Hurd et al. v. Burr et al. Davis v. Chickering. M. R. M. WALLACE, and T. LYLE DICKEY, for Davis. SHUMWAY, WAITE & TOWNE, for Chickering. BREESE, J. The statute under which the questions presented in this record arise, is partial, local and in derogation of the general law of the State on the same subject, and being so, it should be construed liberally for all those who are liable to be oppressed by it. We have considered this statute, to some extent in Mc Vicker v. Wright, post, and then expresssed our convictions that for the locality for which it was enacted it should be construed strictly no greater effect to be conceded to it, than its language demands. It has come before the court in other cases, for construction. In Mc Donnel v. Olwell et al., 17 Ill. R. 375, we expressed the opinion, taking a liberal view of the statute as operating upon. defendants, that an affidavit of a defense on the merits, was sufficient without affirming that affiant had, in the language of the statute, a "good" defense. In that opinion, it is clearly foreshadowed, that an affidavit of a partial defense on the merits would, also, be a compliance with the act, and accordingly, when the next case arose, Mc Donnell v. Murphy, 20 Ill. R. 346, we then said that an affidavit by a defendant, stating that he has a good defense to a part of the damages claimed would be insufficient, but if the affidavit was directed to a part of the cause of action, it would be sufficient. Upon more mature deliberation, we are satisfied that the rule laid down in these cases requires some modification, so that, while carrying out the true purposes of the legislature, oppression and injury to parties litigant, shall not be the consequence. Maintaining that an affidavit of merits must go, not to the damages claimed, but to the action in whole or in part, the consequence must be, that the defendant must be very particular in stating what part of the damages. We do not now see why this burden should be imposed upon a defendant, and that too, by construction of a statute not designed for his benefit. Should either party be required thus to particularize, it would seem rather the duty of the plaintiff, who is not required to make affidavit of the justice of his claims, nor to his cause of action. In this view, it would seem more appropriate that the plaintiff should be required to limit, in his declaration, the extent of his claim, so that a note being the sole cause of action, he shall not be permitted to add to the special count upon it, any one or more of the common counts. Hurd et al. v. Burr et al. Davis v. Chickering. If it be not in the power of this court thus to limit a plaintiff, we must then hold, in every case, where a note is the cause of action, and the declaration, besides the special counts contains one or more common counts, that the affidavit of merits may be general and go only to a part of the damages claimed. If in such case, the plaintiff shall nol. pros. his common counts, and the defendant shall then refuse to swear that he has a meritorious defense, he being entitled to another affidavit, as to an amended declaration, the plaintiff shall be entitled to judgment. We are inclined to the opinion, that the affidavit of merits required by the statute, should not be intended to mean an affidavit more special than is required to set aside a default. An affidavit for such purpose is sufficient if it states, he has a good defense to the action on the merits as he is advised by his counsel, without specifying the nature or extent of the defense. A defendant may safely swear when sued for one hundred dollars, he being indebted only fifty dollars, or any sum less than the amount claimed, that he has a good defense to such an action on the merits. If then the plaintiff shall not, on such an affidavit, specify and limit his claim, the plea must stand, and a trial be had. If he does limit his claim to the real demand, and the defendant then refuses to make an affidavit of merits, there is no hardship in suffering judgment to pass against him, as for want of a plea. We have considered this case in connection with the case of Davis v. Chickering, also submitted, and the view we have now presented will reverse the judgment in both cases. In the case of Davis, the affidavit was to the merits for a part of the amount of damages claimed. It may be remarked, in the case immediately before us, that the parties defendants, were not in a condition to be defaulted, as the service of the declaration and notice was upon one only of the defendants and that notice was defective. The notice was that the declaration was filed in the office of the clerk of the Cook County Court, whereas it should have been in the Cook County Court of Common Pleas. As the plea of the defendants was stricken from the file, there was no appearance by them to cure any defects of this character or want of service. They were not in court to be defaulted, their plea being stricken out, is, as if it had never been. The judgment in this case is reversed, and also in the case of Davis v. Chickering. Judgment reversed. Whiting et al. v. Fuller et al. 22 33 166 579 WILLIAM P. C. WHITING et al., Appellants, v. JAMES E. 68 486 FULLER et al., Appellees. APPEAL FROM COOK COUNTY COURT OF COMMON PLEAS. An affidavit of merits to a plea is part of the plea, and is preserved in the record without a bill of exceptions. This is the case also, where a plea is stricken from the files. Persons sued jointly, who plead the general issue, may sustain it by an affidavit of merits, made by one of the defendants. If separate pleas are filed, each plea must be sustained by an affidavit of merits. On the 28th of May, 1858, suit was commenced and summons issued, returnable to the next June term, which was duly served and returned. On the same day, plaintiff's below filed their declaration in the cause containing special counts on two notes, one dated November 23, 1857, due in sixty days, made by Whiting & Co., and payable to the order of Fuller & Myers, for $461.20, and the other for $64.05, made by Whiting & Co., dated April 1st, 1858, due at date, and payable to Fuller & Myers, or order, and containing also the common counts. On the 7th day of June, 1858, which was the first day of the June term of said court, the defendants filed in said cause their plea of the general issue, with notice of set-off. And on the same day, together with the plea, Whiting filed his affidavit as follows: "William P. C. Whiting, being duly sworn, deposes and says that he is one of the defendants in the above entitled cause, that he knows for what said suit is brought, that he believes he has a good defense to said suit upon the merits thereof, and further this deponent saith not. W. P. C. WHITING." On the 10th day of the same June term, on motion of the plaintiffs, an order was entered by the court that the plea of the defendants filed in the cause be stricken from the files for the want of a sufficient affidavit of merits, and that default be entered for want of plea, which was accordingly done. And thereupon judgment was entered in favor of the plaintiffs and against the defendants for their damages, $516.87, and costs; from which judgment they prosecute this writ of error, and now here assign for error this ruling of the court. O. HAWKINS, and WALKER, VAN ARMAN & DEXTER, for Appellant. SHUMWAY, WAITE & TOWNE, for Appellee. 22 33 90a 1 29 Chicago, Burlington and Quincy Railroad Co. v. Frary et al. BREESE, J. The affidavit in this case was a part of the plea, and the plea is a part of the record and requires no bill of exceptions to bring it before this court. If a plea be stricken from the file, it still remains a part of the record for the purpose of presenting the question of the propriety of the action of the court in striking it from the file. The plea was the general issue, filed by both defendants, who were sued as partners. The affidavit of merits is by one only of the defendants, and the court below, holding it was not sufficient, struck the plea from the file and rendered judgment for the plaintiffs. The question presented is, was the affidavit sufficient? In conformity with the decision in the case of Hurd v. Burr et al. and Davis v. Chickering, ante, p. 29, we must hold the affidavit was sufficient. Persons sued jointly or as partners, may plead jointly or separately as their defenses may warrant. A defense which one may have, may not attach to his co-defendant, and each defendant must make the affidavit of merits for himself. One of them may have no defense. Here the general issue was filed. A defense personal to one of the defendants could not be allowed under that plea, and any other defense under that issue, which was good for one of the defendants, would be equally availing for both defendants, hence there was no necessity that both defendants should have joined in the affidavit. Under the general issue, one defendant might show that the notes on which suit was brought, were given by his partner to pay his own individual debt and so known to the plaintiffs, and therefore not binding on him. This he could not plead specially. Under the general issue, the affidavit was sufficient. The judgment of the court below is reversed and the cause remanded, with instructions to restore the plea to the file. Judgment reversed. THE CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, APPEAL FROM BUREAU. The courts will not interfere by injunction, to prevent the collection of taxes, because there have been irregularities in the assessment. Chicago, Burlington and Quincy Railroad Co. v. Frary et al. THIS was a proceeding in chancery, by bill, asking an injunction against the treasurer to restrain him from levying, selling or distraining the property of the railroad company, for the taxes levied in Bureau county. The record in this case shows that the said railroad company duly filed a list and valuation of all their taxable property in Bureau county as required by law. That at the annual meeting of the board of supervisors of said county, in September, the valuation of the items of "Fixed and stationary personal property," of "The other personal property," and of "The pro rata moveable property," in said list and in the list of each railroad in the county, were increased forty per cent. each. That at a session of said board, held in December of said year, the action of said board at the September term was reconsidered, and such action had that the items aforesaid of said list were each increased forty per cent., and the said items in the lists filed by other railroad companies in said county, were increased in different proportions. That no notice of any of these changes was ever given to said company. That subsequently, at a session of said board held in June, 1858, said company petitioned the board to abate said increased valuation. That said board did at said June session, abate an inconsiderable portion of the same. By the law of 1855, railroad companies are required to file a list of their taxable property in each county with the county clerk, who shall lay the same before the board of supervisors when they meet to equalize the assessment of property, which, by the acts of 1851 and 1853, must be at an annual meeting. If the supervisors do not think it a full and fair statement of the company's taxable property and the value thereof, they may assess it in accordance with the rules prescribed for the assessment of such property. The rules for the assessment of such property are laid down in section two of the Act of 1855, and prescribe a specific description of each lot or parcel of land and its value, the number of acres taken for right of way, stations, etc., the length of the main track and all the side tracks in the county and their value, a list of the rolling stock of said company, and its value, and the value of all other personal property of said company in said county. The injunction which was granted on this application was dissolved, and the bill dismissed with costs; from this decision an appeal was taken. |