author: Mr. Justice Scholfield

text:
    Richard Mascall v. The Commissioners of Drainage District.

      Filed at Ottawa November 11, 1887.

    1. Eight of tbial by jury—on appeal from assessment wnder Drainage law. A land owner, on appeal to the county court from an assessment, under section 27 of the Drainage act, approved June 27, 1885, is entitled to a trial by a jury, if he demands one, on the question whether his land will be benefited by the proposed improvement, and if so, as to its extent.
    2. Same—in the cownty court. The practice and pleadings in all common law cases in the county court are made the same as in the circuit court in similar cases. In the trial of questions of fact in all common law cases in the latter court, either party is entitled to a jury.
    3. Same—in the county court at a probate term. In this case the appeal from the drainage assessment was to a probate term of the county court, which is allowable under the statute, and it was contended that, as there was no jury at a probate term, it was intended the judge, alone, should try the case. But the point was not well taken. The statute expressly provides, that “the court shall have the power to impanel a jury in any case cognizable at the probate terms, as well as at the law terms, whenever it shall be necessary for the trial of any matter pending before the court.”
    Appeal from the County Court of Henry county; the Hon. John P. Hand, Judge, presiding.
    The commissioners of the North Edwards Special Drainage District of Henry county, made an assessment upon the land of Bichard Mascall, for drainage purposes. Mascall appealed ' to the county court, and in that court demanded a jury, which was refused. The case was tried by the court without a jury, and at a probate term.
    The questions presented are, first, whether the. land owner was entitled to a trial by jury on his appeal to the county court; and second, whether the fact that the appeal was to a probate term, would affect the question of the right of trial by jury at that term.

      Mr. Charles K. Ladd, for the appellant.
    Messrs. Dunham & Foster, and Mr. A. E. Mock, for the appellee.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The question here is, whether the land owner is entitled to a jury, on an appeal to the county court, under section 27 of the Drainage act, approved June 27, A. D. 1885. (Public Laws of A. D. 1885, p. 87.) That section provides, that “any party against whose land a tax has been thus levied, may, within ten days after the list has been deposited with the town clerk, appeal to the county court, by filing a bond, in double the amount of tax appealed from, in the county clerk’s office; but the appeal shall he upon the ground, only, that such tax is a greater amount than the benefits to accrue to the land in question by the proposed drainage. Appeals taken to the county court, under the provisions of this act, may be heard at any term thereof, "* * * and trial shall be conducted as in other cases of appeals. If the court finds that the tax exceeds the benefits to accrue, the court shall modify the same, so as to make it equal to the benefits, and the costs may be apportioned by the court, in its discretion.”

What is meant by the words, “and trial shall be conducted as in other cases of appeal ?” Counsel for appellee contend that a jury is not embraced within their meaning, and counsel for appellant contends that it is. To our minds it is clear the meaning is, that the trial shall proceed through the same steps and in the same way as in other cases of appeal,—in other words, that the appeal shall be tried precisely as other appeals are tried. Whether a jury is allowed or denied, affects the conduct of the trial, because it affects the manner of deciding .questions of fact. We can not perceive that refusing to allow witnesses to be heard, or requiring the case to be tried with or without written pleadings, would any more be within the meaning of the word “conducted,” in this connection, than is the allowing or refusing a jury. It is to be kept in mind that a jury is not a tribunal, but an element, simply, in a tribunal, and where a jury is an element in a tribunal, its impaneling, verdict, etc., are obviously but steps, and a part, only, of the steps, as the rulings of the judge in receiving the verdict, overruling motion for new trial, and rendering judgment upon the verdict, are other steps in the conducting of the trial, in the only sense in which, it would seem clear, the word “conduct” must have application to a trial. In such case, it would seem, the trial is conducted by the court by means or through the instrumentality of both judge and jury,—each performing, properly, a function of the court in the trial.

This then leads to the inquiry: How is a trial conducted in other cases of appeal to the county court ? All other cases of appeal to. the county court are to it as a law court. Its probate jurisdiction is all original. It is provided by section 7 of the act in relation to county courts, approved May 21, A. D. 1877, (Laws of 1877, p. 77,) that the county courts shall have concurrent jurisdiction with the circuit courts in all cases of appeals from justices of the peace and police magistrates. And section 177 (Eev. Stat. 1874, p. 343,) requires that the practice and pleadings in said court, in common law cases, shall be the same as in the circuit court in similar cases; and it can hardly be necessary to repeat, that in the trial of questions of fact, in all common law cases in the circuit court, each party is entitled to a jury. (Const. 1870, sec. 5, art. 2; Ware v. Nottinger, 35 Ill. 375; Ross v. Irving, 14 id. 171.) The maxim is: “Ai qucestionem facti non respondent judices— ad qucestionem legis non respondent juratores.” Broom’s Legal Maxims, (4th ed.) 103, *77; Coke on Littleton, 155 b.

But it is argued that because the language is, “if the cowrt finds ■ that the tax exceeds the benefits, * * * the court shall modify the same, * * * and the costs may be apportioned by the court,” a jury can not have been intended, for a jury has no discretion only in some special cases as to the quantity of damages, and that what the word court means in one place, it means in each of the others. This might he true if every time a court acted it must necessarily employ the same agencies; but this it does not do. The word court is, undoubtedly, often used in the sense of judge, and whenever the word cowrt and the word “jury” are used in contradistinction to each other, it has that meaning, but in its general sense it means the tribunal by which justice is judicially administered. (Coke on Littleton, 58 a.) Thus, our constitution provides: “The judicial powers shall be vested in one Supreme Cowrt, circuit courts, county courts,” etc. (Sec. 1, art. 6.) Circuit cowrts shall have original jurisdiction of all causes in law and equity, etc. County cowts shall be courts of record, and shall have original jurisdiction in all matters of probate, * * * and such other jurisdiction as may be provided for by law. (Secs. 12, 18, art. 6.) One judge shall be elected for each of the circuits. (See. 13, art. 6.) And there shall be elected in and for each county one county judge. (Sec. 18, art. 6.) The inviolability of the right of trial by jury, “as heretofore enjoyed,” is guaranteed. (Sec. 5, art. 2.) But since all judicial power is invested in courts, it inevitably follows that a jury is an integral part of the court, in all cases where, at common law, there was the right of trial by jury.

It would then seem to be clear, that where, by this section, the court is required to act, it must depend upon the nature of the act what agency of the court is called into exercise. If it be to determine what is the fact on any question, the jury must act. If it be to declare what, in any ease, is the rule of law, or what is the legal conclusion from facts found, the judge must act. But the finding of fact is just as much the act of the court, if permitted to stand, as is the legal conclusion thereon pronounced by the judge. Each is an indispensable part of a legal unit,—the judgment of the court. So, here, the jury must find the fact whether the property is benefited •or not, and, if benefited, the amount. The amount of the tax assessed'by the commissioners is not in issue,—their°order fixing it. The judge then pronounces the conclusion of the law upon the verdict of the jury,—in other words, renders judgment thereon; if the verdict is that there are no benefits, then that no tax be assessed against appellant’s lands; if it is that there are benefits, then that a tax be assessed against appellant’s lands to the amount of such benefits, in no case exceeding, however, the amount of the tax assessed by the commissioners, and also that the costs be paid, as shall be equitable. Each step will thus be the act of the court, and meet the requirement of the statute.

It is further objected by counsel for appellees, that inasmuch as the appeal allowed is to any term of the county court, it may. be to the probate term, at which there is no jury, and •therefore it must have been intended that the judge, alone, shall hear the case. But the statute expressly provides, that “the court shall have the power to impanel a jury in any ease cognizable at the probate terms, as well as at the law terms, whenever it shall be necessary for the trial of any matter pending before the court.” (Bev. Stat. 1874, chap. 37, sec. 111.) The language of the statute in relation to applications for judgments for delinquent taxes is not analogous. That is an original, not an appellate, proceeding, and the statute gives full directions for the determination of the matter in a summary manner, and, by necessary implication, excluding the idea of a trial by jury. See sec. 191, et seq. of the Revenue act, Rev. Stat. 1874, p. 889.

We can not suppose that the General Assembly were in any degree influenced by a fear of the evils which counsel depict as likely to result from this construction, because precisely the same evils would result from the trial by jury of the same questions in special assessments for the improvement of streets, etc.; and yet, in such special assessments, the statute in express terms provides for impaneling a jury to pass upon the question of benefits. (Rev. Stat. 1874, sec. 31, et seq. p. 236.) So, also, under the Eminent Domain act, the question of damages and benefits is to be passed upon by a jury. Rev. Stat. 1874, p. 475.

If we felt any doubt upon this question, that doubt would be solved in favor of submitting the question of the amount of benefits, under the section before us, to a jury, because that construction best comports with the genius and spirit of our institutions.

The judgment is reversed and the cause remanded for a trial de novo, in conformity with the views here expressed.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    The Independent Order of Mutual Aid v. Emma J. Paine.

      Filed at Ottawa November 11, 1887.

    1. Arrest of judgment—after demurrer to declaration is overruled. After judgment overruling a demurrer to a declaration, there can be no motion in arrest of judgment for any defect in the declaration that could have been taken advantage of on the demurrer.
    2. Amendment of declaration—after verdict—filing additional counts. There is no error in allowing the amendment of the declaration after verdict, and pending a motion for a new trial, by the filing of additional counts upon the same cause of action upon which the suit was brought.
    3. Estoppel—to deny faet admitted by a party’s deed. Iu an action against a benefit association, on a beneficiary certificate sealed with the company’s seal and signed by its proper officers, which declares the deceased to be a member of the order in a certain lodge, the defendant will be es-topped, by the recital in its deed, from showing that the lodge of the deceased was not properly organized.
    4. Evidence—relevancy. In an action of assumpsit upon a certificate of membership, against a mutual aid association, by the beneficiary of the deceased member, to recover the sum agreed to he paid on his death, the defendant pleaded the general issue and non est factum. On the trial the defendant offered to prove that the lodge of which the deceased was a member, had not been properly organized, although it had received its charter, and, as a body, was acting under it, with the knowledge and sanction of the defendant association: Held, that the proposed evidence was-not pertinent to the issues, under the pleas, and was irrelevant, as not tending to show any defence to the action.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of La Salle county; the Hon. Charles Blanchard, Judge, presiding.
    Mr. A. J. Hopkins, Mr. F. H. Thatcher, and Mr. N. J. Aldrich, for the appellant:
    The declaration charges that the sum of $2000 was to be-paid on certain conditions,—the due notice and proof of the; death of Paine, and the surrender of the certificate,—none of which are alleged to have been performed. Without performance of these conditions no recovery can be had. 1 Chitty’s Pl. 352; Goodrich v. Van Nortwick, 43 Ill. 445; People v. Glann, 70 id. 234.
    The court erred in allowing the amendment to the declaration except upon just and reasonable terms. ■ (Practice act, sec. 24.) Section 26 of that act contemplates that amendments shall be made before verdict.
    The court erred in refusing to allow evidence showing that, the lodge of the deceased had not been properly organized.
    Mr.'L. W. Brewer, and Mr. John W. Blee, for the appellee r
    After demurrer to the declaration, the motion in arrest was. too late. Mix v. Nettleton, 29 Ill. 245; Express Co. v. Pinckney, id. 245; Coal Co. v. Hood, 77 id. 68.
    The declaration alleged proof of the death, and a readiness- and willingness to surrender the certificate, and this was sufficient. Life Ins. Co. v. Kellogg, 82 Ill. 614.
    As to the right to amend the declaration, see McCullom v. Railroad Co. 94 Ill. 534; Insurance Co. v. Trust Co. 1 Bradw. 391; Drake v. Drake, 83 Ill. 526.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Emma J. Paine, the appellee, on the lTth day of April, 1886,. recovered a judgment in the La Salle circuit court, against the Independent Order of Mutual Aid, for the sum of $2499, and costs of suit. The action was assumpsit, brought on the following beneficiary certificate:

State of Illinois.

“This certificate, issued by authority of the Grand Lodge of Illinois, Independent Order of Mutual Aid, witnesseth:

“That Brother Lucius B. Paine is a member of this order, in Bising Star Lodge, No. 88, located at Earlville, in the State of Illinois, and entitled to all the rights and privileges of membership in the Independent Order of Mutual Aid, and to participate in the mutual aid fund of the order to the amount of $2000, with accrued mutual aid assessments, upon due notice and satisfactory proof of his death, and the- surrender of this certificate, legally receipted, which sum will be paid as a benefit, to his wife, Emma J. Paine, as he has directed in his application for this certificate:

“Provided, this certificate is issued expressly in consideration that all the representations made by said Lucius B. Paine in his application and accompanying statements now on file in the office of the Grand Secretary are true, and that all lawful assessments shall be promptly paid, and that the said Lucius B. Paine shall, in every particular, comply with and abide by all the laws, rules and regulations of'the order which now exist or which may hereafter be adopted by the Grand Lodge of the State of Illinois; and provided further, that the said Lucius B. Paine shall be in good standing in the order at the time of his, death.

In witness whereof, the Grand Lodge of Illinois has caused the Grand President to sign, and the Grand Secretary to attest, these presents, and affix hereto the seal of said Grand Lodge this 8th day of January, 1881.

J. V. Langley, Grand President.

Attest: Alexandeb McLean, Grand Secretary.

Mo. 3. Countersigned, sealed and delivered by the president and presiding secretary of Eisin8' Star Lodge, No- 88> L °* M- A-> this 11th day of January, 1881.

J. C. McDonough, President.

John D. Dow, B. Secretary.”

A demurrer to the declaration having been overruled, the defendant interposed the plea of the general issue sworn to, and of non est factum. The cause was tried before the court and a jury with the result stated, upon the issues presented by these pleas. The judgment having been affirmed by the Appellate Court for the Second District, the defendant prosecuted an appeal to this court, and has assigned various errors on the record.

Some ten or eleven pages of appellant’s brief are occupied in an effort to show that the circuit court erred in refusing to sustain appellant’s motion in arrest of judgment, on account of the alleged insufficiency of the declaration, and this, notwithstanding the court, had previously overruled a' general demurrer to it. There is probably no principle of law more elementary in its character, or better established, than that such motion is not available under the circumstances stated. In 2 Tidd, 825, it is said: “After judgment upon demurrer, there can be no motion in arrest of judgment for any exception that might have been taken on arguing the demurrer.” American Express Co. v. Pinckney, 29 Ill. 405, and Quincy Coal Co. v. Hood, Admr. 77 id. 68, recognize the same doctrine. The circuit court was therefore clearly right in overruling the motion.

After the verdict was in, and pending a motion for a new trial, the court permitted the plaintiff to file two additional counts to the declaration, and this is complained of and urged as a ground for reversal. The point is not well taken. It is manifest the defendant was not prejudiced by it. The only possible effect it could have had, was to so perfect the declaration as to enable the plaintiff to recover on the claim for which the action was intended to be brought, and this the court clearly had the right to allow to be done, by the express provision of the 24th section of the Practice act. Had the new counts been based upon some new cause of action, and evidence heard in support of them, quite a different question would be presented; but nothing of that kind is claimed, nor is there any ground for such a claim. The action was upon the contract set forth in the certificate, which the defendant had issued to the deceased husband of the plaintiff for her benefit, and the record shows conclusively that the recovery was upon that, and on nothing else.

Complaint is also made that the circuit court erred in refusing to admit testimony tending to show that the Eising Star Lodge was not fully organized at the time the certificate sued on was issued. This was but an attempt to attack the corporate existence of the Eising Star Lodge in a collateral proceeding. Without stopping to consider whether this, under any circumstances, would be permissible, it was clearly not so under the pleadings and facts in this case. The action was assumpsit, brought on a written certificate, sealed with the company’s seal, signed by its president, and duly attested by its secretary, and on the face of which it is declared that “brother Lucius B. Paine (the plaintiff’s husband,) is a member of this order, in Eising Star Lodge, No. 88, located at Earlville, in the State of Illinois,” etc. As already seen, the only pleas interposed were those of non assumpsit and non est factum. This simple statement of the facts affords two complete answers to the position of appellant: First, the defendant was, by its own deed, estopped from alleging that which it proposed to prove; second, the evidence offered was not pertinent to the issues raised by the pleas. Conceding the organization of the Rising Star Lodge to have been defective, as claimed, it would have afforded no answer to the action. It had received its charter, and, as a body, was acting under it, with the knowledge and sanction of the defendant. This was sufficient to bind the latter.

Other rulings of the court on questions of evidence are complained of, but the objections urged, we think, are without merit, and not of sufficient importance to require special notice. As to the court’s rulings upon the instructions to the jury, we find nothing in them requiring a reversal of the judgment.

After a careful examination of the record, we have no doubt but that substantial justice has been done, and we are fully satisfied with the conclusion reached by the lower courts.

Judgment affirmed.


author: Mr. Chief Justice Sheldon

text:
    The Great Western Telegraph Company, for use, etc. v. F. D. Gray.

      Filed at Springfield November 9, 1887.

      1. Subscription—to capital stock of corporation—contract construed, as to limited liability for amount subscribed. A contract of subscription to the capital stock of a telegraph company provided that each subscriber should take the number of shares set opposite his name, and pay for the same in installments,—-five per cent to be paid down, and the balance as the directors, from time to time, might order; and further provided that the company agreed that when forty per cent of the par value of the shares should be paid in, the number of shares subscribed by him should be issued to him as full paid stock of the company: Held, that the promise of the company to issue full paid stock upon the payment of the forty per cent, did not operate to limit the subscriber’s liability to the payment of such per cent of the par value of the shares, but that the remaining sixty per cent might be collected after the issue of the stock: Held, also, that the words at the top of the subscription paper, “ assessments not to exceed $10 a share,” could not in any way qualify the express promise to pay, in the body of the contract.
    2. Limitations—when the statute begins to run—as to subscription payable in installments, on call. Where a contract of subscription to the capital stock of a corporation provides for payments in installments, as from time to time ordered by the board of directors, no cause of action will accrue until an installment is assessed and ordered to be paid.
    3. A party in 1868 subscribed to the capital stock of a corporation, to be paid for in such installments as might, from time to time, be ordered, and on assessments or calls paid forty per cent of the par value of his stock. The directors failed to make any order for the payment of the balance, and a court of equity, at the suit of creditors, in 1886 made an order of assessment, or call for payment, on the subscription: Held, that the limitation as to the unpaid subscription did not commence to run before such order of the court in 1886.
    4. Parties—in suit against corporation—to appoint a receiver, etc.,— whether stockholders are necessary parties. It is a well established general rule, that a court of equity acquires jurisdiction to appoint a receiver of corporate assets by service of process upon the corporation. The stockholder, unless so required by statute, is not a necessary party. His interest is represented by the presence of the corporation.
    5. Same—former decisions—distinguished. The cases of Chandler v. Brown, 77 Ill. 333, and Lamar Ins. Co. v. Gulick, 102 id. 41, holding it necessary to make a stockholder of a corporation a party before he could he bound by a decree winding up the corporation, were decided under section 25 of the act of 1872, relating to corporations, which required the stockholders to be made parties, and those cases not to be taken as authority to govern in any other case than in one under such a statute.
    6. Keceiyer—power of cowrt to appoint—to collect unpaid subscriptions. A court of equity has jurisdiction to appoint a receiver for a corporation when its board of directors are guilty of mismanagement and malfeasance, and order him, by suit in the corporate name, to collect unpaid subscriptions to the capital stock, by service of process, alone, on the corporation. And in an action so brought by him, the validity of the decree appointing the receiver can not be questioned by the defendant stockholder.
    Writ oe Error to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of Lake county; the Hon. C. W. Upton, Judge, presiding.

      Mr. Thomas J. Sutherland, for the plaintiff in error:
    The defendant, by the written contract, promised to take the number of shares, (100,) and to pay for the “same,” which means the whole number of shares agreed to be taken. Dingley v. Oler, 117 U. S. 50.
    The heading is no part of the contract, nor does what follows the words of promise contain any words limiting his contract liability, or in any way provide that he shall not pay what he has promised,—the par value of the shares subscribed. The words of his promise to take and pay for, are of the plainest, most positive and direct character. They are not open to construction, and must be taken as they read. Cooley’s Const. Lim. p. 55, and cases cited; People v. Wall, 88 Ill. 78; Laird v. Warren, 92 id. 207.
    The issue of shares as full paid stock can not amount to a release of liability for the other sixty per cent, nor change the character of the promise. Railroad Co. v. Wellington, 113 Mass. 87; Upton v. Tribilcock, 91 U. S. 45; Miller v. Gravel Road Co. 51 Ind. 51; Erskine v. Peck, 13 Mo. App. 280; 83 Mo. 465.
    The release of the defendant’s liability to the extent of sixty per cent, would, to the same extent, reduce the capital stock, which would have been illegal and against public policy, ultra vires, and void. State v. Timkin, 12 Am. and Eng. C. C. 24; Zirkel v. Opera House Co. 79 Ill. 334; Bank of Commerce’s Appeal, 73 Pa. St. 59; Life Ins. Co. v. Frear Stone Co. 97 Ill. 537; Melvin v. Insurance Co. 80 id. 446.
    The right of action did not accrue until after demand made under the order of the court. Banet v. Railroad Co. 13 Ill. 513; Spangler v. Railroad Co. 21 id. 276; Cole v. Opera House Co. 79 id. 96.
    The circuit court having acquired jurisdiction, had the same powers as the board of directors had. Upton v. Tribilcock, 91 U. S. 45; Webster v. Upton, 91 id. 65; Sanger v. Upton, 95 id. 56; Insurance Co. v. Moore, 84 Ill. 575; Patterson v. Lynde, 112 id. 205.
    This company having been formed under the law of 1849, its rights and liabilities, and those of its stockholders, are to he treated as if the law of 1872 had never been passed. Stevens v. Pratt, 101 Ill. 219; Wincock v. Turpin, 96 id. 135.
    The cases of Chandler v. Brown, 77 Ill. 333, and Lamar Ins. Co. v. Gulick, 102 id. 41, arose under section 25 of the act of 1872, and have no application here.
    The stockholders were not necessary parties to the decree appointing the receiver. Morawetz on Private Corp. sec. 222; Scoville v. Thayer, 105 U. S. 143; Glenn v. Williams, 60 Md. 93.
    Mr. Eric Winters, for the defendant in error:
    The contract of the defendant, therein set forth, is a limited contract, and provides for the payment, by defendant, of forty per centum of the par value of the shares subscribed for by him, (according to the orders of the hoard of directors,) and no more. He paid said forty per centum according to the orders of the board of directors of the plaintiff, and is not liable to pay any further or other sum.
    The plaintiff’s right of action against defendant on said contract is barred by the Statute of Limitations of the State of Illinois.
    It does not appear, in and by the said declaration, that the defendant was a party to the suit or proceedings in the circuit court of Cook county, wherein the assessment was ordered. Chandler v. Brown, 77 Ill. 333; Insurance Co. v. Gulick, 102 id. 41.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This was an action of assumpsit, brought by the Great Western Telegraph Company, for the use of Elias E. Bowen, receiver, to recover from the defendant the sum of $875, being thirty-five per cent of the par value of one hundred shares of the capital stock of the plaintiff company, which the defendant had agreed to take and pay for. There was judgment for the defendant on a demurrer to the declaration, which judgment, on appeal, was affirmed by the Appellate Court for the Second District, and from that judgment of affirmance the plaintiff brings error.

There had been an order of assessment of this amount of thirty-five per cent made upon the stockholders of the company by the circuit court of Cook county, in a suit pending therein pn the chancery side thereof, wherein the company was a party defendant, and wherein a receiver had been appointed for the company. The assessment was made by the court for the purpose of paying the debts due from the company, and after finding the amount of those debts, and the proper assessment to he made pro rata upon the stockholders for that purpose. Demand upon defendant had been duly made for the payment of this money before action brought. The unpaid balance on defendant’s subscription was sixty per cent of the. par value of the shares agreed to be taken by him. The declaration sets forth fully the above and other requisite facts, stating particularly the proceedings in said .chancery suit, and giving a copy of the decree of assessment. The subscription paper signed by the defendant, as set forth in the declaration, is as follows;

“COPY OF CONTRACT AND ACCOUNT SUED ON.

Capital $3,000,000; Shares $25; Assessments not to exceed $10 on a share.

Subscription List for the Capital Stock

or THE

GREAT WESTERN TELEGRAPH COMPANY.

“We, the subscribers hereunto, for value received, severally, but not jointly, agree to take the number of shares in the capital stock of The Great Western Telegraph Company placed opposite our respective names, amlopay for the same in installments, to-wit; five per cent on amount paid in, and the balance as the directors, from time to time, may order. In consideration thereof, the Great Western Telegraph Company agree, that when forty per •cent of the par value of the shares shall have been paid under ■such orders, and the installment receipts therefor surrendered to the company, the number of shares severally subscribed by the undersigned shall be issued to them as full paid stock of said company.

“...........is appointed agent to solicit stock, and receive only the ■first installment of five per cent, (fifty cents on a share,) at the time of •subscribing. ..............Secretary.

Names. Eesidence. Date of Subscription. . Number of Shares.

JF. D. Gray. Chicago. June 11, 1868. One hundred.”

The declaration admits a payment of $10 upon each share, and avers a balance unpaid of $15 upon each share. •

It is alleged by the defendant that the declaration does not •state a good cause of action in three respects: First, that the ■contract of the defendant therein set forth is a limited contract, and provides for the payment, by the defendant, of forty per •centum of the par value of the shares subscribed for by him, .and no more,—that he paid said forty per centum, and is not liable to pay any further sum; second, that the plaintiff’s right •of action against defendant on said contract is barred by the Statute of Limitations; third, it does not appear, by the declaration, that the defendant was a party to the proceeding in the circuit court of Cook county, wherein the assessment was ordered.

The construction which defendant would place upon his contract, that the payment of forty per cent of the par value of the shares is a full compliance, and that, having paid such forty per cent, he is not further liable, is not admissible. Defendant’s promise to take and pay the par value of the shares is clear and unqualified, and binds him for the payment. The •company’s promise, when forty per cent is paid to issue certificates for the shares as full paid stock, may well consist with defendant’s promise to pay the par value of the shares, and the issuance of such certificates after the payment of forty per cent, may well consist with the liability remaining on the defendant to pay the other sixty per cent. .Such promise of the company, then, does not operate to qualify that made by the defendant, and to limit his liability to the payment of forty per cent of the par value of the shares. To give it that effect it should have been expressly so declared. Nor, as we conceive, do the words at the top of the paper on which the contract is written, “assessments not to exceed $10 on a share,” assist to limit the liability of the defendant to $10 on a share. Assuming those words as' incorporated into the contract, whatever their meaning may be, we can not assign to them any such effect as to in any way qualify the express promise made-by the defendant. In connection, and on the same line with those words, are also the words andfigures, “capital $3,000,000, shares $25,” showing no intention to reduce the capital stock nor the par value of the shares. In TJpton v. Tribilcock, 91 U. S. 45, the stockholder had a certificate for the whole number of shares agreed to be taken, and the word “non-assessable,” together with the amount, “$100,” were stamped across the certificate, although only twenty per cent had been paid; and yet the stockholder was held liable for the remaining eighty per cent.

There is nothing in the point as to the Statute of Limitations. Although the contract was made in 1868, it was to pay as the directors, from time to time, might order. «The directors neglected to make order for the payment. A court of equity then might make the order in place of the directors. (Scovill v. Thayer, 105 U. S. 155; Glenn v. Sexton, 68 Cal. 353.) The order of assessment or call for payment made by that court was in 1886. Until then, as we view it, the cause of action did not accrue, and since then there has not been time for any period of limitation to run. Scovill v. Thayer, supra.

The claim of the necessity that the defendant should have heen a party to the proceeding in the circuit court of Cook county, to admit of this action against him, is rested upon the authority of the cases of Chandler v. Brown, 77 Ill. 333, and Lamar Ins. Co. v. Gulick, 102 id. 41. The former case was a suit by Chandler, receiver of the Lamar Insurance Company, against Brown, a stockholder in the company, to recover payment for his unpaid stock. The proceeding wherein Chandler had been appointed receiver and the order of assessment was made, was under section 25 of the act of 1872, relating to corporations, which -provided that, in the contingency therein named, suits in equity might be brought against all persons stockholders at the time, by joining the corporation in such suit, and that each stockholder might be required to pay his pro rata share of the debts of the corporation, and the Lamar Insurance Company was being dissolved and wound up under that section. It was there said by the court: “It can hardly admit of argument, that to conclude a stockholder by a proceeding under this section, (25) it is indispensable that he should have been made a party thereto, as it provides. It is incumbent on the plaintiff to show clearly a legal right to institute and carry on the suit. To this end he should show his appointment (as receiver) by a decree which is conclusive as against the defendant. This he has failed to do. It nowhere appears, either by the recitals in the decree copied in the several counts or by distinct averment, that the defendant was a party to this proceeding.” • And why should he have been a party to that proceeding ? Because, as had before been stated, the act so provides. The decision was one merely upon the construction of that section 25,—what it provided,—and is not to be taken as authority to govern in any other case than in one arising under that section. There was no purpose in that case to depart from the well established general rule, that a court acquires jurisdiction to appoint a receiver of corporate assets by service of process upon the corporation. The stockholder is represented in his interest, as such, hy the presence-of the corporation. 2 Morawetz on Corp. sec. 822; Ward v. Farwell, 97 Ill. 593; Glenn v. Williams, 20 Md. 93; Sawyer v. Upton, 91 U. S. 56.

Lamar Ins. Co. v. Gulick, was a suit by this same Lamar Insurance Company, against a stockholder, to recover for unpaid stock, and the court, after stating that the defendant, not having been made a party to the suit wherein the receiver was appointed, or to the proceeding to procure an assessment, was not bound or affected by the orders therein, say: “A case exactly in point in principle, is Chandler v. Brown, 77 Ill. 333; and as it is conclusive of this view of the law, it will not be necessary to discuss it as a new question in this court.” So-that the Gulick case but followed and affirmed Chandler v. Brown, and goes to no further extent as an authority than that case, namely, to decide what is the requirement of section 25 of the law of 1872, as to making a stockholder a party in a proceeding under that section.

This Great Western Telegraph Company was organized in the year 1867, under, the law of 1849, in relation to telegraph companies. The suit in chancery wherein this receiver, Bowen, was appointed, and this assessment made, was commenced in 1869, and has ever since been pending, so that it was not affected by the act of 1872, and the provisions of that act did not govern the proceedings therein.

The decisions, then, in Chandler v. Brown and Lamar Ins. Co. v. Gulick, do not apply here, and we do not regard the objection to the declaration, that it does not show that the defendant was a party to the proceeding wherein the assessment was ordered, as well taken. It is enough, under the general rule and the authorities above referred to, that the corporation was a party to that proceeding. That suit was brought by one Terwilleger and certain other persons, stockholders of the company, on behalf of themselves and all others similarly situated, against the company and others, as defendants. The declaration in the present case avers, and the order of assessment appearing therein sets forth, that the receiver was appointed in the said chancery suit of and for the company and all its property, on October 7, 1874, upon supplemental bill of complaint filed therein, and on account of the mismanagement and malfeasance of the then officers of the company; that the company was indebted to the extent of more than $375,000, which indebtedness was in the form of judgments and decrees theretofore rendered against the company, and was duly proved by the creditors before, and found to be due by the court; that the company had no property, except the amounts remaining due upon stock subscriptions, with which any part of said indebtedness could be paid; that there were about two thousand stockholders of the company, widely scattered through more than twelve different States and Territories of the United States, and in other places, and it was therefore impracticable that all of the said stockholders should be made parties to that proceeding, and it was found that it was necessary and proper that thirty-five per centum of the par value of each share of the capital stock subscribed for by the stockholders should be called for and required to be paid by them for the purpose of paying the said indebtedness, and it was therefore ordered that a call or assessment of said amount of thirty-five per cent be made, that it be paid to the receiver, and the receiver was ordered to proceed at once to collect the sums so ordered to be paid, and to institute suits, in the name of the company, for the purpose of enforcing payments. This order was made on July 10, 1886.

There was here, then, a receiver appointed by a court of equity to collect the assets of the corporation for the benefit of its creditors. The unpaid part of defendant’s subscription to the capital stock of the corporation was a part of such assets. The validity of the receiver’s appointment can not be questioned in this collateral proceeding. The court had jurisdiction of the subject matter, and acquired jurisdiction to appoint the receiver by service of process upon the corporation. Defendant’s promise was to pay as the directors, from time to time, might order. The directors, who were defendant’s agents, having neglected to make order for payment, a court of equity, in their place, as before said, might make the order. The court here did make such order, and thereupon, or at least after demand made, defendant’s legal liability upon his contract was complete to pay the remaining amount of his stock subscription. There was then a perfect cause of action against him. His liability was to pay the entire remaining unpaid amount of sixty per cent of his subscription,—at least to the extent needed to pay the debts of the corporation. Assessing him with only his ratable part thereof (thirty-five per cent) was, in mitigation of his legal liability, doing him an equity, and affording no just cause of complaint. In order for the board of directors to have made a valid order for payment, it. would not be contended, we presume, that defendant should have- been before the hoard. No more, we conceive, was it necessary that defendant should have been before the court, when it, in place of the directors, made the call or order of assessment.

We are of opinion the declaration shows a good cause of action, and that the demurrer to it was improperly sustained.

The judgments of the Appellate and circuit courts will be reversed, and the cause remanded to the circuit court.

Judgment reversed.

Scott, Craig and Shore, JJ., dissenting.


author: Mr. Justice Craig

text:
    Helen M. Mix et al. v. The People of the State of Illinois.

      Filed, at Ottawa November 11, 1887.

    1. Former adjudication—in the Supreme Court—what may be considered on a second appeal. Where a question either of law or fact has been decided, by this court in a ease properly before it, the same question can not be again raised in that case except upon petition for rehearing; and when a decree has been reversed, and remanded to the trial court with directions as to the decree to be entered, on a subsequent appeal errors can not be assigned for any cause that existed prior to the former decision in this court.
    2. Practice—after reversal and remandment—what proceedings allowable in the trial court. This court reversed a decree on bill to foreclose a lien on lands for taxes, and remanded the cause with directions to the circuit court to ascertain the amount of taxes due on each tract of the land, and enter a decree in conformity to the opinion pronounced: Held, that the circuit court, on the return of the case, had no authority to enter upon a general investigation of all matters and things which the defendants might desire to present, and that the court had but one duty to perform, which was to ascertain the amount due on each tract, and enter a decree in conformity to such finding. The validity of the assessments upon which the taxes were levied, and the legality of some of the taxes which were before the court on the former hearing, could not be again questioned.
    3. Allegations and proofs—on bill to foreclose lien for taxes. A bill to foreclose a lien on land for taxes, alleged that the lands were forfeited to the State for the taxes for the years 1878 and 1879, giving a statement for each year, and then averred that “the full amount now due Upon said lands and lots, as shown upon the collector’s books of the year 1880, for taxes, penalties, interest and costs, including said forfeitures for the years 1878 and 1879, and accrued taxes for 1880, is the sum of §3687.40,” and that the amount which was a lien upon each tract and lot separately, is shown by said books, and said copy attached, opposite to each tract and lot, separately and respectively: Held, that such averment was sufficient to admit proof of the amount of taxes due and unpaid for the years 1875,1876 and 1877, the collector’s books (a copy of which was made an exhibit) being prima facie evidence of the amount of the taxes, and they being properly included in the taxes of 1880.
    4. Evidence—computation by county clerk of taxes due as shown by collector’s books. On bill to foreclose a lien on lands for taxes of several years, the county clerk testified that he had, at the request of the State’s attorney, examined the collector’s books, and made a computation of the taxes due and unpaid, as shown by such books, and had prepared a paper showing the balance unpaid, which he, on request, attached to his deposition as a part thereof: Held, that there was no valid objection to the evidence, it being a tabulated statement from the books. If there was any error or mistake in the statement of the clerk, it might he shown on cross-examination.
    5. Ebbob will hot always bevebse—refusal of change of venue— ground of application obviated. The error, if any, in overruling a motion for a change of venue on account of the prejudice of the judge of the court, is rendered harmless by the case being tried by another judge of the same court. An error working no harm is no ground of reversal.
    Writ of Ebbob to the Circuit Court of Kankakee county; the Hon. Alfred Sample, Judge, presiding.
    Mr. William Potteb, and Mr. Stephen E. Moore, for the plaintiffs in error:
    A part of the taxes for each year was for the payment of bonds of the towns illegally issued to one Young, and there is no rightful authority to collect such taxes. Town of Middleport v. Life Ins. Co. 82 Ill. 562; People v. Jackson County, 92 id. 441; English v. People, 96 id. 566.
    When a portion of the tax is illegal for which judgment is entered, the judgment is void. Blackwell on Tax Titles, 192; McLaughlin v. Thompson, 55 Ill. 249.
    The answer shows that this property was taxed willfully, fraudulently and corruptly, greatly in excess of other like property. The principles of equality and uniformity are indispensable to all legal taxation. Const, art. 9, see. 1; City of Chicago v. Larned, 34 Ill. 203; People v. Bradley, 39 id. 130; Ottawa v. Spencer, 40 id. 211; Holbrook v. Dickinson, 46 id. 285; Darling v. Gunn, 50 id. 428; Bureau County v. Railroad Co. 44 id. 229; Boone County v. Railroad Co. id. 242; Merrill v. Humphrey, 24 Mich. 170; Gage v. Evans, 90 Ill. 569; Cooley on Taxation, 157, and cases cited in note.
    The court improperly entered a decree for taxes not named in the bill, and also erred in refusing to allow the defendant to prove that the lands and lots were not his, and were wrongfully assessed in his name.
    The defendant also offered to show that the village tax, and the tax levied hy the commissioners of highways, were illegal, and that the State’s attorney had no authority to file this hill, which the court refused.
    The court erred in admitting in evidence the written statement of Kenaga, prepared at the instance of Mr. Starr, in the absence of the plaintiffs in error, and without their knowledge. Railroad Co. v. O’Brien, 119 U. S. 99.
    The decree is too large, and can not be sustained, and there was error in refusing the change of venue, Walsh v. Ray, 38 Ill. 30.
    Mr. G. B. Starr, for the defendants in error:
    This court, in its judgment when the case was before it, decided most of the questions now sought to be re-investigated, and held, on the cross-errors, that the People were entitled to a decree for all the taxes due after giving plaintiffs in error credit for all they had paid.
    The defendants did not press their petition for change of venue, at the December term. At the April term, Judge Sample, by request, and by unanimous consent, comes on to pass upon the master’s report, as that is all that remains to be done in the case.
    The whole case had been tried before the Hon. O. T. Beeves, as the former record will show, and as shown by the reported case, and, under the decisions of this court, he would have been justified in refusing a change of venue, the application coming too late. Crane v. Crane, 81 Ill. 170; Richards v. Greene, 78 id. 526.
    This court has decided that the allegations in the bill were sufficient to authorize the foreclosure, not only for the taxes and forfeitures incurred for the year 1879 and previous years, but also for the taxes shown by collector’s books to be due for the year 1880. The law makes the collector’s books prima facie evidence of the taxes due against the lands.
    The point is made that the master got the clerk to help make up the computation, and presented a paper in which he had put all these taxes, interest, forfeitures and costs. We suppose it would be impossible, almost, for one not familiar with the books, to go over the matter and make a correct computation. It is a common practice for witnesses to make a computation for the jury, and for witnesses, the clerk or master to compute for the court. It is done under oath, and the tribunal that is to pass upon the question, adopts it, and finds accordingly.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, to foreclose a lien on certain lands in Kankakee county for taxes, under section 255 of the Revenue law. (2 Starr & Curtis, p. 2110.) A decree having been rendered, the defendants in the bill sued out a writ of error, which was heard at our Septembe#term, 1885. On that hearing, various questions were presented and considered, and the decree of the circuit court was reversed, with directions to ascertain and fix the amount due against each tract of land to be embraced in the decree of foreclosure, and to render such decree in conformity to the opinion. (See Mix v. The People, 116 Ill. 265.) It will be seen, by an examination of the opinion in the case cited, that the rights of the parties on the former hearing were settled, and there was but little left for the circuit court to do when the cause should be re-docketed in that court.

A remanding order having been filed in the circuit court, the cause was placed on the docket, and a reference had to the master in chancery to ascertain and report to the court the amount remaining unpaid on each tract of land, after allowing, as a credit, whatever amount had been paid on each tract. The evidence was produced before the master, and he made a report to the court, showing the amount due on each tract of land, after deducting such sum or sums as had been paid. The report was approved, and a decree entered in conformity to the prayer of the bill. To reverse that decree this writ of error has been sued out.

In the argument, plaintiffs in error attempt to raise and re-argue questions which were presented and disposed of when the case was before us on the former writ of error. This can not be done. We had occasion to consider this question in Manufacturing Co. v. Wire Fence Co. 119 Ill. 31, and it was there held: “Where a question, either of law or fact, has been decided in a case properly brought before it, the same question can not be again raised in that case, except upon petition for rehearing.” In the case cited, it was also held, that where a case has been heard in the trial court, reviewed in this court, and remanded to the trial court with directions as to the decree it shall enter, on a subsequent appeal to this court errors can not be assigned for any cause that existed prior to the former decision in this court. The questions, therefore, attempted to be raised in regard to the validity of the assessments of the property, and the legality of portions of the taxes, were before the court on the former hearing, and the decision then rendered is conclusive of them and all other questions which were properly before the court on the former writ of error.

It will be observed that when the cause was here before, it was remanded, with directions to the circuit court to ascertain the amount due on each tract of land, and render a decree in conformity to the opinion. Under this order the circuit court had no power or authority to enter upon a general investigation of all matters and things which the defendants might desire to present for consideration, but, on the other hand, as the opinion so provided, complainants had the right to dismiss the bill as to any particular tract of land they might consider advisable, and after this was done, the court had but one further duty to perform, and that was to ascertain the amount due on each tract of land, and enter a decree according to that finding. It is therefore plain that the only question that arises on this record is, whether, in ascertaining the amount due and entering the decree, the court has committed error. If it has, these errors may be corrected; but if no error has been committed in this regard, the decree will have to be affirmed. We will therefore proceed to consider the errors complained of which occurred in determining the amount due on each tract of land; and, first, it is said that the court gave a decree for taxes of 1875, 1876 and 1877, not embraced in the bill.

The averment of the bill is, “that the said lands and lots were forfeited to the State of Illinois for the taxes of the year A. D. 1878 and for the year 1879,” and then follows a statement for each year separately, and then proceeds: “And the full amount now due upon said lands and lots, as shown upon the collector’s books of the year 1880, for taxes, penalties, interest and costs, including said forfeitures for the years 1878 and 1879, and accrued taxes for 1880, is the sum of $3687.40.” And the amount which was a lien upon each tract and lot, separately, is shown by said books, and said copy attached, opposite to each tract and lot, separately and respectively.

It is no doubt true, as suggested in the argument, that complainants, on a recovery, are confined to the case made by the bill. But we think the allegations of the bill are sufficient to •admit proof of the amount of taxes due and unpaid for the years 1875,1876 and 1877. The statute under which the bill was filed, provides that the amount due on the collector’s books, against the property, shall be prima facie evidence of the amount of taxes against the real property. As said before, the bill alleges that the sum due is $3687.40, and the amount which was a lien upon each tract and lot, separately, is shown by said books. A copy of the tax books is attached to the bill as an exhibit, and made a part thereof. Under these allegations, the complainants were not confined to taxes of 1878,1879 and 1880, but they might with propriety show the amount due and unpaid for prior years, as shown by the tax books. But aside from this view, if the taxes of 1875, 1876 and 1877 were not paid, under the provisions of section 229 of the Revenue law such taxes would be carried forward each year, and thus would become a part of the tax of 1878 and 1879, which, it is conceded, may be recovered under the bill.

It is also insisted that the court erred in excluding evidence offered by the defendants on the hearing, and in sustaining the master’s report excluding evidence offered by the defendants. Without going over this evidence in detail, it is sufficient to say, that no part of the offered evidence had any bearing on the issue involved in the case, which the circuit court was directed to determine under the remanding order of this court, and upon this ground the offered evidence was properly rejected.

William F. Kenaga, who has been acting county clerk of the county since 1877, was called as a witness for the complainants, and was asked if he had made a computation of the taxes due and unpaid, as shown by the collector’s books of the towns of Momenee and Graneer, for 1880. In answer, the witness stated that he had a paper which showed the balance unpaid. The witness was then requested to present the paper he had prepared, to the master, and make it a part of his deposition, which he did. The testimony thus offered, it is insisted with much confidence, was inadmissible. We see no objection to the evidence. It was a tabulated statement from the books, prepared by the clerk, and if he had made any mistake, or committed any error, a proper cross-examination, which the defendants had the right to make, would have corrected any and all errors the clerk may have made. The fact that the statement was prepared under the direction of the solicitor of complainant, was a matter of no moment. If it was accurate and correct, it was proper for the consideration of the court, in connection with the testimony of the clerk, notwithstanding complainant’s solicitor may have requested the clerk to prepare the statement.

It is next claimed that the decree exceeds the real amount due, $346.44, and hence is erroneous. The defendants make out this excess hy claiming payments on the taxes, amounting to $2042.42. If this amount had been actually paid on the taxes against the lands embraced in the decree, the position of the defendants might be well taken; but such was not the case. The $2042.42 represents the entire amount paid by defendants on the taxes against the lands named in the bill as it was first prepared. Before the decree, however, the bill was dismissed as to a portion of the lands, and in arriving at the amount of credits, the defendants could properly claim whatever sum had been paid on any tract or tracts dismissed out of the bill, and to be deducted from the total amount paid,—to-wit, $2042.42. If this course is pursued in the computation, we think the amount of the decree will be found correct, or at least not excessive.

After the cause had been remanded, and on the 21st day of April, 1886, it was referred to the master. While the cause was pending before the master, on December 7, 1886, one of the defendants filed a petition for a change of venue, on the ground that the presiding judge, O. T. Beeves, was prejudiced against the petitioner. On the 30th day of December, 1886, the master’s report was filed, but no steps seem to have been taken in regard to the motion to change the venue, until the April term of court, 1887, when the motion was overruled, but the cause was referred to one of the other judges of the circuit for trial, who being present, proceeded with the trial of the cause. The decision of the court overruling the motion for a change of venue, is relied upon as error. The only object of the petition was to take the cause from Judge Beeves. That was accomplished as effectually as if an order had been made changing the venue of the cause. The defendants obtained all they desired,—the trial of the cause before an unprejudiced judge. That they obtained, and they have no ground whatever for complaint. Whether the decision on the motion was right or wrong, is a matter of no moment. The defendants were in no manner injured, and it is a familiar rule that an error that. does no harm is not a ground for reversing a decree.

Perceiving no error in the record, the decree will be affirmed.

Decree affirmed.


author: Mr. Justice Magruder

text:
    John Kennedy et al. v. The People of the State of Illinois.

      Filed at Ottawa September 26, 1887.

    1. Impbisonment fob debt—constitutional exemption—limited to contracts. The constitutional provision prohibiting imprisonment for debt, applies to actions on contracts, express or implied. As to the debts thereby intended, there must be the relation of debtor and creditor. The prohibition does not extend to actions for torts, nor to fines or penalties arising from a violation of the penal laws of the State.
    2. Section 14 of division 14, chapter 38, relating to crimes, etc., which authorizes a commitment to the county jail for the payment of a fine and costs, is not in contravention of the constitutional provision prohibiting imprisonment for debt. The costs in a criminal prosecution is not a debt, within the meaning of such provision.
    3. Jubisdiction — assault—circuit courts and justices of the peace— prosecution by indictment. Circuit courts have original jurisdiction in all cases of misdemeanors, which includes assaults, and all offences cognizable in such courts may be prosecuted by indictment.
    4. The fact that the statute gives to justices of the peace jurisdiction in cases of assault, does not give them exclusive jurisdiction thereof. They can not be vested with exclusive jurisdiction under the present constitution.
    5. Gbiminal law—conviction of a less offence than charged. Where a person is put upon trial for a crime which includes an offence of an inferior degree, the jury may acquit of the higher offence and convict of the lesser, although there may be no count in the indictment specifically charging the lesser offence. So when one is indicted for an assault with a deadly weapon, with intent to inflict a bodily injury, etc., he may be convicted of a simple assault.
    6. Costs—in criminal cases—where there are several defendants. Each of several defendants convicted of a criminal offence is liable for the costs made by the People in procuring his own conviction, and when two are convicted on a joint charge, they are severally liable for all the costs made by the prosecution in procuring their several convictions.
    7. So where three persons are tried together, and one is acquitted and two convicted of an assault, and fined, and ordered to stand committed to jail until the fines and costs are paid, those so convicted will be required to pay only the costs of their own conviction, and not the costs of the one acquitted.
    Wbit of Ebbob to the Circuit Court of Lee county; the Hon. J. M. Bailey, Judge, presiding.
    Messrs. W. & W. D. Babge, for the plaintiffs in error:
    That part of the statute, (chap. 38, sec. 512,) which authorizes the committing of the offender to jail until the costs are paid, is unconstitutional.
    The costs are not imposed on the party as a punishment, but are a matter of private right,—a debt due to those entitled to receive them. State v. Farley, 8 Blackf. 229; Thompson v. State, 16 Ind. 516; Ex parte McDonald, 2 Whart. 440; County of Schuylkill v. Reifsnyder, 46 Pa. St. 446; Playford v. Commonwealth, 4 id. 144.
    An assault is the lowest crime known to the law. The People’s costs are $927.25, the defendants’, $224.09,—in all, $1151.84; and if costs are of the nature of a fine, or a part of it, the punishment is excessive, and in conflict with the bill of rights. Const. 1870, art. 11, sec. 11; Cooley’s Const. Lim. *328, 329.
    The judgment fixes no limit to the time of imprisonment, and is therefore void. Queen v. Green, Fort. 274; Hurd on Habeas Corpus, 335; Gurney v. Tufts, 37 Maine, 130; Howard v. People, 3 Mich. 207; Rev. Stat. chap. 38, sec. 278.
    An assault is not an indictable offence so as to bring it within the rule allowing a conviction of a lesser under an indictment for a greater offence. Carpenter v. People, 4 Scam. 197; Severin v. People, 37 Ill. 414; Ferguson v. People, 90 id. 510; Freeland v. People, 16 id. 380.

      The defendants, when convicted, are severally liable for all th”e costs made by the People in procuring their several convictions, but not for the costs of each other, or for separate costs made by the People against their co-defendant, who was acquitted. Moody v. People, 20 Ill. 319; Murphy v. People, 3 Col. 147; Commonwealth v. Ewers, 4 Gray, 21.
    Mr. C. B. Morrison, and Mr. W. P. Briggs, for the People:
    The provision of the constitution prohibiting imprisonment for debt, does not apply to actions for tort, but to actions ex contractu alone. McKindley v. Rising, 28 Ill. 343; People v. Brennan, 14 id. 414; Rich v. People, 66 id. 513; Kanouse v. Lexington, 12 Bradw. 318; Brown v. People, 19 Ill. 613; People v. Foster, 104 id. 156.
    Payment of costs may be compelled by commitment. Hill v. State, 2 Yerg. 247; Ex parte Bollig, 31 Ill. 88; Downing v. Herrick, 47 Maine, 463; Sheeley v. Life Ins. Co. 2 B. C. (N. S.) 211; Keefhover v. Commonwealth, 2 Pa. 240; In re Howard, 26 Vt. 205; Nelson v. State, 46 Ala. 186; Thompson v. State, 16 Ind. 516; Ex parte Tongate, 31 id. 370; Caldwell v. State, 55 Ala. 133 ; Riley v. State, 16 Conn. 47; State v. Wallace, 41 Ind. 445 ; Bishop on Crim. Proe. sec. 1321.
    A law authorizing imprisonment for costs in a criminal case, is not unconstitutional. United States v. Walsh, 1 Abb. (U. S.) 66; Morgan v. State, 47 Ala. 34; Matter of Ebenhack, 17 Kan. 618.
    The circuit court has jurisdiction of all crimes and misdemeanors. Young v. People, 6 Bradw. 434; Wilson v. People, 94 Ill. 426.
    Defendants convicted are severally liable for all the costs made by the People in procuring their conviction. Moody v. People, 20 Ill. 319.
    The judgment does not require the payment of the costs of the defendant who was acquitted.
   Mr. Justice Magruder

delivered the opinion of the Court:

Plaintiffs in error were jointly indicted with their brother, James Kennedy, at the October term of the Lee county circuit court, A. D. 1884, for an assault with a deadly weapon upon one James Minnihan. After new trial granted the case was tried a second time at the September term, 1886, of the same court. Plaintiffs in error were found guilty of an assault, and James Kennedy was found not guilty.

The judgment of the court was that John Kennedy pay a fine of $40; that Daniel Kennedy pay a fine of $25, and that they “pay the costs of this proceeding to be taxed by the clerk of this court, and that they stand committed to the common jail of said Lee county until said fine and costs are paid.”

The statute of this State, under which this judgment was rendered, is as follows: “When a fine is inflicted, the court may order, as a part of the judgment, that the offender be committed to jail, there to remain until the fine and costs are fully paid or he is discharged according to law.” Rev. Stat. 1885, chap. 38, sec. 452; div. 14, sec. 14.

Counsel for plaintiffs in error urge a reversal, on the ground that the provision of the statute here quoted is in conflict with section 12 of article 2 of the constitution of this State, which says that “no person shall be imprisoned for debt, unless upon refusal to deliver up his estate for the benefit of his creditors in such manner as shall be prescribed by law, or in cases where there is strong presumption of fraud.” It is claimed that the costs of the proceeding are a debt due to the officers of the law, and that, therefore, plaintiffs in error could not be imprisoned until such debt was paid.

We have held that the prohibition of the constitution applies to actions upon contracts, express or implied. Its design is to relieve debtors from imprisonment, who are unable to perform their engagements. They are exempt from arrest, if they act in good faith towards their creditors. The prohibition does not extend to actions for torts, nor to fines or penalties arising from a violation of the penal laws of the State. It has reference to debts arising ex contractu. (People v. Cotton, 14 Ill. 414; McKindley v. Rising, 28 id. 337; Rich v. People, 66 id. 513.) In the latter case it was said: “As to the debts intended to be embraced there must be the relation of debtor and creditor.”

The liability of a convicted party to pay the costs in a criminal proceeding does not arise out of an implied contract. The costs are fixed by the statute. They are the creature of the law. They are incident to the prosecution of the proceeding and grow out of it. They follow the judgment and are a part of it.

This precise question was before the Supreme Court of Alabama in Morgan v. The State, 47 Ala. 34. In that case the appellant was convicted of assault and battery and fined, and “judgment was rendered for the fine and the cost of the prosecution” under a statute, which provided that, “if the fine and costs are not paid, etc., the defendant must either be imprisoned in the county jail, or, at the discretion of the? court, sentenced to hard labor for the county,” etc. Appellant paid the fine, but refused to pay the costs and was thereupon sentenced. The court there say: “Counsel insists * * * that the cost in such case is a debt, and the constitution declares «‘that no person shall be imprisoned for debt.’ In this the counsel is mistaken. In .criminal cases, the cost is no more a debt than the fine, and, accurately speaking, not as much so, for the fine is a sum certain in numero and the cost is not.” Caldwell v. The State, 55 Ala. 133; Hill v. The State, 2 Yerg. 247; Downing v. Herrick, 47 Me. 462; Sheehy v. Professional Life Ins. Co. 2 C. B. 211,—89 Eng. Com. Law; Ex parte Howard, 26 Vt. 205; County of Schuylkill v. Reifsnyder, 46 Pa. St. 446; United States v. Walsh, 1 Abb. (U. S.) 66.

In Brown v. People, 19 Ill. 613, it was said: “The only question in this case is whether a justice of the peace, who has imposed a fine for a contempt of his court, can imprison the party till the fine and costs are paid. Of this power we have no doubt. * * * It was within the power of the justice and it was his duty to imprison the party guilty of the contempt, till the fine and-costs were paid.” Ex parte Bollig, 31 Ill. 88.

Bishop in his work on Criminal Procedure (yol. 1, sec. 1321, 3d ed.) says:

“It is a familiar practice in civil causes, that costs taxed against a defendant of whom damages are recovered, become ‘parcel of the damages,’ enforceable in the same way with the rest. Hence, by analogy, as one ordered to pay a fine or provide sureties of the peace is by the sentence ordered to stand committed until he complies, so should be one condemned to pay costs as a part of his punishment. It is so in perhaps the greater number of the States. In others this order is deemed unauthorized.” See also People v. Foster, 104 Ill. 156; Matter of Ebenback, 17 Kan. 618.

We are of the opinion that the statute complained of is not unconstitutional. It can work no hardship as section 455, chapter 38 of the Revised Statutes provides, that, whenever it is made satisfactorily to appear to the court, after all legal means have been exhausted, that any person, who is confined in jail for any fine or costs of prosecution, for any criminal offence, «hath no estate wherewith to pay such fine and costs, or costs only, it shall be the duty of the court to discharge such person, etc.

The indictment in this case contained four counts. The first count charges an assault with a deadly weapon, “the kind, nature or further description of which is to the said grand jurors unknown,” with the intent to inflict upon the person of William Minnihan a bodily injury, no considerable provocation then and there appearing. Rev. Stat. chap. 38; div. 1, sec. 25.

The second count is the same as the first, except that each of the parties indicted, to-wit: the plaintiffs in error and James Kennedy, are charged with making the assault, “each with a deadly weapon to-wit: a sharp piece of metal, a further description of said deadly weapons or either of them is to the said grand jurors unknown.”

The third and fourth counts use the words, “the circumstances of the assault showing abandoned and malignant hearts,” and omit the words, “no considerable provocation appearing.” The third describes the assault as being made “with certain deadly weapons, the number or a description of which is to the said grand jurors unknown.” The fourth describes the assault as being made “with certain sharp-edged deadly weapons the number of which or a further description of which said deadly weapons is to the grand jurors unknown.”

The verdict of the jury found the plaintiffs in error guilty of an assault. It is claimed, that they could not he convicted of an assault under the indictment.

An assault is a misdemeanor. Circuit courts have original jurisdiction in eases of misdemeanor. (Young v. People, 6 Bradw. 434; Wilson v. People, 94 Ill. 426.) All offences cognizable in said courts are prosecuted by indictment. (Bev. Stat. 1885, chap. 38, see. 349, div. 10, sec. 3.) Where a party is put on trial on an accusation which includes an offence of an inferior degree, the jury may acquit of the higher offence and convict of the lesser, although there may be no count in the indictment specifically charging the lesser offence. (Carpenter v. People, 4 Scam. 197; Beckwith v. People, 26 Ill. 500.) “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (Rev. Stat. chap. 38, div. 1, sec. 20.) It is an offence of a lesser degree than that charged in the indictment and is embraced in the terms of the indictment.

Wharton on Crim. PL and Pr., (8th ed.) sees. 246 and 247, says: . “Generally speaking, where an accusation includes an offence of an inferior degree, the jury may discharge the defendant of the high crime and convict him of the less atrocious; and, in such case, it is sufficient if they find a verdict of guilty of the inferior offence and take no notice of the higher. * * * Illustrations are to he found in indictments for * * * assault with intent to kill or ravish or to do other illegal acts, where the defendant may be convicted of as'sault alone.” “Under an indictment for assault with intent, he may be convicted of a simple assault.” Id. sec. 465.

In Wharton on Grim. Law, (vol. 1, secs. 640 a, 641a, 645 b,) it is- said: “An assault with intent to commit a felony is, at -common law, only a misdemeanor. Hence, as the grade of the offence is the same as that of a simple assault, the averments of felonious intent can be stricken out and a conviction had for assault.” State v. Scott, 24 Vt. 127; State v. Coy, 2 Aik. 181; Hunter v. Commonwealth, 79 Pa. St. 503; Canada v. Commonwealth, 22 Gratt. 899; State v. Waters, 39 Me. 54; State v. Johnson, 30 N. J. 185; Francisco v. State, 24 id. 30; State v. Bowling, 10 Humph. 52; Commonwealth v. Fischblatt, 4 Metc. 354; Leahs v. State, 33 Ga. 131.

Counsel have furnished no abstract of the evidence, but we have examined it as it is set forth in the record, and think that the jury would have been warranted in finding the plaintiffs in error guilty of such an assault as is described in the indictment. The fact that the statute gives to justices of the peace jurisdiction in cases of assault does not give them exclusive jurisdiction thereof. (Eev. Stat. chap. 38, div. 9, see. 1.) They could not be vested with such exclusive jurisdiction undef the present constitution. We think that the defendants could be convicted of an assault under the indictment.

Each of the plaintiffs in error was liable for the costs made by the People in procuring his own conviction. The defendants, when convicted, are severally liable for all the costs made by the prosecution in procuring their several cónvictions. (Moody v. People, 20 Ill. 315.) We think the plaintiffs in error were only required by the judgment to pay the costs of their own prosecution and not the costs of James Kennedy who was acquitted.

The judgment of the circuit court is affirmed.

Judgment affirmed.