author:
Lacey, P. J.
      Per Curiam.

text:
    Town of Rice v. Chicago, Burlington & Northern Railway Company.

      Highways—Railroads—Exclusive Use of Road—Agreement with Commissioners—-Validity of—Estoppel—Trespass—-Prosecution for Statutory Penalty—Eminent Domain.

    1. A public highway can only he vacated in the manner provided by statute.
    2. The statute does not authorize the commissioners of highways to substitute one road for another.
    3. The commissioners of highways have no authority to surrender the entire use of a public road to a railroad company in exchange for a new road to be provided by the company.
    4. In the case presented, the town is not estopped merely because the railroad company has expended a considerable sum In providing the new road under its unauthorized agreement with the commissioners of highways.
    5. The defendant company having taken exclusive possession of the public highway in question under such unauthorized agreement, is subject to prosecution under the statute imposing a penally for obstructing a highway.
    6. It seems that property in public use can not be wholly taken for another and different public use by the power of eminent domain under the statute.
    [Opinion filed December 18, 1888.]
    Appeal from the Circuit Court of Jo Daviess County; the Hon Joseph M. Bailey, Judge, presiding.
    Mr. E. L. Bedford, for appellant.
    It is the duty of the commissioners of highways to have the care and superintendence of highways, and to take measures to open and keep them in repair, cause obstructions to be removed, etc. Pittsburg & Ft. W. R. R. v. Reich, 101 Ill. 157; R. S., Ch. 121.
    It would seem inevitably to follow, that they can have no power to grant to individuals (corporations) rights or easements in a street which might in any way interfere with the duty of preparing them for public use to meet the public necessities. St. L., A., etc., R. R. Co. v. The City of Belleville, 20 Ill. App. 580.
    As to the claim that the railway company, appellee, was authorized by the fifth clause of Sec. 20, Ch. 114, to take the road in question, to the exclusion of the public, we submit that such a right can not be claimed under the most recent decisions of our Supreme and Appellate Courts; nor can the railway company claim any authority to take this road by reason of the contract of the company with the commissioners. Such contracts are void. Pittsburg, Ft. W. & C. R. R. Co. v. Reich, 101 Ill. 157.
    In the case at bar it is obvious from an examination of the evidence that there is not sufficient room between the bluff and the Mississippi Eive'r for both a public highway and the railroad track. The public, represented by the town of Eico, had the first and permanent right to the loous in quo, and in that case the railroad must restore the road to its former condition of usefulness. See Town of Jamestown v. Chicago, B. & N. R. R. Co., 34 N. W. Rep. 728.
    The tendency of all the recent decisions and commentators on this subject seems to tend to the same conclusion; and a recent writer on the subject of eminent domain says, in construing the words used in similar statutes to our own, viz., “But such corporation shall restore the stream, street, highway, etc., thus intersected or touched, to its former state, or to such state as not unnecessarily to have impaired its usefulness,” that such words do not authorize a permanent occupation or obstruction of the highway. The word “usefulness” implies capabilities for use and appertains to the future as well as the present. The fact that the public travel over the road may, for the time being, be limited, does not lessen the duty to restore. A failure to restore constitutes a public nuisance. * * * An encroachment on a public highway can not be justified by adverse possession and enjoyment. The continuance of the nuisance is, in judgment of law, a fresh nuisance. Mills on Eminent Domain, Secs. 198, 199 and 200, and authorities cited.

      Mr. M. Y. Johnson, for appellee.
    The contract is evidence of the railroad’s right to enter upon said highway and construct its railroad, there can be no doubt. The consent given not only contemplates an obstruction to the road, but it is an absolute appropriation of the whole highway to the railroad. The law gives the railroad the right to enter upon it and build its road. They were there lawfully and rightfully, so it could not be an obstruction in contemplation of the seventy-first section.
    If it were true, which it is not, that the railroad had not restored the highway to its usefulness, as it is required both by law and contract to do, that can hot affect the case at bar, where they are suing for a penalty. But the restoring of the road is a condition subsequent to the taking, and is imposed by law, so as not to unnecessarily impair its usefulness. The topography of the ground, as in this case, may be such there is not sufficient room over the line of the route to restore the road so as not unnecessarily to impair its usefulness, and in carrying out the mandate of the statute it may be necessary to substitute some other route, as in this case. The highway commissioners selected the route where they wanted the road, and the railroad engineer located and surveyed it as pointed out by the commissioners, and the company purchased and dedicated the ground and built the road at an expense of some $6,000.
    If the railroad had to restore it on the same ground, or by the side of the old road, here it would be a physical impossibility, and there could be no railroad there, and the statute would be defeated when it says it shall be restored, “ or, to such state as not unnecessarily to have impaired its usefulness;” with the provision, the railroad may run along or over any highway the route of its road shall intersect or touch, on obtaining the consent of the lawful authorities, having jurisdiction of the road; and it then confers on the highway commissioners the charge of the roads in their respective towns; that they are to lay out, change, alter, widen or fix such roads, and to exercise such care and superintendence over the roads as the public good may require.

      The consent to occupy the road is the only inquiry in this case; not what contract they made, or what consideration moved them to make it. In what does the illegality consist, then? What makes it “void?” .The appellant does not point it out. The law imposes it as a condition we are required to show that we are lawfully there, and if lawfully there, we are not subject to the penalty, for a penalty can not be inflicted for doing a lawful act.
   Lacey, P. J.

This was a suit originally commenced before a justice of the peace by the appellant under Sec. 71, Chap. 121 R. S., known as the “Roads and Bridges act,” to recover the penalty announced in the said section for obstructing a public highway in the town of Rice, the fine being not less than three and- not more than ten dollars for the offense of obstructing a public highway as fixed by the statute.

The case was tried before a justice of the peace and appealed to the Circuit Court, and there tried anew by the court without a jury, resulting in the finding of the court and judgment in favor of the appellee, which was the defendant. From that judgment this ajrpeal is taken to this court and a reversal sought.

It appears that the appellee was a railroad company, duly organized under the general laws of the State of Illinois, and was engaged in building its railroad through said town, and in so doing took and occupied with its railroad track, embankments and fences, the entire highway for a distance of about three miles over Sections Ros. 33, 28 and 21 in said town of Rice. On the west side of the highway in question was the Mississippi River and on the east a high bluff from three to four hundred feet high, the road being located on a bench extending along the bluff so narrow that there was only room for the railroad and not room for both it and the highway. By means of the railroad structure, as above stated, the public was entirely excluded from the use of the public highway.

The evidence shows that the public had used and occupied this strip of land in question as a public highway since 1842, a period of over forty years, and had kept the same in repair. In fact, that it was a road by prescription unless the State owned it, and the appellee became the owner of it through the acts of the Legislature, which we will notice hereafter.

The appellee defended the action and claimed the legal right to obstruct the highway in the manner stated under and by virtue of an agreement with the commissioners of highways of the said town and in pursuance of Clause 5, Sec. 20, Chap. 114, R. S., entitled Bailroads and Warehouses.'

The contract with, the commissioners and appellee, so far as it related to the matter in question, was as follows:

“For the consideration aforesaid, the commissioners of highways of said town agree to permit the said railroad, or its agents or contractors, to enter upon and take possession of and use the public highway as located upon sections 33, 28 and 21 in said town of Bice, without hindrance from them, and, upon petition therefor by the lawful number of land owners residing near said last named road, will vacate the same from the residence of Mr. Bichólas Pescliang, in Section 33, in said town, north to a point at or near the residence of Mrs. Bosanna Wise, in section 21, in said town.
“Witness our hands the day and year above written, and signed by J. W. Traer as general agent of the railroad company and the highway commissioners as such commissioners.”

And the clause of the statute above cited under which the authority is claimed to make such contract, and under which its powers are enumerated, is as follows: “To have power to construct its railway across, along or upon any stream of water, watercourse, street, highway, plankroad, turnpike or canal which the route of such railway shall intersect or touch; but such corporation shall restore the stream, watercourse, street, highway, plankroad and turnpike thus intersected or touched to its former state, or to such as not unnecessarily to have impaired its usefulness, and keep such crossing in repair- * * * Provided, that in case of the constructing of said railway along highways, plankroads, turnpikes or canals, such railway shall either first obtain the consent of the lawful authorities having control or jurisdiction of the same, or condemn the same under the provisions of any eminent domain law now or hereafter in force in this State.”

The appellee took possession of the public highway under the said contract, and it is insisted by counsel for it that it is legally in possession and the contract properly made under and by virtue of the above act of the Legislature, and under which act it was incorporated, and this is the main question to be decided here. It is insisted that under this act, in case of a failure to agree with the commissioners of highways, the railway company may condemn, under the eminent domain act, the entire road, and entirely exclude the public therefrom if it should be necessary for the legitimate purposes of the railroad for its track and embankments, and the same right could be acquired by agreement with the commissioners.

On the contrary, the attorney for the appellant insists that, under the above statute, the appellee was only authorized to acquire a joint use of the highway and in such a manner that the highway should not be materially impaired for public use; that the agreement was utterly void, because it gave up the entire road to the use and occupation of the appellee. Without the act above mentioned, it has 'long been held in this State that the authorities of cities and villages can not grant away the exclusive use of a street, and the same rule applies to the commissioners of highways. Neither can one railroad condemn the property in public use by another so as to impair its utility. The Central City Horse Railway Co. v. The Fort Clark R. W. Co., 81 Ill. 523; The Peoria, Pekin & Jacksonville R. R. Co. v. Peoria & Springfield R. R. Co., 66 Ill. 174; Met. City R. W. Co. v. Chi. W. D. Ry. Co., 87 Ill. 317. In the latter case it is stated, that the decisions in other cases cited are “ put upon the distinct ground the property sought to be condemned was already inthe use and occupation of'the public and the taking a part of the road would effectually destroy the usefulness of that which remained. But that is not the case here.” 87 Ill., above, 525. The same doctrine is announced in St. L., A. & T. H. R. R. Co. v. City of Belleville, 20 Ill. App. 580, and since in same case, on appeal, approved by .the Supreme Court, 122 Ill. 482. It is deducible from all the above cases that where the right of taking property for public use exists under the eminent domain act, the statute is not to be construed as to take property already in the public use, so as to impair its usefulness for such public use, nor is there anything in the section of the statute above referred to that would indicate a change of policy.

The right to condemn a portion of the right of way of one railroad by another under the section in question, although by so doing the operations of the railroad whose right of way was sought to be taken would not be seriously impaired thereby, was brought in question in I. C. R. R. Co. v. C., B. & Q. R. R. Co., 122 Ill. 473, and it was held that the statute did not confer the power.

The question as to the right to condemn a public highway, as here, where a part of the road at least was necessary for the public use, was not directly in question, though the reasoning in the case would lead us to the conclusion that it could not be done under such act. If, then, the entire highway could not have been condemned and taken under said section and under the eminent domain act, it will be apparent that the commissioners of highways could not grant such privilege. They are the overseers of the highways, with certain duties defined by the statute, no part of which is to sell or give away the entir.e highway, which is no more nor less than vacating it. If a public highway is to be vacated it can only be done in the manner pointed out by the statute, upon the petition of twelve legal voters residing within certain distance of the road, as provided by the statute. Neither can a new road be ' laid out by the commissioners under contract with the railroad company, as attempted here.

There is no right given by the statute to substitute one road for another, as was attempted here. It appears that, by agreement between the commissioners of highways and the railroad company,- the latter purchased the right of way and graded a new road around and over the bluff east of the old road, and expended in so doing some 86,000. It was sought to substitute this new road for the old one. This, we think, was beyond the power, either of the commissioners to accept, or the appellee by its action to bind the appellants to vacate the old road. The old road must be vacated, if at all, in the legal way.

There could not be any estoppel in pais as against the appellant, because the appellee has expended money in pursuance of the agreement; for it very well knew such an agreement on the part of the commissioners was beyond their pojver and void. It is said in Railroad Co. v. The City of Belleville, 122 Ill. 376, that “no one pretends that a person having no authority to do an act can, by his conduct, estop others not responsible for his acts; and hence no reason is shown why any reliance should have been placed by the railroad company upon the acts or promises of a committee of the council which was shown to have no power itself to vacate streets, or upon the conduct of the city attorney, who was known to be equally destitute of such authority.”

The same may be said here. The commissioners of highways were powerless to vacate the road or grant it to appellee in the manner in which they attempted, and this was as well known to the appellee as any one, as their authority rested on the statxite. We do not understand, however, that counsel for appellee bases his right to introduce such evidence in order to make ou.t an estoppel, but he insists the evidence is competent by way of showing that the road was restored and its usefulness not impaired more than the necessity of the case required. This position is not tenable, as the road xvas not at all restored, but only an attempted substitixtion. Bor do we xxnderstand that the langxxage of the statute requiring a railroad company to restore the highway after intersecting or touching it, as allowed by the statute, to its former state, or to such state as not unnecessarily to impair its usefulness, can be construed to mean that, if necessai’y, the railroad company may take the entire road while it is being xxsed for the public travel, to the exclusion of the public from the use of the road.

It folloxvs, then, that the appellee was a trespasser in taking possession of the highway in question, and sxxbjeet to prosecution under the criminal law of the State for obstructing the highway in question. The whole proceeding was illegal and the obstructions were placed in the highway without authority of law.

There is another question raised by counsel for appellee. It claims title to the strip of land over which this road runs through a grant from the United States to the State of Illinois, and from the State of Illinois to a certain railroad, and from such railroad to it. But, without going into a discussion of the evidence, we think the evidence fails entirely to make out such claim, even if the State had once the right claimed, a point we need not decide; the evidence fails to show that appellee connected itself with it. Indeed it took possession under the void agreement with the highway commissioners, not claiming different right at the time. We think that the court, under the evidence, erred in finding appellee not guilty.

The judgment is reversed and the cause remanded.

Heversed and Temamded.

C. B. Smith, J. I can not concur with the reasonings or the conclusions of the majority of the court in this case. Still, if nothing more was involved than the small fine which might be imposed under this proceeding, I should let the matter pass; but much more is involved; and if the judgment of the majority of the court is correct, then the end of this proceeding is to take away from the defendant three miles of its right of way, purchased at a cost of $6,000, and also to enable the town of Bice to retain the public highway made for it by defendant, at a cost of $6,000, in lieu of the one now occupied by the defendant for its railroad track.

Two positions are maintained by the majority of the court:

First. That property once dedicated to public use by any of the various modes used to accomplish that end can not be again wholly taken while so in public use by the power of eminent domain under the statute and appropriated to another and different public use.

Second. That officers of a public highway can not, by agreement, surrender the entire use of a public road to another public use, as for example a railroad, so'as to entirely exclude tlie public from the use of such road.

The first proposition discussed by the court does not arise in this case, nor do I understand the court to make such claim; but it is discussed to aid the argument, and the conclusion reached under the second proposition by anaffigy. There was no attempt to condemn the road in controversy, and defendant rests its right to the use of the road under the contract set up in evidence with the highway commissioners.

First. I hold that the commissioners had the lawful right to make the contract set up, and that the township was bound by it.

. Second. I hold also that, even if it be conceded that the commissioners did not have the right to make this contract, still, under the circumstances in proof in this case, the township is estopped now to deny their authority.

First, as to the power to make the contract in question. So much of the 5th clause of the 20th section of chapter 114, E. S., as relates to this controversy, provides as follows: “Provided that in case of the constructing of said railway along highways, plankroads, turnpikes or canals, such railway shall either first obtain the consent of the lawful authorities having control or jurisdiction of the same, or condemn the same under the provisions of any eminent domain law now or hereafter in force in this State.” A prior part of the same clause authorizes a railroad company to construct its roadbed “along or upon any highway” under the provisions above quoted. The commissioners of highways are the officers who have charge of the roads, and the contract was made with them.

Under this clause of the statute the highway commissioners were authorized to consent to the use and occupancy of this road by the defendant, and having the power to act they could bind the town.

The statute does not point out the method nor the terms upon which the consent to the use of the road may be given. The power conferred is general. Where there is a general power given a municipal corporation to make a contract or to ■ do a particular thing, then all necessary and appropriate power to make the contract or to do the particular thing shall be implied: Dil. on Municipal Corp. Sec. 447; and where the authority conferring the power does not specify any particular mode, then any appropriate mode is permissible, lb. Sec. 449.

And so, if the power exercised is germane to the statute, the contract or thing done will be upheld as an incident to the general power. Chicago Building Society v. Crowell, 65 Ill. 453; West v. Agricultural Board, 82 Ill. 205.

Secondly. Is the town of Bice now estopped from denying lhat it had the power to make the contract in question?

The consideration which led the commissioners of highways to make this contract is not stated in the opinion of the court. What the consideration was to this township for giving up this road is very important to a just understanding of the rights, and of the subsequent conduct of the parties.

The consideration, as stated in the contract, was the location of the two other roads in the township by the railroad company, the defendant. These roads were both afterward located and laid out upon lines selected by the commissioners of highways and the road was opened, graded and fully completed by the defendant at a cost of about §6,000, and the town now has both of these roads, and are exercising ownership over them and working them, and the public using them. No question is made by the town that these roads are not now public highways, used by the town and public, nor that the defendant has not to the fullest extent kept its undertaking in good faith with the town. Indeed, the defendant has done more than it agreed. It has made a private road at considerable expense for a land owner who was discommoded by the defendant taking the old road.

The old road was taken under this arrangement in 1885, and the new public roads were commenced and completed in 1886. The suit to recover the penalty for obstructing the road was begun in April, 1887, nearly two years after the defendant had occupied and obstructed the old road under the contract, and is commenced by two of the same commissioners who made the contract with the defendant, and who directed the location and construction of the two new public highways by the defendant. None of these things were done in a corner. The occupation of the old road by the defendant, the building of the new road and the change of the travel from one to the other were all open and notorious acts, certainly known to all the inhabitants of the town, and it is reasonable to suppose that the people knew what the arrangement was with the railroad which thus brought about the abandonment of a road which had been used for forty years, and new ones substituted. Both the commissioners and the people saw the defendant expending large sums of money on these new roads, and, so far as this record discloses, not a word of protest or even objection was ever raised against the arrangement until the defendant had completed the new roads and expended its money, relying on the honesty and good faith of the commissioners and the people, and the township, were in the secure possession of the roads. Not until it was too late to restore the defendant to its original status; not until after the commissioners and township had received $6,000 as the proceeds of what they now claim' was an illegal and void contract did they ever utter a word of protest or complaint. After they are secure in the full benefit of their share of this contract, and after the defendant had expended large sums of money, for itself in constructing its road along this three miles of rugged hill-side, as well as for the township, the township, by the self-same commissioners, now seek to repudiate their own deliberate acts, and thereby perpetrate a most grievous wrong and deliberate fraud, upon the flimsy plea of ultra vires.

In the face of these deliberate and admitted acts, with the honest money of this defendant safe in their hands, these same commissioners now stand up with unblushing effrontery, confessing their fraud, and say that against such conduct there is no law. I insist that the Jaw is full and ample to estop this township and these commissioners from succeeding in this nefarious and dishonest scheme.

We have not far to search for authority to enforce so wholesome a rule of morals as well as of law. In The International Bank of Chicago v. Bowen, 30 Ill. 531, the Supreme Court crvstalizes the law on this subject in the following brief and concise statement:

“ Where an act is done or a statement made by a party which can -not be contradicted or contravened without fraud on his part, and injury to the others, whose conduct has been influenced by the act or statement, the character of an estoppel will attach to what would otherwise be mere matter of evidence, and the party will be concluded from denying or disproving it.” The rule here laid down is fully sustained by the following cases: International Bank v. Bacon, 80 Ill. 541; Chandler v. White, 84 Ill. 435; Kinnear v. Hackey, 85 Ill. 96; Noble v. Chrisman, 88 Ill. 186; McCarthy v. Lavasche, 89 Ill. 270; Carpenter v. Felter, 4 Ill. App. 45.

And in Ward, Receiver of the Merchants Bank, v. Johnson, 95 Ill. 215, the bank had borrowed large sums of money and, upon an effort being made to compel payment, the defense of ultra vires was set up, but the court held it estopped.

Where a municipal corporation has the power to act, and, under such power, enters into contract with others, and the contract becomes executed, and such other contracting parties have, in good faith, expended money on the faith of such contract, then in such cases the corporation will be bound, although the officers may have proceeded irregularly. Hitchcock v. The City of Galveston, 96 U. S. 341; State Board of Agriculture v. Street Railway, 47 Ind. 407; Alleghany City v. McClusken, 14 Pa. St. 81; Arginte v. The City of San Francisco, 16 Cal. 255.

The above cases, gathered from different States, and all cases where municipal corporations had entered into various obligations through their officers, and afterward, when the contracts were executed and others acted on the faith of these and expended money, and performance was sought to be enforced against them, they set up the plea of ultra vires as a defense, but in every instance the court held them estopped.

But if it be said we are not bound by these cases, then I quote the language of our own Supreme Court in Maher v. The City of Chicago, 38 Ill. 269, where the defense was ultra vires, where the court say: “ A municipal corporation which, by its own acts, disregards its own ordinance, is es-topped from afterward repudiating such acts.”

Without stopping to cite the authorities, I may refer to the long line of cases known as city, county and township bond cases, where bonds were issued in aid of railroad building by the various municipal authorities of this country, and upon suit being brought to compel payment, the plea of ultra vires was interposed, but with what success is well known to the courts and the bar. With wonderful unanimity the courts everywhere held the corporations estopped from denying their power, after the roads were built and the bonds had passed into the hands of innocent parties. In many, if not in most of this class of cases, the estoppel was placed on the ground that it would be a fraud to allow municipal corporations to vote bonds in aid of roads, and then, after the roads had been built and innocent people expended their money on the faith of the vote, to allow them to have all the benefits of the road and at the same time refuse to pay the bonds.

The plea pf ultra vires is designed to protect the municipal corporations against the unlawful and unwarranted acts of the officers, acting without authority, and may be invoked as a shield of defense in cases of unexecuted contracts, and in cases where the municipality has not profited by the alleged illegal acts of its officers.

But 1 think we shall search in vain for any well considered case showing that a municipal corporation may use the plea of ultra vires as a sword of offense where its officers have made contracts greatly to its financial advantage, upon doubtful, or even want of any authority, and where the municipality has ratified the alleged illegal act by taking the proceeds of the contract and deliberately appropriating them to its own use, and then be allowed to turn on its victim and again rend him and despoil him, and punish him criminally. This is carrying the rights of the plaintiff to a most unreasonable, and I think, unwarrantable extent.

With the most profound respect for the j udgment of my learned brethren, I must hold that our law is neither so venal nor so weak that it can not prevent a municipal corporation from playing the role of a highwayman.

It is insisted that the case of The St. Louis, Alton & Terre Haute R. R. Co. v. The City of Belleville, 122 Ill. 376, supports the judgment of the court and is like the case at bar. But I think the two cases are wholly unlike, both in fact and law. A careful examination of that case will show that there is no necessary conflict between that case and a long list of cases I have cited from the same court holding that municipal corporations may be and are estopped under circumstances like those disclosed in this record.

[Opinion filed May 29, 1889.]

I am of opinion that the learned judge who tried the case below was correct in his judgment in holding the defendant not guilty, and that the judgment ought to be affirmed.

On Petition for Rehearing.

Per Curiam.

Opinion of a majority of the court.

A petition is presented to ns for a rehearing in this case, and we have read the petition with the care which the importance of the questions involved requires, and have reexamined the grounds of the opinion of a majority of the court heretofore filed, in connection with the petition for a rehearing, and after a careful consideration of the same are of the opinion that the judgment of this court is correct, and that there are no probable grounds upon which to grant a rehearing. The attorney for the petitioner, the appellee herein, takes the broad ground, as we understand it, that the statute quoted in the original opinion of a majority of the court, under which the right to acquire the highway is claimed, gives it the absolute right to acquire the use of the entire road, to the exclusion of the public, by contract with the highway commissioners, or by condemnation, if such exclusive use is necessary for the proper enjoyment of the franchises of the appellee. As we said heretofore, we do not think such right was given or intended by the Legis’nture; that it only allowed a joint occupancy of the highway with the general public in such a manner as not to deprive the public of its reasonable use in common with the railroad. We are still firmly of that opinion. In P., Ft. W. & C. R. R. v. Reich, 101 Ill. 157, the words of the charter of such railroad in reference to the right of a railroad to occupy a public street, came under consideration, and it was there held that the words of its charter in prescribing its powers read: “ To construct their railroad upon or across any stream of water, watercourse, road, highway, railroad or canal which the route of its road shall intersect, but the corporation shall restore the stream or watercourse, road or highway thus intersected to its former state or in a sufficient manner not to impair its usefulness,” did not authorize an exclusive use of such stream, etc., by the railroad company, but only a joint use, and “could only be enjoyed in common with the use of the avenue by the public as an ordinary highway and without materially impairing its usefulness as such.” “ The commissioners of highways of the town of Lake had no title in this avenue and no authority whatever to barter or convey any interest therein,” says the court. The above statute gave the railroad company, the court further says {ibid. 172), “ express authority for laying tracks upon, as well as across streets or highways,” etc. The statute quoted in the original opinion herein is in all essential particulars the same as the one last quoted. It is true one phrase is inserted that contains a word not in the act last above quoted. That is, “ such a corporation shall restore the stream, watercourse, street, highway, plankroad and turnpike thus intersected or touched to its former state, or to such state as not unnecessarily to have impaired its usefulness, and keep such crossing in repair,” etc. The word unnecessarily is used; that was not in the former act; and then it reads: “ Hot unnecessarily to have impaired its usefulness,” etc. It is insisted by counsel for appellee that this qualifying word gives the railroad the right to acquire, by agreement or condemnation, the exclusive use of the highway, etc., if it is necessary for the purposes of the road. We do not concur in such an interpretation. It was no doubt thought by the Legislature that no canal, sti’eam, street, highway, etc., could be occupied without in some measure being injured or impaired by the crossing or occupation of a railroad, but that it might be crossed and occupied without materially impairing their usefulness for the original use by the public. Hence, no doubt, by the use of the word “unnecessarily ” it was intended to compel the railroad so using a public highway,” etc., to restore it to such a condition as not to impair in any degree its usefulness to the public, if it could be done, but if it could not, then as to such limited injury as was necessary the railroad would not be compelled, as the former act seemed to imply, to restore the highway, etc., in such a mariner as not to impair its usefulness ” in any degree. Any other interpretation would lead to most astonishing and sweeping results. It would give a railroad company, whenever it deemed it necessary, the right to condemn and occupy any canal, watercourse, highway or street in the entire State, to the absolute exclusion of the public from its former or public use. Can it be supposed that the Legislature ever intended to give to railroad corporations such sweeping powers as to take for their own use all the streets in the cities, all the roads and all the rivers, if it were even necessary for their use, and at the same time make them the judges? It is absurd to so contend. They are only allowed a joint use where such highways are not materially impaired for public use. As to the question of estoppel, we need only refer in support of our ruling to Railroad Co. v. City of Belleville, 122 Ill. 376, and P., Ft. & C. R. R. Co. v. Reich, 101 Ill. 157. A rehearing is denied.

Rehearing denied.

C. B. Smith, J. I still adhere to my dissenting opinion, and think the rehearing ought to be allowed, and in its support further cite Bissell v. The Michigan Southern and Northern Indiana Railroad Companies, 22 N. Y. 258, and the case of Parish v. Wheeler, 22 N. Y. 494. These cases are in harmony and fully support the views I before expressed and the authorities cited.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Moses Rohrheimer v. James K. Eagle et al.

      Practice— Bill of Exceptions—Presumption.

    In the absence of the certificate of the judge of the trial court to the bill of exceptions, the presumption is in favor of the regularity of the proceedings.
    [Opinion filed January 10, 1889.]
    Appeal from the Circuit Court of Kankakee County; the Hon. H. J. Pillsuuby, Judge, presiding.
    Mr. C. A. Lake, for appellant.
   Per Curiam.

This is an appeal from Kankakee. Upon inspecting the record we find that there is no certificate of the judge to the bill of exceptions. In the absence of this certificate we can not inspect the evidence and we must presume the proceedings of the Circuit Court were in all respects regular, and the judgment was correct, the presumption of law being in favor of the regularity of the proceedings of all courts of general jurisdiction unless it affirmatively appears to the contrary.

Judgment affirmed.


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    Cyrus C. Conant v. Esther Riseborough.

      Appeal—Interlocutory Order—Mortgages—Redemption.

    An appeal will not lie from a decree allowing the complainant to redeem property in the possession of a mortgagee, with a reference to the master to state an account, such a decree being interlocutory and not final.

      [Opinion filed January 10, 1889.]
    Appeal from the Circuit Court of Ogle County; the Hon. William Beowst, Judge, presiding.
    Messrs. Marshall & Taggert, for appellant.
    Messrs. Wm. & E. T. Lathrop, for appellee.
   Per Curiam.

This is an appeal from Ogle. Esther Rise-borough filed a bill against appellant on behalf of her daughter, Sarah E. Hashold, an insane person, asking to redeem eighty acres of land which had been conveyed to appellant by Mrs. Hashold and her husband by a deed. The bill alleged that Hashold and his wife each owned forty acres of land, and that while they were living together they executed a trust deed upon it to secure about 81,700 in money. That some time after this trust was executed Mrs. Hashold’s mind gave way, and she refused to live with her husband and went home to her mother.

The bill alleges that appellant Oonant was the brother-in-law of Mrs. Hashold, and that when she became insane he made arrangements to buy the note and trust deed from the owner thereof for the purpose of aiding and befriending his sister-in-law, and with the intention of allowing her or her friends to redeem the land. It is also alleged that Mr. Hash-old was willing and anxious that his wife should have the entire eighty acres if she or her friends would pay off the trust deed, and, to accomplish that end, it is alleged that Hasliold and his wife joined in a deed and conveyed the land to appellant for the express purpose of enabling him to hold it simply as a mortgage to secure him in what he paid for the deed and note. Oonant answered the bill, and denied all the material allegations in the bill. A replication was filed and the case heard by the court. The court found in favor of the plaintiff, and decreed her right to redeem and hold Oonant to be a mortgagee in possession, and referred the matter to the master to state an account under directions from the court, and continued the case.

From this decree appellant appeals. The decree, or order, made by the court was only interlocutory, from which no appeal or writ of error to this court will lie. There was no final decree determining the rights of the parties. This must be done before an appeal will lie. Hunter v. Hunter, 100 Ill. 519; Gage v. Eich, 56 Ill. 297; Williamson v. Borchenius, Appellate Court at Ottawa, January 20, 1888, and cases there cited.

The act of the Legislature approved June 14, 1887, p. 250, acts of 1887-8, providing for appeals from interlocutory orders and decrees granting-injunctions, or overruling a motion to dissolve the same, or for enlarging the scope of the same, or from orders appointing a receiver, etc., has no application to the kind of an interlocutory order made in this case. That was a special statute providing for appeals in the special cases named only.

Because the decree in this case is not final the appeal will be dismissed and the case remanded.

Appeal dismissed.


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    C. A. Lake v. James Lower et al.

      Practice—Imperfect Abstract—Pules.

    Where the abstract is so imperfect that this court can not obtain from it a correct understanding of the case without reference to the record, the judgment will be affirmed under the rules.
    [Opinion filed January 10, 1889.]
    Appeal from the Circuit Court of Kankakee County; the Hon. y. J. Pillsbury, Judge, presiding.
    Mr. C. A. Lake, in person.

      Mr. W. H. Richardson, for appellee.
   Per Curiam.

This is an appeal from the Kankakee Circuit Court. There is no such abstract as is required by the rule of this court.

Rule twenty provides that “The party bringing the case to this court shall furnish a complete abstract or abridgment of the record, reducing the evidence to a narrative form * * referring to the appropriate pages of the record by numerals on the margin.”

Five copies of this abstract are to be filed with the record for the use of the court. This rule requires the abstract to be of such character that the court can get a correct understanding of the whole case by reading it, without reference to the record.

From the abstract furnished us in this case we are not able to tell anything about the case by reading it. Neither the declaration nor the pleas are abstracted. The abstract of the evidence is so brief and imperfect that we can tell nothing about the rights of the parties from it.

The testimony of some of the witnesses is in the form of depositions, which are not abstracted. None of the instructions are set out in the abstract.

Rule twenty-six of this court provides that if, on the call of the docket, no abstract or brief is filed, the court will affirm the judgment. While there is not a total absence of an abstract here, yet it affords us no assistance in the trial of the case, and it must be treated as if none was filed. We can not consent to the waiver of this rule. A departure from it would impose upon us labor that we can not undertake. We have not the time, if we had the inclination, to search through the original records (sometimes containing many hundreds of pages) to find out the merits of the case.

We must insist on a strict compliance with this rule in all cases. For want of sufficient abstract, the judgment is affirmed.

Judgment affirmed.


author: C. B. Smith, J.

text:
    Wheeler Chemical Works v. Edward D. Alexander, for use, etc.

      Master and Servant—Suit for Wages—Default—Motion to Set Aside— Insufficient Bill of Exceptions.

    1. Setting aside a default is a matter of discretion upon proper showing.
    2. A bill of exceptions not purporting to contain all the evidence heard on a motion to set aside a default, is insufficient.
    3. In the case presented, the affidavits, on motion to set aside the default, fail to show diligence or a sufficient defense to the plaintiff’s claim.
    [Opinion filed January 10, 1889.]
    Appeal from the Circuit Court of Warren County; the Hon. John C. Bagby, Judge, presiding.
    Mr. Henry M. Pierce, for appellant.
    Mr. I. M. Kirkpatrick, for appellee.
   C. B. Smith, J.

This was assumpsit on the common counts for work and labor, brought by appellee against appellant. The suit was begun to the September term, 1888, of the Warren Circuit Court. The summons was issued and properly served on the 29th day of June, 1888.

Court met on the 16th day of September, and on that day defendant made no appearance nor filed any plea, and, under a record rule of court authorizing defaults on the first day of court for want of appearance or plea, the defendant was defaulted. On the morning of the second day of the term defendant appeared, by attorney, and gave the clerk a plea and paid him $1.50 for appearance fee, but the clerk then informed him of the default the day before. Defendant then entered a motion to set aside the default, and then advised the court that C. Gr. Wheeler, the president of the company, had charge of all the legal affairs of the defendant, and that he had gone abroad to Europe on business in July and was going upon the continent, and had expected to return in time to appear and defend this suit, but that he had not yet returned and would not get back until about the 25th of September; and the attorney makes affidavit that he then understood the court to say that the motion might stand undisposed of until Wheeler returned. The attorney then withdrew his plea, as he claims, at the sugguestion of the court, until after the motion was disposed of; and he also went to the clerk and asked him to return his $1.50, which the clerk did; and thereupon the attorney for defendant went to Chicago, and paid no further attention to the motion until about the last of September, when he wrote the clerk asking when his motion could be heard and when court would adjourn. The clerk informed him, as the fact was, that on September 19th his motion to set aside the default had been overruled.

This motion was taken up by the court under a record rule of the court requiring motions to be heard the next day after they are made. The defendant again, by its attorney, appeared and moved the court to set aside the judgment, and filed three affidavits in support of his motion. The substance of all these affidavits was that the plaintiff was in the employ of defendant, selling its chemical goods, but that he did not attend to its business properly, and Avas intoxicated a good part of his time and neglected the interest of his employers; that O. G-. Wheeler was the man who Avas familiar with this branch of its business and attended personally to all this kind of business; that on the 20th of July C. Gr. Wheeler, the president of the company, had gone to Europe, or the continent, on business, and had expected to be back in time to attend to this suit, but that he Avas delayed by reason of a failure to procure passage on a vessel returning in time, and that after he did start he was delayed on the high sea by unfavorable weather.

We do not think the affidavits show either diligence or a sufficient defense to the claim of plaintiff to justify the court in setting aside the default. Wheeler left for Europe on the 20th of July to travel on the continent, only fifty-five days before the convening of the court, leaving no orders or directions for the defense. He must have known that it would leave him short time for him to make that trip and return and transact any kind of business, and it was negligence in him not to have given the case his attention before leaving, or to have used the mail or telegraph in giving directions for its defense when he found he could not return in time to give it his personal attention.

Setting aside defaults is a matter of discretion in the court, upon proper showing. We do not think the court abused its discretion in refusing to set aside the default.

But there is another fatal trouble here. The bill of exceptions does not purport to contain all the evidence heard on the motion to set aside the default. Without this fact appearing, we are bound to presume the judgment of the court was correct.

Judgment affirmed.


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    The Chicago and Northwestern Railway Company v. Samuel W. Chapman.

      Carriers—Injury to Stock While in Transportation—Limitation of Liability■—Negligence—Evidence—Instructions.

    1. A common carrier can not arbitrarily fix the value of freight carried by it below its real value without the consent of the owner.
    2. There is no distinction between “ gross negligence ” and the “want of ordinary care.”
    3. A common carrier can not, by stipulation in a bill of lading, relieve itself from liability for its own negligence.
    4. It seems that the carrier may require from the shipper a correct statement of the value of freight and base the charge for transportation upon the risk incident to its carriage.
    [Opinion filed May 25, 1889.]
    Appeal from the Circuit Court of Kane County; the Hon. Isaac J. Wilson, Judge, presiding.

      Messrs. W. B. Keep, R. N. Botsford and W. C. Goudy, for appellant.
    There was a contract on a valuable consideration fixing the value of the horse for the purposes of this shipment, and the liquidated damages, in case of any injury to it, at §100.
    That such a contract was in fact made there can be no question. The plaintiff specially declared on the contract in his first and second counts, alleged that he signed it by his agent, Longshore, and that the horse was delivered for carriage to the appellant under it. Longshore also testified that he acted as Chapman’s agent in the matter of the shipment. That there was a consideration for this contract is equally clear. The receipt of the property by the defendant, and the giving of free transportation to the shipper’s agent, were of themselves a consideration; moreover, this appellant had two classifications of live stock as freight. Appellee agreed that the value of the horse should be §100, in consideration of the carriage at the reduced rate.
    The contract that the value of the horse, or the liquidated damages in case of any injury to it, should be §100, was valid.
    The agreement as to the value of the horse, or the damages to be recovered in case of injury to it, is not a limitation of the carrier’s liability for the negligence of his servants. The carrier, under such agreement, is not exempted from any of his liability; the parties have merely agreed on the value of the horse for the purposes of the shipment, or, as put in some of the authorities to be hereafter referred to, have adopted this method of liquidating the damages.
    As was said in Hart v. Pa. Co., 112 U. S. 331, “ The articles have no greater value for the purposes of the contract of transportation between the parties to that contract.”
    Or, as stated in L. & N. R. R. v. Sherrod, 4 S. Rep. 29, “ Such special contract is in the nature of an agreement to liquidate the damages.”
    Under such an agreement the carrier is liable for his own and his servant’s negligence, or for any other loss or injury for which he would have been liable independently of such a contract.

      In Hart v. Pa. Co., 112 U. S., 340, 341, the court say :
    “Thei limitation as to value has no tendency to exempt from liability for negligence. * * * The carrier must respond for negligence up to that value.”
    And in L. & N. Co. v. Sherrod, 4 S. Rep. 30, the court say: “Limitations as to value do not come under the operation of the rule that a carrier can not, by special contract, exempt himself from liability for the consequences of his own negligence, and, ordinarily, are not calculated to induce negligence. To the amount of the agreed valuation the carrier is responsible for loss occasioned by his neglect or by any of the risks or accidents for which he is answerable.”
    That an agreement as to the value of property shipped, or liquidating the damages recoverable for injury to it, is valid where the goods are lost by the negligence of a carrier, and does not come within the rule that a carrier can not limit his liability for negligence, is now well established. Hart v. Pa. Co., 112 U. S. 331; P. Ins. Co. v. Erie T. Co., 117 U. S. 322; Graves v. R. R. Co., 137 Mass. 37; R. R. Co. v. Sherrod, 4 S. Rep. 29; Harvey v. R. R. Co., 74 Mo. 538; Brown v. R. R. Co., 18 Mo. App. 568; Ghormley v. Dinsmore, 53 N. Y. Supr. Ct. 37; Hill v. R. R. Co., 144 Mass. 284; Ry. Co. v. Weakly, 8 S. W. Rep. 134; Ry. Co. v. Henlein, 52 Ala. 606; Squire v. R. R. Co., 98 Mass. 245; Maginn v. Dinsmore, 70 N. Y. 411; The Hadji, 18 Fed. Rep. 459; The Lydian Monarch, 23 Fed. Rep. 298; Elkins v. Transp. Co., 81 Pa. St. 315; Belger v. Dinsmore, 51 N. Y. 166; Steers v. Steamship Co., 57 N. Y. 1; Muser v. Holland, 17 Blatchf. 412; Hopkins v. Westcott, 6 Blatchf. 64; Wetzell v. Dinsmore, 55 N. Y. 496; Earnest v. Express Co., 1 Woods, 573. The leading case on this subject is Hart v. Pa. Co., 112 U. S. 331.
    This case is approved in the later case of Phœnix Ins. Co. v. E. T. Co., 117 U. S. 322.
    The decision in the Hart case is directly in point in our favor here. As noticed in the opinion, the Supreme Court of the United States has always held that a carrier can not contract against any negligence on the part of himself or his servants. This is a stricter rule than prevails in this State, for our Supreme Court has repeatedly held that a carrier may contract against any negligence of his servants other than that which is gross. I. C. R. R. Co. v. Read, 37 Ill. 484; I. C. R. R. Co. v. Morrison, 19 Ill. 136; Adams Express Co. v. Haynes, 42 Ill. 89; Arnold v. I. C. R. R., 83 Ill. 273; T. W. R. R. v. Beggs, 85 Ill. 80. But notwithstanding the stricter rule which prevails in the United States Supreme Court, that court upheld the stipulation as to value in the contract before them.
    Although the precise question involved in the case at bar has not been directly passed on in our courts, the Appellate Court has, in effect, affirmed the principle for which we contend. In R. R. Co. v. Harmon, 17 Ill. App. 640, a bill of lading provided that “ in case of any damage or a loss to any of the stock while in course of shipment, the same, so far as it shall fall upon said company, shall be computed at the value or cost of the same at the place of shipment under this bill of lading.”
    This agreement was held valid and binding on the shipper. The court say :
    “ The value of the animals at the time and place of shipment shall fix the basis upon which the damages were to be computed. There was nothing unreasonable or against public policy in this limitation fixing the value at the time and place of shipment as the basis upon which the damages should be computed.”
    Applying the principles of these cases to the case at bar, the lower court should have held, in accordance with our contention, that plaintiff could recover only 8100. It has been held that where there is an alternative higher rate at which the property could be- shipped at carrier’s risk for the full value, a limitation of value where the shipment is at a lower rate, is valid. Hart v. Pa. Co., 112 U. S. 331; Hill v. R. R. Co., 144 Mass. 284; L. & N. Co. v. Sherrod, 4 S. Rep. 29; Ry. Co. v. Weakley, 8 S. W. Rep. 134; Ghormley v. Dinsmore, 53 N. Y. Supr. Ct. 37.
    Messrs. Sherwood & Jones and A. H. Barry, for appellee.

      The essential elements of a contract are, that there must be two or more parties capable of using their wills freely, a subject-matter, not contrary to public policy, and a sufficient consideration.
    The appellant set up this coñtract in defense of this action, by which it is claimed that plaintiff agreed that the company should not be liable to exceed $100 for any loss or injury resulting to the horse shipped, and that the value of the horse should not be estimated at more than that sum.
    When plaintiff shipped this horse he had the alternative of signing this contract or not shipping his horse. He is not even permitted to exercise his lawful right to tender reasonable freight and have his horse carried ; for “ the agent is not permitted to receive or ship any such valuable animal until a proper contract or release is signed.”
    Who is' to determine what is a proper contract or lease ? If it means that the shipper shall take all risk of damage that the stock may do to themselves, that would no doubt be “proper,” for the law would not hold a carrier liable for such damage even without a release by the shipper. If it means a release of all damages resulting from unavoidable accidents not caused by the negligence of the carrier or its agents, that would no doubt be a “proper” release, under the law. But there is no law that will authorize a carrier to demand any release as a condition precedent to taking the stock. Neither is there any law which will authorize the carrier, or its agents, to demand that the shipper shall fix any value on his stock before he will receive it, if the shipper but pays or tenders reasonable freight charges. But under the rules and regulations of appellant, the shipper is deprived of his option to ship at carrier’s risk and pay full freight. Such an option is not open to him.
    ' Before the company will receive a horse at all, under these rules (and if it has any others we are in ignorance of them— appellant has not shown any), the shipper must agree toa valuation of $100 on his horse, no matter how valuable it may be.
    This proposition may be denied, and the statement be made that the shipper could make a special agreement and note that on the contract, but this is not true. It is true that there are words in the contract that would at first blush indicate as much; but Johnson’s testimony is that " they had but two classifications. In one, the shipper was required to sign a contract fixing the amount of damages that could be recovered in case of loss or injury to a single horse at §100; in the other classification, for which a higher rate was charged, the horses, or live stock, could be shipped without any limitation to the amount of damages,” etc. It follows, then, beyond contradiction, that the company alone fix the value to which they will be liable. The shipper has no voice in the matter whatever. The agent could not make any special arrangements with him if he would, for the company had no classification which allows it. Neither is it trne' that the shipper could ship at carrier’s risk, by paying more freight; for, as we have seen, the rules prohibit the agent from receiving a horse at all until a release is signed. Therefore, the alleged contract is made under duress of circumstances. There is allowed the shipper no freedom of choice nor freedom of will in the matter at all.
    As the Supreme Court of the United States says in the case of Railroad Co. v. Lockwood, 17 Wallace, “The carrier and his customer do not stand on a footing of equality. The latter is one individual of a million. He can not afford to higgle or stand back and seek redress in the courts. His business will not admit of such a course. He prefers, rather, to accept any bill of lading or sign any paper the carrier presents—often, indeed, without knowing what the one or the other contains. In most cases he has no alternative but to do this or abandon his business. If the customer had'any real choice—if he had a reasonable and practicable alternative, and if the employment of the carrier were not a public one, charging him with the duty of accommodating the public in the line of his employment, then, if the customer chose to assume the risk of negligence, it could with more reason be said to be his private affair, and no concern of the public.”
    What is there said of an agreement pertaining to negligence may, with equal force and propriety, be said of an agreement as to the value of the property shipped, for there is no more freedom in the one case than in the other.
    There is no pretense that there is any rate fixed by the company intermediate between a valuation of $100 and a carrier’s risk. It is claimed that the rate charged was on the basis of $100 valuation; but if the shipper should insist on any other valuation than the one arbitrarily fixed by the company, then he would have to pay rates based on the carrier’s risk; and the company had no lawful right to make any limit on valuation, if it got paid for taking all the risks itself.
    In Hart v. Pa. Railroad Co., 112 U. S., upon which appellant so firmly relies, the court stated that “ the distinct ground of our decision is, that when a contract of the kind signed by the shipper is fairly made, agreeing on the valuation of the property carried, with the rate of freight based on the condition that the carrier assumes liability only to the extent of the agreed valuation, even in case of loss or damage by the negligence of the carrier, the contract will be upheld,” etc. In order for the contract to be fairly made, the shipper must have an election as between two or more propositions; for if the company’s proposition is all one way, and presents no alternative but to accept it as it is or not ship his stock, he has no choice, no freedom of action. He is coerced to sign or not ship.
    Tested by the rule of freedom of will by the fairness and reasonableness of the contract, which is made the rule in the Hart case, and also in the Lockwood case cited above, and in fact by every case holding this doctrine, this contract does not come within the scope of any of such cases. In the Hart case there were no conditions precedent made by the carrier to the shipper’s right to ship, or to the carrier’s receiving the stock. The contract did not provide that the shipper should sign a release of any kind before the carrier would receive his stock, but the terms and conditions named in the contract were “admitted and accepted” by the shipper “to be fair and reasonable,” and the valuation was agreed upon. The rate of freight was agreed upon in specific terms, and nothing left for intendment or explanation, and no explanations were offered. In fact, there is no single point of similarity between the contract in that case and in this.
    The authorities are uniform all over the United States that all contracts of this character are to be construed strictly, and most strongly against the carrier. We believe not one single authority can be produced which holds that any other rule of construction applies.
    “Where general words in the contract of a common carrier, limiting his liability, may operate without including the negligence of the carrier, or his servants, it will not be presumed to include it. Every presumption is against such an intention, and the contract will not be construed as exempting from liability for negligence unless it is expressed in unequivocal terms.” Maynard v. S. B. & N. Y. Ry. Co., 71 N. Y. 180: Holsapple v. R. W. & O. Ry. Co., 3 Am. and Eng. R. R. Cases, 487.
    There is not only no attempt made by this contract to exonerate the company from loss by negligence, but, on the other hand, it excepts the result of negligence from the stipulations in the contract, and especially the results from the collision of trains.
    Can a common carrier for hire, in this State, limit, by contract, his liability to a shipper in case of loss occasioned by gross negligence of the carrier?
    The law would seem to be settled in this State, that under no circumstances can a carrier contract against his own gross negligence. Illinois Central R. R. Co. v. Adams, 42 Ill. 474; Ill. Cent. R. R. Co. v. Read, 37 Ill. 485; Oppenheimer v. U. S. Express Co., 69 Ill. 62 ; Black v. Goodrich T. Co., 55 Wis. 319; New Jersey Steam Navigation Co. v. Merchants’ Bank, 6 How. 344; Railroad Co. v. Lockwood, 17 Wall. 357; Bank of Kentucky v. Adams Express Co., 93 U. S. 174; Candee v. W. U. Telegraph Co., 34 Wis. 471; Hibbard v. Telegraph Co., 33 Wis. 558 ; Morrison v. Construction Co., 44 Wis. 405 ; U. S. Express Co. v. Backman, 28 Ohio St. 144.
   C. B. Smith, J.

The record in this case discloses this state of facts: In June, 1887, and for a year or more before that time, appellee was the owner of a valuable pacing race horse named “Riley,” which had been kept and used for racing purposes for the years 1886 and 1887. In June, 1887, plaintiff’s horse, with many others, was in the races then held at Rockford, Illinois. The races there were brought to a close on the 4th of June, 1887, and the owners of the various horses were ready to go to Freeport, where the next meeting, or series of races, was to be held in a short time. While the owners of the horses were still on the race track, or at the grounds where the races were held, the agent of the appellant went in person to the race track and had a consultation with the owners, and those in charge of the horses, and asked them to ship to Freeport over the Chicago & North Western Railway, and promised them that if they would ship their horses and baggage over his road he would give them a special train for their horses, and attach a passenger, coach to it for the men.

This proposition was' accepted by the owners and men in charge of the horses, and the special train was made up, consisting of eight or ten cars of horses and the passenger coach. The horses were placed in the cars and billed for Freeport, but whether the horses were billed before or after they were put in the cars does not appear, nor is it material which was done first.

James Longshore was in charge of plaintiff’s horse, the plaintiff being absent. A bill of lading was made out and handed to plaintiff’s agent. This bill of lading was headed or entitled thus:

“Chicago & North Western Railway Co. Live Stock Contract.”

Among other things, this contract had the. foil owing provision, viz: “No liability will be assumed on horses or valuable live stock for more than §100 per head, unless by special agreement, noted hereon, and agents are not permitted to receive or ship such valuable animals until a proper contract or release is signed by the owner or shipper thereof. And it is agreed between the owner of these animals and the said railway company that in case of accident, resulting in injury to the animals, the value thereof shall in no case be estimated at more than §100 for each animal so injured.”

Another provision of the contract read thus:

“Rookfobd, III., Station, June 4, 1887.
“Received of J. Longshore, four horses, to be delivered to J. Longshore at Freeport Station, at special rates, Tff dollars per car for horses, mules, etc. In consideration of which and for other valuable considerations it is hereby mutually agreed that said company shall not be liable for loss by jumping from the cars, delay of trains not caused by negligence as aforesaid, or any damage said property may sustain, except such as may result from a collision of the trains or when the cars are thrown from the track in course of transportation.”

There was also a provision in this contract entitling one man with two or three cars to a pass, to go with his stock, and, in certain cases, one man with one car of stock might be entitled to a pass. These are all the provisions of this contract that are involved in this controversy.

At the time this bill was made out and handed to Long-shore, the agent asked him no questions as to the value of the horse, nor did Longshore give him any information on that subject, so far as the record shows. This contract was signed by the agent of the company and by Longshore, as the agent of Chapman, the owner. Soon after, the train, with the horses and men, started on its wa.y to Freeport, and soon after it started, commenced going on a very rapid rate of speed. The witnesses, several in number, all agree that the train was running from thirty to forty-five miles an hour. This they determined by timing the train with their watches. One witness testifies the train was running at the rate of a mile in one minute and eleven seconds. While this rate of speed was being made the train collided with a construction train near Ridotte. The construction train was backing, down and met the special train containing the men and horses on a curve, without any kind of warning to either train; at least none is shown in the record. The result was, as stated by some of the witnesses, that “everything was all smashed up.” Plaintiff’s horse was so injured that he is wholly worthless.

hfo explanation was given or offered on the trial below in justification of the conduct of the defendant's servants, either for running the train at so high a rate of speed, or for the collision of the two trains. The crews of both trains were discharged by the officers of the company the next day after the collision. The evidence in the case clearly established very gross, if not reckless and criminal negligence on the part of the servants in charge of these trains, or of those directing the movement of trains.

After the injury to plaintiff’s horse, the defendant tendered the plaintiff §110, and insisted, under the terms of the bill of lading or shipping contract, that §100 was the limit of its liability. This amount the plaintiff declined to accept, and brought suit for the full value of his horse. The declaration contained two counts. The first count recited the contract in full, and the second only the clause limiting the defendant’s liability to §100. Both counts alleged that the accident and injury to the plaintiff’s horse was caused by the gross negligence of the defendant’s servants operating the trains, and that the contract limiting the value of the horse and liability of the defendant to §100 was no protection to the defendant when the injury was caused by the gross negligence of the defendant.

The pleas were the general issue and two pleas of tender and payment into court of §110.

On the trial it was stipulated that Mr. Burton Johnson, the assistant general freight agent of the railway company, would, if present, testify that at the time this freight was shipped at at that station the company had two classifications under which live stock was shipped. In one class the shipper was required to sign a contract fixing the amount of damages that be could recover in case of loss or injury to a single horse at §100; and that they also had another classification, for which a higher rate of freight was charged, under which' the horses or live stock could be shipped without any limitation to the amount of damage that could be recovered in case of their loss or injury.

The defendant also offered to prove that these classifications were shown by lists published by the company, under the inter-state law. The Western classification of the inter-state law was offered in evidence as follows:

“Live stock in car loads, limited under contract—See tariff. Live stock in car loads, carrier’s risk—-See tariff.”

The plaintiff and his agent, Longshore, both testified that they never knew or heard of any other mode or classification or rate for shipping live stock over defendant’s road except the one used by the company at the time of the accident to plaintiff’s horse, and that neither the defendant nor its agent had given them any notice of any other different mode or rate of shipment than the one used on this occasion. Chapman testifies he had frequently shipped horses over defendant’s road before, and had always shipped under the contract used on this occasion, and did non know they had any other.

On tlie trial, plaintiff called a number of witnesses acquainted with the value of this horse, and they all placed his value at §3,500 to §4,000. One witness for plaintiff placed his value at from §3,000 to §4,000.

One witness only was called for defendant, who, after having heard of the speed of the horse from other witnesses, placed his value at from §5,000 to §6,000, if he had been sound, he supposing the horse had some blemishes about one of his limbs that affected his value somewhat, but he was the only witness who knew of any supposed blemish. The proof also showed that the horse was fast and that he had a record of 2:20, and won several races at that speed and from that to 2:25.

The case was tried before a jury and the plaintiff had a verdict for $3,290, and, after overruling a motion for a new trial, the court rendered judgment for the plaintiff on the verdict.

The defendant brings the record here on appeal, and asks for a reversal of the judgment. LTumerous errors are assigned, but they are all involved in a single question, and that is whether the contract of shipment, signed by both parties, limiting the right of recovery for the horse to §100, when the proof shows he was injured by the gross negligence of the defendant, can be interposed as a successful and valid defense, so as to prevent the plaintiff from showing and recovering the full value of his horse.

The court below, on behalf of the plaintiff, instructed the jury, in substance, that while it was lawful for the defendant to enter into the contract shown in the case, still it was against public policy and the law to allow it to be available as a defense in case the proof should show the injury to the horse was caused by the gross negligence of the defendant’s servants, and that if the proof showed the defendant guilty of gross negligence, then the jury should award the plaintiff the full value of his horse, notwithstanding the contract.

The defendant asked the court to instruct the jury “ that if they believed from the evidence that the defendant had two classes of rates, the lesser rate being based upon a valuation, as prescribed in this contract, and a higher rate for more valuable horses, based upon a valuation to be fixed by special agreement, signed by the shipper or owner of the animal, and that the contract in this case wa; based upon the lower rate, and thereby secured the shipment of the horse at a less rate than he could have been shipped under a special agreement, then the plaintiff will be limited in his recovery upon the contract to the value of the horse as fixed therein;” but the court refused to give this instruction as asked, but added to it the following words: “ provided the injury complained of was not occasioned by the negligence of the defendant;” and then the court gave the instruction as modified. The defendant excepted to the giving of the instruction as asked for the plaintiff and also to the refusal of the court to give its instruction as asked, and to the action of the court in giving the instruction as modified.

These two instructions present the two theories upon which the case was tried in the court below. The defendant offered no evidence below tending to contradict either "the negligence of the defendant in operating the train or to reduce the value of the horse below what it was found to be by the verdict of the jury.

The evidence clearly establishes these propositions:

1. That defendant shipped and injured plaintiff’s horse as alleged.

2. That the injury to plaintiff’s horse was the result of gross negligence of the defendant.

3. That the horse was worth the full amount of the verdict.

4. That the defendant had two methods and two rates for shipping live stock, the one lower than the other.

5. Heither the plaintiff nor his agent, had any notice or knowledge of but one rate used on the occasion of this shipment.

We shall, therefore, consider the case upon the theory that the defendant was guilty of gross negligence in causing the injury to the horse, because that is the proof.

The defendant places its defense broadly upon the terms of the limitation in the contract restricting the extent of its liability to 8100 in the case of loss or injury to the horse, and insists that the contract is not against the negligence of its servants, but simply a method of ascertaining in advance what shall be the measure of defendant’s liability in case of injury of or loss to the stock.

The plaintiff’s contention is directly the reverse of this proposition. He insists that the direct effect of this contract is to relieve the defendant from the consequences of its negligence just to the extent of the difference between the actual value of the horse and the 8100 named in the contract, which in this case is about 83,200.

The authorities upon this question outside of this State are at war with each other and are utterly irreconcilable. There is much authority, and of a very high character, upon both sides, and anything like a full and general review of them would extend this opinion far beyond our necessity or purpose.

But a brief reference to a few of the authorities may be justified upon the ground of the importance of the question involved, as well as the amount of money involved in the contest.

The principal case relied on by defendant as supporting their contention broadly and fully is the case of Hart v. The Pennsylvania Company, 112 U. S. 331. That case is, in all material respects, like the one at bar. Two race horses were shipped and injured, with a contract limiting their value to 8200 each in case of loss, and providing the railroad company should not be liable for any greater sum in case of loss.

The case came before the Supreme Court of the United States on appeal, and the chief question in the case was whether the contract, with its limitation of 8200, could be interposed in bar of the plaintiff’s right of recovery for the full value of the horses, where the proof showed the injury to the horses was the result of the defendant’s negligence. The proof showed the horses were injured through the negligence of the defendant. The court there held that the shipper was estopped to show that the real value of the hoi-ses was greater than that stated in the bill of lading, and that the company had the legal right to limit its liability by contract, and that such limit was binding and conclusive against the shipper, even where the injury to the shipper was the result of the defendant’s negligence in transporting the horses. The court further says: “The limitation as to value has no tendency to exempt from liability for negligence. It does not induce a want of care. It exacts from the carrier the measure of care due to the value agreed on. The carrier is bound to respond in that value for negligence. The shipper is estopped from saying the value is greater.”

In harmony with Hart’s case, and maintaining the same doctrine, are the following cases: Railroad Co. v. Sherrod, 4 S. Rep. 29; Insurance Co. v. Erie Toy Co., 117 U. S. 332; Graves v. R. R. Co., 137 Mass. 37; Hill v. R. R. Co. 144 Mass. 428; Railroad Co. v. Weakly, 8 S. W. Rep. 134; Ghormly v. Dinsmore, 53 N. Y. Sup. Ct. 36; Harvey v. Railroad Co., 74 Mo. 548.

The foregoing authorities will all be found in substantial harmony with the rule in Hart’s case.

As against these authorities we think the great weight, both in number and value, are found directly against them. We refer to a few of them.

In McFadden v. The M. P. R. Co. (Sup. Ct. Mo.), 4 S. W. Rep. 689, there was a contract with a limitation like the. one at bar, and the defendant insisted that that was the limit of its liability, but the court says: “The law is firmly established in this State that the common carrier can not, by any sort of stipulation, exempt himself from the consequences of his own negligence.” In Black v. Goodrich Trans. Co., 55 Wis. 319. there was a shipment of a barrel of whisky, and a contract limit in the bill of lading put upon the right of recovery in case of loss at $20. The whisky was lost by the negligence of the defendant, and the company pleaded this limit in defense. The court says in its opinion: “We think it has been settled by the decisions of this court, the Supreme Court of the United States (the Hart case was decided afterward) and many of the State courts in which the question has been considered, that a common carrier of persons or property can not, by agreement, however plain and explicit, wholly relieve himself from responding in damages to the party injured when such injury is .the result of gross negligence on the part of the carrier or his servants. This rule is, by most of the courts, founded upon public policy, and a want of consideration to support the agreement. This whole question has been so often, so thoroughly and so exhaustively discussed in the decisions cited, that it would be a waste of time, as well as futile, to attempt to add anything to the confirmation of the general rule as stated”—citing Navigation Co. v. Bank, 6 How. 344; Railroad Co. v. Lockwood, 17 Wall. 357; Bank of Ky. v. Adams Ex. Co., 93 U. S. 174; Candee v. Telegraph Co., 34 Wis. 471; Hibbard v. Telegraph Co., 33 Wis. 558; Morrison v. Construction Co., 44 Wis. 405.

In the case of Moulton v. St. Paul, M. & M. Railway Co., 31 Minn. 85, the action was to recover the value of two horses, each of the value of $200. Theré was a- limit in the bill of lading, signed by both parties, providing that in no event would the defendant be liable for more than $100 on each horse, in case of loss. The horses were lost or injured by the negligence of the defendant. The court says:

“ The law has been determined in this State, and most of the United States, as well as in the Federal Supreme Court (this also was before the Hart case), to be that a common carrier of goods can not, by contract, relieve himself from liability for his own negligence. * * * The rule itself rests upon com siderations of public policy, and upon the fact that to allow a common carrier to absolve himself from the duty of exercising care and fidelity is inconsistent with the very nature of his undertaking. * * * The same reasons which forbid that a common carrier should, even by express contract, be absolved from liability for his own negligence, stand also in the way of any arbitrary re-adjustment of the measure of damages whereby the carrier is partially relieved from such liability. It would be absurd to say that the requirement of the law as to such responsibility of the carrier is absolute, and can not be laid aside even by the agreement of parties, but that one-half or three-fourths of this burden may be laid aside by means of a contract limiting the recovery of damages to one-half or one-fourth of the known value of the property. This would be a mere evasion, which the law will not tolerate.”

In the case of U. S. Ex. Co. v. Bateman, 28 Ohio St. 144, there was a shipment of a large quantity of whisky, subject to what was understood and known by the plaintiff below as “ the twenty dollars clause” in the bill of lading. The whisky was lost by the negligence of the defendant, and suit brought to recover for its full value. The court in that case says:

“The Ohio cases hereinbefore cited make it clear that common carriers can not, by contract, exempt themselves from liability from full damages for a loss occasioned by their own negligence or that of any of their servants. Ho more can they stipulate for a partial exemption from liability caused by like negligence. The public policy that avoids a contract for total exemption will hold a contract void that provides fora partial exemption. In such case the fact that by reason of such contract the carrier undertook the transportation of the goods for a diminishable reward can avail him nothing.”

In The Railroad Co. v. Simpson, 30 Kan. 645, the contract was for a limited liability in case of loss, but the court held that such a contract will be no protection against a recovery for the full value where the loss was occasioned by the negligence of the carrier. And to the same effect are the following cases: Grogan v. Express Co., 114 Pa. St. 523 ; Express Co. v. Sands, 55 Pa. St. 140; Express Co. v. Holmes (Sup. Ct. Pa.), 9 Atl. Rep. 166; Steamboat City of Norwich, 4 Ben. 271; Galt v. Express Co. (Sup. Ct. Dist. Columbia); Orndorf v. Adams Express Co., 8 Bush (Ky.), 194; Marr v. The Telegraph Co. (Sup. Ct. Tenn.), 3 S. W. Rep. 496; Railroad Co. v. Abels, 60 Miss. 1071.

But we turn now to consider briefly the cases decided in our own Supreme Court, and which we regard as conclusive against the contention of the defendant, without regard to the decisions in other States.

In Ill. Cent. R. R. Co. v. Adams, 42 Ill. 474, there was a contract in the bill of lading limiting the liability of the defendant in case of loss to a sum greatly less than the value of the property shipped. The shipment consisted of a lot of hogs, and through the negligence of the company some of the hogs died for want of being drenched with water from the tanks. Suit was brought, and the plaintiff had judgment for the full value of his hogs, notwithstanding the limitation in the contract of shipment. The Supreme Court held that inasmuch as the hogs were lost by the gross negligence of the defendant, it could not contract against such negligence.

In Ill. Cent. R. R. Co. v. Read, 37 Ill. 485, it appeared that Bead was riding on a free pass which stipulated against all liability from damages from whatever cause. It appeared that Bead was injured, and the jury found the defendant’s servants guilty of gross negligence, and the court held that, as against such negligence, the defendant could not contract, and that such stipulation could not be available in case of gross negligence.

In Adams Express Co. v. Stettaners, 61 Ill. 184, it appears that certain goods were shipped to Chicago from New York, worth in fact $415.50, but the company gave the shipper a receipt limiting its liability to $50 in case of loss. The shipper had notice of the limitation in the receipt when he took it. The goods were lost by the negligence of the defendant. In deciding this case the Supreme Court in its opinion says: “ Even if it should be conceded that the s upper in this case must be considered as having assented to the terms of the bill of lading, we can not hold the carrier excused from the exercise of reasonable and ordinary care. Courts have often had occasion to express regret that common carriers have been permitted, even by contract, to discharge themselves from the obligations imposed by the salutary rules of the common law. Practical monopolies, as they often are under the modern system of railway transportation, they seek to impose their own terms upon the public, and compel the shippers to accept such hills of lading as they may choose to issue, or not ship at all. The exemption relied upon by the defendant in the present case furnishes an illustration. It is very unreasonable in the carrier to say that it in no event will be liable beyond the sum of §50 in the absence of a special contract, though it may have received much more than that sum merely in the way of freight. If common carriers desired to deal fairly with the public it would be very easy for them to require the shipper to specify the value of the merchandise and insert the amount in the receipt, making their charges in proportion to the liability. If the shipper should falsely state the value, he could not complain at being held at his own valuation. In order to prevent the carrier from releasing himself, by contract, from all liability, courts have laid down the rule above stated—that he can not, even by contract, exempt himself from the exercise of reasonable care.”

In Oppenheimer v. U. S. Express Co., 69 Ill. 62, in speaking of these receipts and contracts containing limitations upon liability of the carrier, the court says: They are not to be read as providing against losses or injuries occasioned by their own negligence. The established legal construction is otherwise.”

In Boscowitz v. Adams Ex. Co., 93 Ill. 523, the court says: “ The law has wisely, and for reasons that concern public interests, inhibited a common carrier of passengers or freight from contracting against its own negligence, and notwithstanding it may be so expressed in positive terms in the release, it is not to be read as providing against losses or injuries arising from actual negligence.”

These repeated decisions of the Supreme Court of this State upon the precise question involved in the case at bar would seem to require only a citation to show that the question can not now be regarded as open in this Stale for further discussion. Under these authorities we have neither the right nor inclination to adopt the rule laid down in Hart’s case, supra, but, on the contrary, the rule as held by the Supreme Court of this State meets our full approval. We hold that while common carriers can not, under the law, be permitted to fix arbitrarily the value on freight they ship at prices below its real value, without the full, free and voluntary consent of the shipper, fairly and understanding^ entered into, and with the purpose of fixing its value; yet we also hold that common carriers have a lawful right to demand and require of the shipper a correct and honest statement of the actual value of his merchandise and to insert such value in the bill of lading, and then to charge the shipper a just and reasonable compensation in proportion to the risk they assume in transporting his property.

By such value, when so fixed, the shipper should be bound, in case of loss or injury to his property, although the carrier might show the property to be of less value than stated by the shipper.' Such a rule would be reasonable and just to both parties. There is no hardship in the law requiring common carriers to demand a correct and truthful statement from shippers of the real value of their property; nor is there any hardship or injustice in requiring the shipper to pay a full and fair compensation to have his merchandise shipped in proportion to its value.

But it is finally insisted that this judgment must be reversed because the court refused the second instruction as asked by the defendant, but modified it by adding the proviso heretofore referred to, and in giving it as modified.

For the reasons before given, the second instruction as asked was properly refused, and for the additional reason that the proof shows that the plaintiff had no notice of any other rate of transportation or of any other mode of shipment except the one offered him by the defendant’s agent.

As to whether the proviso added by the court to the instruction announced a strictly correct rule of law in using the word negligence ” instead of the words “ gross negligence,” we think unnecessary to inquire, inasmuch as there was no claim made on the trial below or here that the negligence which caused the injury to the plaintiff’s horse was not of the very grossest character and was so shown bj the uncontradicted proof in the case.

But aside from this we understand that the Supreme Court makes no distinction between gross negligence and want of ordinary care in Oppenheimer v. U. S. Express Co., 69 Ill. 62, and Boscowitz v. Adams Ex. Co., 93 Ill. 523; and we think that, under these authorities, the proviso added to the instruction was not open to the criticism made. We are aware that in a number of cases of this character, in argument, the Supreme Court has used the term “ gross negligence ” instead of the single word “negligence,” or “ordinary care,” but we understand that under the law as now settled by numerous decisions in this State, “ gross negligence” and “ the want of slight care ” are convertible terms and mean the same thing.

In the second instruction given for the plaintiff the jury was told that the proof must show gross negligence on the part of the defendant to entitle the plaintiff to recover. We think, therefore, even if the proviso added by the court was not strictly accurate, still it did the defendant no harm.

We have patiently and carefully considered this case, even at the risk of extending this opinion to a greater length than we intended, and are unable to find any substantial error in the record, and the judgment is affirmed.

Judgment affirmed.


author: Upton, J.

text:
    Henry Pearson and Julius Miller v. Oliver Bunker.

      Replevin—Appeal Bonds—Costs—Consolidation of Claims—Former Adjudication.

      1. The statute requiring the consolidation of claims in suits before justices only applies to claims which are capable of consolidation in a legal sense.
    2. A judgment on a replevin bond does not bar an action for costs on an appeal bond given in the same case.
    [Opinion filed May 25, 1889.]
    Appeal from the Circuit Court of Iroquois County; the Hon. Alfred Sample, Judge, presiding.
    Messrs. Doyle & Morris, for appellants.
    The replevin bond in this case contains the conditions to prosecute the suit with effect and save and keep harmless the said constable in replevying said property. Under a bond of this character it has been held that damages maybe recovered, and the costs sustained by the defendant in the replevin suit are properly allowable as damages. The replevin bond is as well for the benefit of the party defendant in the replevin suit as for the officer. Fahnestock v. Gilham, 77 Ill. 937.
    The costs may be recovered in an action on a replevin bond. Humphrey v. Taggart, 33 Ill. 228.
    It has also been held that, under a replevin bond similar to the one in question, containing the clause to save and keep harmless the officer replevying the property, damages for detention may be recovered, and the costs of defendant in replevin suit may be in the same action recovered. Languedoc v. Parkinson, 2 Ill. App. 136.
    Both claims when consolidated would not exceed $200; hence there could be no sound reason why they should not have been consolidated, the law being, as we have shown, that suit could have been maintained for both items under the conditions of the replevin bond. Hot having done so, we now urge that the judgment obtained on the replevin bond in evidence constitutes a complete bar to a recovery on the appeal bond. Barker v. Thompson, 11 Ill. 563; Casselberry v. Forquer, 27 Ill. 170.
    Messrs Kay & Euans, for appellee.
   Upton, J.

This action was brought originally before a justice of the peace on an appeal bond to the Circuit Court in a replevin suit. The defendant in the replevin suit was defeated in the Circuit Court, and a return of the property awarded.

The property was afterward returned and the defendant in the replevin case then brought suit on the replevin bond before a justice of the peace in the name of the constable to whom it had been given, for his use, and in that suit recovered a judgment in debt for the penalty of the bond, $250, and $57 damages, which damages did not include appellee’s costs in Justice or Circuit Courts. After that judgment had been obtained and satisfied by the defendants, Bunker commenced the suit now before us on the appeal bond given in the replevin case, to recover costs, and on the trial in the Circuit Court recovered a judgment for $75 debt and $75 damages, which damages, it was stipulated, was the amount of costs in the replevin suit adjudged appellee before the justice and in the Circuit Court.

Appellants bring the case to this court, contending that the Circuit Court erred in giving judgment on the appeal bond, for the alleged reason that the appellee, having elected to bring suit on the replevin bond, was bound in law to bring forward all claims that could legally be consolidated in that action, pursuant to Sec. 49 of Chap. 79, R. S., and that a recovery of the costs for which this suit is brought might have been had in the suit on the replevin bond. And it is further claimed that the parties in both bonds are the same, and hence should have been consolidated, and to sustain this view is cited Barker v. Thompson, 11 Ill. 563 ; Curtis v. Ferguson, 27 Ill. 170, and Languedoc v. Parkinson, 2 Ill. App. 136.

In this contention of appellants we are unable to concur.

The statute only requires such claims of the plaintiff to be consolidated as are capable of consolidation in a legal sense. The appellee’s demands consist of two bonds: one in his own right, known as an appeal bond, the condition of which was that if “ Henry Pearson shall prosecute his appeal with effect, and shall pay whatever judgment may be rendered against him by the said court on appeal, or by consent, or in case the appeal is dismissed, will pay the judgment rendered against him by said appeal, then the obligation to be void,” etc.; the other, given to one Andrew C. Johnson, a constable, known as a replevin bond, the condition of which was “ that if Henry Pearson, plaintiff, shall prosecute his suit to effect, and without delay, and make return of said property if return thereof shall be awarded, and save and keep harmless the said constable in replevying said property, then this obligation to be void,” etc.

In the suit on the replevin bond in the name of Johnson, for .appellee’s use, he could not recover anything by its condition.-; on the appeal bond as executed directly to himself, nor in case of a suit on the appeal bond in his own name, could appellee recover for damages for the detention of the property provided for in the replevin bond.

The case at bar is in many respects similar to that of Kantzle v. Albertson, 18 Ill. App. 313, in which Justice McAllister, writing for the court, says: “ In order to recover damages for not making return of the property replevied, suit should have been brought upon the replevin bond instead of the appeal bond. Sec. 10 of the replevin act expressly requires such bond to a condition that the plaintiff in replevin will make return of the property, if return thereof shall be awarded. Nothing of the kind is required by any statute to be contained in the condition in a bond to be given upon, appeal from a justice's judgment, and no such effect was intended by the Legislature to be given to such appeal bonds''

But there are no trusts or orders in the condition as to the appeal bond on which this suit was brought which can be construed into an obligation on the part of the principal in the bond or his surety to make return of the property replevied to the obligee or any other person. The obligations of the principal and sureties in a bond can not be extended beyond theplain and direct terms of such bond. The lam will not create a liability against a surety which he has not brought upon himself by his contract.

Hence, in the case at bar, under the plain provision and conditions in the bonds mentioned, as well as the settled principies of law, a judgment for the use and detention of the property replevied, without costs, would bar a further suit on the replevin bond, but it would not bar a suit for costs on the appeal bond. Manifestly, the judgment of the court below was correct, and its judgment must be affirmed.

Judgment affirmed.