow, 15 Ill. 423.
    Evidence of the sense in which the words are generally used by persons in the same business, is admissible for the same purpose: The Schooner Reeside, 2 Sumn. 567; Cohtan v. Retberg, 3 Esp. 121.
    Generally, as to the meaning and use of the words assessment and taxes: Constitution 1848, Art. IX; Rev. Law 1845, Scates’ Comp. 987, 1006; Private Laws 1851, 132; Private Laws 1857, 892; Hill v. Figley, 23 Ill. 418; City of Peoria v. Kidder, 26 Ill. 352; Hines v. City of Leavenworth, 3 Kan. 186.
    Mr. T. A. Mobaw, for defendant in error;
    that the construction of the contract is not open to evidence, cited 2 Parsons on Contracts, 551.
    That the word assessment is used in the sense of tax, and so understood: Scates’ Comp. 1080; Rev. Stat. 1874, 899; Hill v. Figley, 23 Ill. 418; State of Illinois v. Ill. Cent. R. R. Co. 27 Ill. 64; Burrill’s Law Dic. Title “Assessment;” Webster’s Dic; Mayor of Baltimore v. Greenmount Cemetery, 7 Md. 517; People v. Brooklyn, 4 Const. 429; Rev. Stat. 1874, Chap. 113, § 11; Curtis v. Pierce, 115 Mass. 187; Simonds v. Turner, 120 Mass. 328.
    The words of a covenant must be taken most strongly against the covenantor: 2 Parsons on Contracts, 508; 1 Chitty on Contracts, 136; Beckwith v. Howard, 6 R. I. 1; Biddle v. Van Deventer, 26 Mo. 503; Browning v. Wright, 2 Bos. &. Pul. 22 ; Massie v. Belford, 68 Ill. 290; Walker v. Kimball, 22 Ill. 537; McCarty v. Howell, 24 Ill. 341.
    Acts of the parties are not admissible to aid the interpretation of a contract: Clifford v. Walmesley, 5 T. Rep. 261; Boynham v. Guy’s Hospital, 3 Ves. 298; Moore v. Foley, 6 Ves. 238; Iggulden v. May, 9 Ves. 333; Alderman v. Neate, 4 Mees. & Wels. 704; Doe v. Powell, 8 Scott’s N. R. 687; Hepburn v. Snyder et al. 3 Pa. St. 72; Fry v. Hawley, 4 Fla. 281; Bellamy v. Bellamy’s Adm’r, 6 Fla. 123; United Soc. v. Eagle Bank, 7 Conn. 469; Ogden et al. v. Kirby, 79 Ill. 555; Shore v. Wilson, 5 Scott’s 2 N. R. 958.
    Where the language in a contract is ambiguous, courts will endeavor to ascertain the intention of the parties, but where it is unequivocal, although the parties may have failed to express their real intentions, there is no room for construction, and the legal effect of the agreement must be enforced: Benjamin v. McConnell, 5 Gilm. 536; Smith v. Brown, 5 Gilm. 309; Crabtree v. Hagenbaugh, 25 Ill. 233; Walker et al. v. Tucker et al. 70 Ill. 527; Canterbury v. Miller, 76 Ill. 355; Corbett v. Underwood, 83 Ill. 324; Mann v. Swyser et al. 76 Ill. 365; Hypes v. Griffin, 11 Chicago Legal News, 33; Marc v. Kupfer, 34 Ill. 286; Osgood v. McConnell, 37 Ill. 75; Bissell v. Ryan, 23 Ill. 566; Packard v. Van Schoick, 58 Ill. 79.
   Pleasants, J.

In each of two leases of several lots in the city of Chicago, bearing date respectively July 1, 1858, and January 1, 1859, between the defendant in error of the first part and the plaintiffs in error of the second part, was contained the following covenant: “And the said party of the second part, their heirs, executors, administrators, and assigns, agree further to pay (additional to the rents above specified), all water rents and all assessments whatsoever levied thereon or charged on said premises for and during the time for which the lease is granted;” and the single question presented by this record is whether the “ assessments ” so mentioned included State, county and city taxes for general purposes.

Whatever other meanings may be attached to the term in various connections the parties here have assumed in their agreement that at the time of the execution of these leases it was the proper designation of some or all kinds of public charges upon real estate in the city of Chicago, and 'employed it accordingly. The plaintiffs in error claim that it applied only to such as were imposed to meet the cost of local and compensating improvements, since more commonly known as special assessments, while the defendant in error insists that it included as well the general taxes above mentioned.

It is to be observed that in this inquiry there is nothing in the context to guide us. From the use of the term alone, as otherwise shown, or as the subject of common knowledge or of judicial notice, we are to arr-iye at the meaning which of its own unaided force it then conveyed.

In support of the claim for the broader signification the following are adduced as instances of such use:

Section 2 of chapter Y. of the city charter of 1851 confers power to levy and collect “taxes” on real and personal-estate, when required, among other purposes, “ for the erection of a city hall or bridewell; Provided, the estimated cost . . . may be apportioned by the common council, and collected by a series of annual assessments.” Manifestly the term was not here used to signify the taxes, but the proceedings for raising them. The antecedent clause authorized the apportionment of the cost into installments, and this provided for its collection—not in such installments, for that was already implied, but “by (means of) a series of annual ” proceedings here called “assessments.” Laws of Illinois, 2d Session of ’49 and ’51, p. 149.

Section 6, of the. same chapter, provides that, if at the close of any municipal year it shall be found that there has been expended, in any division of the city, for strictly local purposes, more than its relative proportion, it shall be the duty of' the common council, the ensuing year, to increase the general taxes in such division hy the amount of such excess,” and at the same time “ to abate such excess from the assessment in the other divisions.” In this instance—used in the singular number—it would seem to indicate a statement or representation in some form, of the amount of the taxes in the divisions referred to. But whatever is meant, since it was something that was to be abated, or abated from, before any taxes were to be collected, it could not have been those taxes.

Section 49, of the General Revenue Act of 1845, declares that the assessment shall be a lien on the personal property of all persons owing taxes from and after the time the assess- ■ ment books are received by the collector for the State and county taxes due thereon, and no sale,” etc. Scates’ Statutes, p. 1;080. A lien is a tie that hinds property to a debt or claim for its satisfaction. It is always either a statute, a writ, a record, an instrument or a proceeding, and so necessarily distinct from the debt. The assessment, here declared to be a lien for the tax, for that reason cannot be the tax. It is the proceeding by which the tax is imposed; and so the Supreme Court appear to consider it, although that question was only incidentally referred to, in Hill v. Figley, 23 Ill. 420.

Section 254 of the Revenue Act of 1874 also, declares that the taxes assessed upon personal property shall be a lien upon the personal property of the person assessed, from and after the time the tax book is received by the collector.” R. S. 1874, p. 899. This provision is substantially the same as the one last above quoted; and it is argued that the substitution in this of the word taxes ” for the word “ assessment ” in that, shows that they bear the same sense. But it will be noticed that it is not the “taxes” which are here declared to he a lien upon the property, but the “ taxes assessed,” etc., and these are the terms substituted for assessment.” A tax assessed is a sum fonnd and declared to be due for a public purpose by some prescribed proceeding, and it is this proceeding which is here intended as what constitutes or creates the lien; just as when we say, somewhat loosely, that a mortgage debt or a judgment debt is a lien, we mean, and are understood to mean, that the mortgage or judgment constitutes or creates the lien • for the debt. That the proceeding, and not the money debt, is here referred to, further appears from the application of the same term—“ assessed ”—to the person in the same manner as to the property.

Lastly, the language of Mr. Justice Breese, in The State of Illinois v. The Ill. Cent. R. R. Co. 27 Ill. 64, is cited as illustrating and sanctioning the use of the term in the broad sense here claimed. Having stated that upon the list of the stock, property and assets of the company mentioned, “ the auditor assessed a tax,” etc., he adds: “ and for the non-payment of this assessment the suit is brought.” The auditor assessed the tax—took some proceeding to impose it and to manifest the fact and the amount. This proceeding, then, was distinct from the amount, and the expression relied on—“ non-payment of this assessment ”—is clearly elliptical for “non-payment of the debt or amount ascertained by this assessment.” Doubtless numerous instances might he found in which very scholarly judges have written of the non-payment of a judgment or of a note, and yet it would scarcely be contended that they regarded the record or note as meaning the money mentioned in them.

The foregoing are all the instances that have been adduced to show a meaning of the term assessments, as used in this State, which would include general taxes. The majority of them occurred since the execution of the leases in question, but to our apprehension neither of them shows it. It is often used to signify aproceedwig which does include them; hut here it was used as a proper, specific designation of the charges upon the property, and in that sense we are not advised of any usage or authority which even recognizes it. Hor does the addition of the term “ whatsoever ” operate to extend the meaning, for they must still be “ assessments.”

On the other hand, examples showing that in its use as such designation it signified specifically and exclusively those charges imposed upon real estate by authority of the city to defray the expense of local improvements in proportion to the benefits received, are so numerous, clear and well known as scarcely to require a reference to them. See the Charter of 1837, Laws of 1836-7, p. 541; the Charter of 1851, Chapters VI, VII. VIII; the Amendatory Acts of 1854, Laws of 1854, p. 218 § 8; and of 1857, Private Laws of 1857, p. 902, §42; and for the provisions of the General Statutes, Scates’ Statutes, pp. 202, 1006.

Throughout these enactments the distinction between the designations, taxes and assessments, and. the things thereby respectively designated is uniformly observed. It seems also to have been recognized by the Supreme Court in The Canal Trustees v. The City of Chicago, 12 Ill. 403, and the numerous cases arising on proceedings for assessments must have made it quite familiar in this community

In this state of facts it would be unprofitable to inquire for the popular meaning of the term in question, as stated by lexicographers, or for its signification as used in the statutes or judicial decisions of other States; for we suppose that this contract is to he construed in the light of the legislation and usage of this State; and if they afiix a definite meaning to it, the parties are conclusively presumed to have so employed it. We are constrained to conclude that they do, and that the meaning so affixed does not include general taxes.

The Circuit Court instructed the jury otherwise, and they found a verdict for the defendant in error for the amount of such taxes paid during the series of years from the execution of the leases to the institution of this suit, which the Court refused to set aside.

For these errors the judgment of the Circuit Courtis reversed and the cause remanded.

Reversed and remanded.


text:
    The City of Galena et al. v. The Commissioners of Highways, Etc., et al.
    Tax for bridge and other purposes—Assessed in village—To whom paid.—Under the act of 1877, in relation to roads and bridges in counties under township organization, all the tax for repairs of bridges and other purposes, mentioned in the second clause of Sec. 81 of said act, assessed and collected on property within the corporate limits of a village or city should he paid over to the treasurer of such village or city.
    Ebbob to the Circuit Court of Jo Daviess county; the Hon. John V. Eustace, Judge, presiding.
    Messrs. D. & T. J. Sheehan, for plaintiffs in error;
    that the tax collected on property within the village should be paid over to the treasurer of the village, cited Baird v. The People, 83 Ill. 387; Cooper v. Ash, 76 Ill. 11; O’Kane v. Treat, 25 Ill. 560; Session Laws 1873, 168, § 16.
    Messrs. W. Weigley & Son, for defendants in error.
   Pleasants, J.

This case comes here from Jo Daviess county, by agreement of the parties, and the record presents for construction the excepting clause in § 84 of the “ Act in regard to ¡Roads and Bridges in Counties under Township Organization,” approved May 26,1877.

Pursuant to the second clause of § 81 of that act, a tax of $2,500 was levied for the year 1877, in the town of West Galena, which includes, with other territory, four wards of the city of Galena. Of this sum, $1,905.48 was collected upon property lying in said wards. The city, which was by law entrusted with the exclusive care and control of streets, alleys and bridges within its limits, demanded of the collector that he pay over the amount so collected to its treasurer. The commissioners of highways of the town demanded that he pay it to theirs. Under these circumstances he declined to pay it to either without a proper order of court for his protection. Thereupon this bill was filed on behalf of the city to compel its payment' to the city treasurer, and to enjoin the commissioners in respect thereto. Answers were put in by the commissioners and collector, and a replication to that of the commissioners filed.

On final hearing upon these pleadings, from which the above facts appear, the Circuit Court decreed that the money be paid to the treasurer of the commissioners of highways, and dismissed the bill at the cost of the complainants, who thereupon prosecuted this writ of error.

By said section it is enacted, first, that the commissioners of highways of each town shall annually ascertain how much money must be raised by. tax on real and personal property, for the making and repairing of roads, only,” not exceeding-forty cents on each one hundred dollars, and certify the same as thereinafter provided: “ Provided, that the tax on the property, levied for road purposes, lying within an incorporated village, town or city, in which the streets and alleys are under the care of the corporation, shall be paid over to the treasurer of such village, town or city,” etc., and

Second, that they shall annually ascertain how much must be raised “for the making and repairing of bridges, the payment of damages by reason of the opening, altering and laying out of new roads, the purchase of the necessary tools, implements and machinery for working roads, the purchase of the necessary materials for the building or repairing of roads and bridges during the ensuing year, and fqr the payment of any outstanding orders drawn by the commissioners on their treasurer; and shall levy a tax on all the real and personal property in said town, not exceeding forty cents on each one hundred dollars. And they shall give to the supervisor of the township a statement of the amount as hereinbefore provided,, necessary to be raised, to be by him submitted to the board of supervisors on or before the Tuesday next preceding their annual September meeting, for their action at said meeting; and said board shall cause the same to be entered on the tax books.”

Section 82 provides that, “ according to the amount certified as aforesaid, the county clerk, when making out the tax books for State and county taxes for the collector, shall extend the-necessary tax in a separate column against each tax payer’s-name or taxable property, as other taxes are extended, which shall be collected in the same manner as State and county taxes.”'

Section 83 makes it “the duty of the county clerk to make out and deliver, on demand, to the treasurer of the commissioners of highways, a certificate of the aggregate amount of tax so levied and placed upon the tax books;” and

Section 84 requires “ that the tax so collected shall be paid to the treasurer of the commissioners of highways (except as provided in the first clause of § 81 of this Act), by the collector, as fast as the same is collected, except such rate per cent, as shall be allowed for collecting the same.”

The only question is jvhether the clause in parenthesis above, excepts from the requirement of payment to the treasurer of the commissioners so much of the tax mentioned in the second clause of said section 81, viz: the tax levied “ for the malting and repairing of bridges,” etc., as is collected upon property lying in the city, or only so much of that mentioned in the first clause of said section, viz: the tax “for the making and repairing of roads, only,” as is so collected. • ,

• In the Act bearing the same title, approved April 11, 1873, and which constitutes the first one hundred and twenty-three' sections of Chap. 121 of the E. S. of 1874, were contained provisions substantially corresponding in terms with those of the several sections above, referred to, although differing in their order or arrangement. Thus § 16 of the earlier Act corresponds with the first clause or paragraph of § 81 in the later? with the variations that the tax thereby provided to be assessed is described more generally as “a road tax,” and the tax mentioned in the proviso to be paid to the treasurer of the incorporated village, town or city, also more generally as “ the tax on property lying within any incorporated village,” &c., which are immaterial, since the “ road tax” of the one is evidently identical with “the tax” for making and repairing roads, only,” of the other, and “ the tax on propertv,”etc., with “the tax*on the property, levied for road purposes.”

So § 120 of the earlier act is the same, with a single omission, as the second clause or paragraph of said section 81, so far as the description of the tax therein provided for is concerned, and follows up this description with precisely the same provision as to the statement of its amount to be made by the commissioners to the supervisor, and the action to be thereon taken by him and by the board.

Sections 121 and 122 of the former are identical in terms with sections 82 and 83 of the latter, and section 123 requires “ that, the tax so collected shall be paid to the treasurer of the ' commissioners of highways, except as provided in section 16 of this act, by the collector, as fast as the same is collected, except such rate per cent, as shall be allowed for collecting the same ” —which is identical in substance with section 84 of the act of 1877.

In the case of Baird v. The People, for use, etc. 83 Ill. 387 reported since the decree in question here' was rendered, the Supreme Court expressly decided that the excepting clause in said § 123 did relate to the tax mentioned in § 120—the road and bridge tax—and that so much of it as was raised upon property m the city must be paid over to the treasurer of the city; and it must be conceded that if it is applicable to the corresponding section (84) of the act of 1877, it is decisive, as authority, against this decree.

We perceive no sufficient reason for holding it inapplicable.

In the act of 1873 the two taxes, and the provisions for the levy, collection and disposal of them respectively are kept distinct. The road tax alone is referred to in § 16, and the other provisions in relation to it are found in §§ 17, 18, 43, 49 and 50. The road and bridge tax alone is referred to in § 120; and § 123, which contains the excepting clause construed by the Supreme Court, being connected with it by continuous and germane provisions, is therefore more clearly seen to relate also to that tax. What is required by the latter section to be paid to the treasurer of the commissioners is none other than the road and bridge tax, and the exception in it must be of a portion of the same. Otherwise it would not be an exception. Hor was any provision for the disposal of the road tax necessary in this section, since it had already been fully made in § 16.

In the act of 1877 the two taxes are treated together. The ascertainment of the amount of each is required in § 84, although separately in different paragraphs; and the mode of levying them—which seems to be by the action of the board of supervisors, upon a statement of the amount, transmitted to it by the commissioners through the township supervisor— is prescribed by one provision in the same section. If so, the following sections, 82, 83, 84, would seem to apply to both. By the latter, then, both would be required to be paid over to the treasurer of the commissioners, except as therein otherwise provided, and so the exception, as such, would be sensible if it related to so much of the road tax only as was raised upon property lying within the city—that being a portion of the tax referred to in the body of the section.

This appears to be the principal difference between the two acts affecting the question under consideration. The argument from it against the applicability of the decision in Baird v. The People receives no material aid from the differences in phraseology of the corresponding provisions in them, which have been referred to by counsel or discovered by us, and of itself is insufficient; for if the body of § 84 refers to both taxes, then the excepting clause must apply to such part of both or either as falls within the description intended by it; and that description is furnished by the proviso referred to, in the first clause of § 81, according to the Supreme Court’s construction of a precisely equivalent clause, by the designation, not of the tax, but of the situs of the property from which it is raised. The language excepts not “ what is excepted,” but “ as is provided ”—that is, in like manner, upon the same ground as in the first clause of said § 81. And every reason of policy and justice for the adoption of that ground of exception, as to the road tax, applies with equal force to the road and bridge tax.

We are of'opinion,'then, that the money in question here should be paid over by the collector to the city treasurer, and not to the treasurer of the commissioners of highways; and that the decree of the Circuit Court to the contrary was erroneous.. Said decree is, therefore, reversed, and the cause remanded for further proceedings in accordance with this opinion.

Beversed and remanded.