| Ill. | Nov 20, 1882
delivered the opinion of the Court:
There are various errors assigned. It is objected that the requirement of an affidavit of a defence upon the merits to be filed with a demurrer, is a special law of practice, and violates section 22, article 4, of the State constitution, respecting special legislation. We do not regard this requirement as special legislation. It is general to this class of cases.
It is alleged the petition ■ and bond were insufficient, and that no affidavit of merits could be required until a sufficient petition and bond had been filed. We do not .consider the petition defective in the particulars pointed out. The objection- to the bond is, that it"is conditioned to pay Johnson such costs and damages as shall be awarded for wrongfully suing out the attachment, instead of.to pay the owner or other person interested in the water craft, as the statute requires. As the boat was bonded on the same day it was attached, and not likely any material damage came from the attachment, we see nothing substantial in this objection.
It is urged that if an affidavit of merits was essential, the court should have allowed it to be filed at the time asked. The statute is imperative that such affidavit shall be filed with the demurrer. No sufficient reason was shown for not filing it at the time required. There was an affidavit of the matter of defence filed in support of the motion; but neither that nor anything else appearing in the case disclosed any meritorious defence, more than is here considered and passed upon by us, and we find no error in disallowing the motion. Wilder v. Arwedson, 80 Ill. 435" date_filed="1875-09-15" court="Ill." case_name="Wilder v. Arwedson">80 Ill. 435.
It is insisted it was error to refuse the application of Carter to be made a defendant. The bond which had been given by Johnson and Christy, under section 15, bound the obligors to pay all moneys which should be adjudged to be due to the petitioner, and upon the giving of the bond, the boat, under the statute, was restored to the owner, and thenceforth discharged from the lien secured by the. bond, unless, upon motion, the court should order the same again into custody on account of the insufficiency of the surety; and where the water craft has been discharged from custody, the only judgment which is rendered is against the principal and surety in the bond. The part owner, then, (Carter,) at the time he applied to be made a defendant, had no interest in the suit, the tug-boat having been discharged, for judgment could not go against him or the boat, or in any way affect his rights. The court, at the time, had no jurisdiction of the tug-boat. It is suggested that the part owner would have an interest in the suit after the boat was bonded,—^that he would be liable to contribute to pay the judgment; but the principle is, that there is no right of contribution between wrong-doers. We find no error in denying this application of Carter.
It is urged that- the judgment against Christy, the surety, together with Johnson, the principal in the bond, is void, as Christy was never summoned or appeared in the suit. The statute provides, if, upon the trial, judgment shall pass for petitioner, and the water craft has been discharged, “said judgment or decree shall be rendered against the principal and sureties in the bond. ” The bond being, given with this statute existing, the law entered into the bond and formed a part of it, so that, from the entering into the bond, there was a virtual consent on the part of the surety that judgment might thus go against him upon the bond, and by virtue of such consent he is bound by the judgment. Whitehurst v. Coleen, 53 Ill. 247" date_filed="1870-01-15" court="Ill." case_name="Whitehurst v. Coleen">53 Ill. 247; Hennies v. The People, 70 id. 100; Beall v. New Mexico, 16 Wall. 535" date_filed="1873-02-18" court="SCOTUS" case_name="Beall v. New Mexico">16 Wall. 535.
As to this provision for judgment against the principal and surety being special legislation, the same answer may be made as above in respect to the affidavit of merits,—it is the general law as to all bonds of that kind, and so not open to the objection of being special legislation.
The most important question is as to the jurisdiction of the court below. It is insisted that the cause of action here was a marine tort, which is of admiralty cognizance, over which the District Court of the United States has exclusive jurisdiction, under the act of Congress giving such court exclusive jurisdiction of all causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common law remedy where the common law is competent to give it; that the remedy here pursued is a statutory one, and not, a common law remedy, and that the statute of this State can confer no jurisdiction on the courts of this State to entertain the proceeding which it provides. We need not inquire how this might be if the tort complained of was a maritime tort, as we do not consider it to be one of that character. It was a tort committed by a vessel and its officers upon a warehouse on land, and so not a marine tort, and within the admiralty jurisdiction. To make it such, the locality of the injury must have been on the high seas or other navigable waters. True, the negligence from which the injury resulted occurred on the navigable water of the Chicago river, but the damage done was wholly upon the land, and in such case we do not understand that the fact that the cause of the damage originated on water subject to the admiralty jurisdiction, makes the case one for admiralty cognizance.
This would seem to be a parallel case with that of The “Plymouth,” 3 Wall. 20" date_filed="1866-02-18" court="SCOTUS" case_name="The Plymouth">3 Wall. 20, where a steam propeller anchored beside a wharf in Chicago river, owing to the negligence of those in charge, took fire, the flames of which extending to the wharf and certain packing houses thereon, set the last on fire, consuming them and their contents. It was held, that a libel for the tort filed in the admiralty court was properly dismissed for want of jurisdiction. It was there said that the entire damage occurred, not. on the water, but on land; that the origin of the wrong was on the water, but the substance and consummation of the injury was on land, and so was not a case within the admiralty jurisdiction. The same remarks may be truly repeated with reference to the present case. We do not perceive that the cases are distinguishable in principle, and think they should fall within the same rule of decision.
Finding, then, that the tort here complained of was on land, and not a maritime tort, and the case not one of admiralty jurisdiction, the remedy we regard as a purely domestic affair, which it was within the competency of the legislature of the State to give. We think the motion to dismiss for want of jurisdiction was properly denied.
The -judgment will be affirmed.
Judgment affirmed.