Mr. Presiding Justice Adams
delivered the opinion op the Court.
This is an appeal from a judgment rendered in an action of debt on a judgment. The declaration is in the usual form in such cases, and alleges that at the July term, 1871, of the Superior Court of Cook County, the plaintiff (appellee) recovered judgment against the defendant (appellant) for the sum of $833.35 damages and costs, the costs amounting to $6.75; that the record of said judgment was destroyed by fire in October, 1871, and was not in existence at the time of the commencement of the suit. The appellant pleaded a discharge in bankruptcy December, 1880, to which plea the plaintiff replied in substance, as follows :
“ That the action in which the judgment sued on was rendered was brought to recover damages sustained by the plaintiff by fraud of defendant, by which plaintiff was induced to pay to defendant about $1,200 by false and fraudulent representations of defendant that he owned and had in his possession, ready for delivery, about six hundred cords of wood in Lake county, Indiana; that said action was founded solely upon fraud of the defendant; that issue was joined in said action upon the allegations-made by plaintiff in his declaration, and there being a jury trial a verdict was returned in favor of plaintiff and against the defendant for $333.35, as plaintiff’s damages, by reason of said fraud of defendant; that the judgment sued on was rendered upon said verdict, and was founded solely upon said fraud.”
To this replication the defendant filed a rejoinder substantially traversing all its material allegations. The case was tried by the court, by agreement of the parties without a jury. The appellee called as a witness James Frake, an attorney, who testified that he brought the suit in which the judgment sued on was rendered, and drew the declaration, to which the defendant pleaded not guilty; that he kept a docket which he still had, in which he made entries of all steps taken in the case; that the suit was brought July 16th, and the declaration, of which he had not preserved a copy, was filed July 21,1870; that the verdict was rendered May 9, 1871, and that the judgment was rendered July 29, 1871. The witness further testified that there was a formal verdict of guilty, assessing the plaintiff’s damages at the sum of $833.35, signed by the foreman, and also that there was the usual judgment on such verdict, giving the form, and that about a month after the verdict was rendered he examined the record and found the judgment recorded, and that all the records in the case, including the record of the judgment, were burned by the Chicago fire of October, 1871.
Appellant’s counsel contended, on the trial, that it was not competent to' prove by parol the contents of the burned record; that it was incumbent on appellant to restore the record in the manner prescribed by the statute, and the admission of oral testimony to prove the record is assigned as error, but as they have not urged this objection in argument, we might consider it waived. On a former appeal in this case, the court held, that such proof is competent. Forsyth v. Vehmeyer, 55 Ill. App. 223; see also Black on Judgments, Sec. 969, and cases cited; Freeman on Judgments, Sec. 407; 1 G-reenleaf on Evidence, Sec. 509; Mandeville v. Reynolds, 68 N. Y. 528; Ashley v. Johnson, 74 Ill. 392.
Numerous other authorities might be cited to the same effect. The rule that the record or an exemplified or sworn copy thereof, must be produced,.is limited to cases in which it is within the power of the party relying on the record to produce such evidence.- 1 G-reenl. on Ev., Sec. 86; 2 Jones’ Law of Evidence, Sec. 641.
In Church v. Hubbard, 2 Cranch, 187, Marshall, C. J., delivering the opinion, says: u The principle that the best testimony shall be required which the nature of the thing admits of, or in other words, that no testimony shall be received which presupposes better testimony attainable by the party who offers it, applies to foreign laws as it does to all other facts.”
The statutory method of restoring records does not preclude proof by parol. Mobley v. Watts, 98 N. C. 284; Clifton v. Fort, 98 N. C. 173.
In Weatherhead’s Lessee v. Baskerville, 11 How. 360, the court.say: “ The rule in respect to judicial records is, that before inferior evidence can be received of their contents their existence and loss must be clearly accounted for. It must be shown that there was such a record, that it has beon lost or destroyed, or is otherwise incapable of being produced, or that its mutilation from time or accident has made it illegible.”
It is objected that even though the evidence was competent, it was insufficient to prove that record of the judgment. In addition to the testimony of the witness Frake, that he saw and examined the record of the judgment, R. R. Stevens, formerly in the employ of Chase Brothers & Company, abstract makers, being called as a witness, produced .a book in which he had made entries of all proceedings in the suit in which the judgment sued on was rendered. He testified that the entries were taken from the original files and records and were correct. These entries showed the title of the suit, the name of the action (“ trespass on the case”), when suit was commenced, the date and amount ($833.35) of the verdict, the motion for a new trial, the-overruling of the motion July 29,1871, and judgment on the verdict, etc. The witness further testified that he obtained the entry of the judgment in the first place from the clerk’s minute book, but subsequently compared it with the record. He also testified that the originals from which his entries were made were destroyed by the great tire of October, 1871. A paper was admitted in evidence, by agreement of counsel, showing the entries made by the witness, which will be better understood by examination of the record than as printed in the abstract. We think the evidence sufficient to prove the former existence of the record of the judgment, and that it was destroyed by fire in October, 1871.
Appellant claims that by his discharge in bankruptcy, which was put in evidence, he was discharged from the judgment sued on. His contentions under this claim are, first, that the action in which the judgment was rendered was assumpsit; secondly, if it was an action in tort for fraud, the declaration was defective in not alleging knowledge on his part of the falsity of the representations alleged to have been made by him, and, thirdly, that even though the gist of the action was fraud, the fraud was merged in the judgment, and his discharge in bankruptcy operated to discharge him from the judgment.
The witness Frake testified, as before stated, that the original declaration was destroyed by the October fire; that he had no copy of it; that it contained only one count; that he used Chitty and Puterbaugh in drawing it; that he knew the substance of it, and that before the former trial of this case, and in the fall of 1893, he drafted what was a substantial copy of it, which he then had in court. The witness then testified that the declaration, in substance, was as follows:
“ Superior Court of Cook County, to the July term, or of the August term, 1870. County of Cook.and State of Illinois. Henry F. T. Vehmeyer, by Busch nell & Frake, his attorneys, plaintiff, complains of Jacob Forsyth, defendant, etc., in a plea of a trespass on the case.
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Mr. Presiding Justice Adams
delivered the opinion op the Court.
This is an appeal from a judgment rendered in an action of debt on a judgment. The declaration is in the usual form in such cases, and alleges that at the July term, 1871, of the Superior Court of Cook County, the plaintiff (appellee) recovered judgment against the defendant (appellant) for the sum of $833.35 damages and costs, the costs amounting to $6.75; that the record of said judgment was destroyed by fire in October, 1871, and was not in existence at the time of the commencement of the suit. The appellant pleaded a discharge in bankruptcy December, 1880, to which plea the plaintiff replied in substance, as follows :
“ That the action in which the judgment sued on was rendered was brought to recover damages sustained by the plaintiff by fraud of defendant, by which plaintiff was induced to pay to defendant about $1,200 by false and fraudulent representations of defendant that he owned and had in his possession, ready for delivery, about six hundred cords of wood in Lake county, Indiana; that said action was founded solely upon fraud of the defendant; that issue was joined in said action upon the allegations-made by plaintiff in his declaration, and there being a jury trial a verdict was returned in favor of plaintiff and against the defendant for $333.35, as plaintiff’s damages, by reason of said fraud of defendant; that the judgment sued on was rendered upon said verdict, and was founded solely upon said fraud.”
To this replication the defendant filed a rejoinder substantially traversing all its material allegations. The case was tried by the court, by agreement of the parties without a jury. The appellee called as a witness James Frake, an attorney, who testified that he brought the suit in which the judgment sued on was rendered, and drew the declaration, to which the defendant pleaded not guilty; that he kept a docket which he still had, in which he made entries of all steps taken in the case; that the suit was brought July 16th, and the declaration, of which he had not preserved a copy, was filed July 21,1870; that the verdict was rendered May 9, 1871, and that the judgment was rendered July 29, 1871. The witness further testified that there was a formal verdict of guilty, assessing the plaintiff’s damages at the sum of $833.35, signed by the foreman, and also that there was the usual judgment on such verdict, giving the form, and that about a month after the verdict was rendered he examined the record and found the judgment recorded, and that all the records in the case, including the record of the judgment, were burned by the Chicago fire of October, 1871.
Appellant’s counsel contended, on the trial, that it was not competent to' prove by parol the contents of the burned record; that it was incumbent on appellant to restore the record in the manner prescribed by the statute, and the admission of oral testimony to prove the record is assigned as error, but as they have not urged this objection in argument, we might consider it waived. On a former appeal in this case, the court held, that such proof is competent. Forsyth v. Vehmeyer, 55 Ill. App. 223; see also Black on Judgments, Sec. 969, and cases cited; Freeman on Judgments, Sec. 407; 1 G-reenleaf on Evidence, Sec. 509; Mandeville v. Reynolds, 68 N. Y. 528; Ashley v. Johnson, 74 Ill. 392.
Numerous other authorities might be cited to the same effect. The rule that the record or an exemplified or sworn copy thereof, must be produced,.is limited to cases in which it is within the power of the party relying on the record to produce such evidence.- 1 G-reenl. on Ev., Sec. 86; 2 Jones’ Law of Evidence, Sec. 641.
In Church v. Hubbard, 2 Cranch, 187, Marshall, C. J., delivering the opinion, says: u The principle that the best testimony shall be required which the nature of the thing admits of, or in other words, that no testimony shall be received which presupposes better testimony attainable by the party who offers it, applies to foreign laws as it does to all other facts.”
The statutory method of restoring records does not preclude proof by parol. Mobley v. Watts, 98 N. C. 284; Clifton v. Fort, 98 N. C. 173.
In Weatherhead’s Lessee v. Baskerville, 11 How. 360, the court.say: “ The rule in respect to judicial records is, that before inferior evidence can be received of their contents their existence and loss must be clearly accounted for. It must be shown that there was such a record, that it has beon lost or destroyed, or is otherwise incapable of being produced, or that its mutilation from time or accident has made it illegible.”
It is objected that even though the evidence was competent, it was insufficient to prove that record of the judgment. In addition to the testimony of the witness Frake, that he saw and examined the record of the judgment, R. R. Stevens, formerly in the employ of Chase Brothers & Company, abstract makers, being called as a witness, produced .a book in which he had made entries of all proceedings in the suit in which the judgment sued on was rendered. He testified that the entries were taken from the original files and records and were correct. These entries showed the title of the suit, the name of the action (“ trespass on the case”), when suit was commenced, the date and amount ($833.35) of the verdict, the motion for a new trial, the-overruling of the motion July 29,1871, and judgment on the verdict, etc. The witness further testified that he obtained the entry of the judgment in the first place from the clerk’s minute book, but subsequently compared it with the record. He also testified that the originals from which his entries were made were destroyed by the great tire of October, 1871. A paper was admitted in evidence, by agreement of counsel, showing the entries made by the witness, which will be better understood by examination of the record than as printed in the abstract. We think the evidence sufficient to prove the former existence of the record of the judgment, and that it was destroyed by fire in October, 1871.
Appellant claims that by his discharge in bankruptcy, which was put in evidence, he was discharged from the judgment sued on. His contentions under this claim are, first, that the action in which the judgment was rendered was assumpsit; secondly, if it was an action in tort for fraud, the declaration was defective in not alleging knowledge on his part of the falsity of the representations alleged to have been made by him, and, thirdly, that even though the gist of the action was fraud, the fraud was merged in the judgment, and his discharge in bankruptcy operated to discharge him from the judgment.
The witness Frake testified, as before stated, that the original declaration was destroyed by the October fire; that he had no copy of it; that it contained only one count; that he used Chitty and Puterbaugh in drawing it; that he knew the substance of it, and that before the former trial of this case, and in the fall of 1893, he drafted what was a substantial copy of it, which he then had in court. The witness then testified that the declaration, in substance, was as follows:
“ Superior Court of Cook County, to the July term, or of the August term, 1870. County of Cook.and State of Illinois. Henry F. T. Vehmeyer, by Busch nell & Frake, his attorneys, plaintiff, complains of Jacob Forsyth, defendant, etc., in a plea of a trespass on the case. For that whereas, heretofore, to wit, on the 10th day of Augus t, 1868, in order to induce plaintiff to advance to him a large amount of. money, to wit, the sum of $1,500 (I think the declaration would say $1,200), falsely and fraudulently represented unto the plaintiff that he had a large amount of birch cordwood, to wit, two hundred cords, cut and piled up near the Pittsburg & Ft. Wayne, in the county of Lake and State of Indiana, ready to be shipped to Chicago. That said wood was contracted, of rather, perhaps, one Eldridge had contracted to purchase said wood at $6 per cord in the city of Chicago, when shipped, and that if Vehmeyer, the plaintiff, would advance to him at the rate of $5 per cord for the 200 cords of wood, he, the defendant, would immediately ship said cordwood to the city of Chicago. That the plaintiff Vehmeyer, relying upon these representations as being true, advanced to the defendant the said sum of—I think the declaration said the sum of—$1,200 or $1,000; that the defendant shipped only the sum of forty cords of wood to the said Eldridge, from which he, said Vehmeyer, received the sum of $6 per cord. (I don’t know whether it is right or not.) That the representations of the defendant falsely—were false and fraudulent; that he did not have nor ever did have, in the county of Lake and State of Indiana, 200 cords' of birch cordwood piled up and ready for shipment to the city of Chicago to sell said Eldridge, but only had-—neither in the county of Lake nor anywhere else—the sum of forty cords of birch cordwood, which was shipped by the said defendant to the said Eldridge. Wherefore the plaintiff -was damaged to the extent of $1,500 (was the amount that was alleged in the declaration) and hence he brings this action of fraud and deceit against the defendant.”
The witness was not allowed to read from the paper which he had prepared before the -former trial, and which he said was a substantial copy of the original declaration, and was frequently interrupted in testifying as to the declaration. The declaration testified to is too plainly in tort, for false and fraudulent representations, to require argument. The allegation that the representations were false and fraudulent implies that appellant knew of their falsity. The same objection was made in Merwin v. Arbuckle, 81 Ill. 501, and Nolte v. Beichelm, 96 Ill. 425, with reference to instructions, and the court, in the latter case, say: “ It is next contended that appellee’s instructions 2 and 3 are erroneous, for the reason that they do not inform the jury that the false representation must have been knowingly made. The instructions, in express terms, inform the jury that the representations, to be actionable, must have been fraudulently made. The same objection was urged to an instruction "in Merwin v. Arbuckle, 81 Ill. 501, and it is there said : ‘ As thq.scienter enters into and is necessary to a fraudulent representation, the instruction virtually informed the jury that the representations must have been made knowing them to be false. Then, when they were virtually informed that they must have been fraudulent, they were, in substance, told that they must have been not only false, but plaintiff in error knew it.’ But even though an express allegation of the scienter were necessary, its omission would be cured be the verdict.” Gerke v. Fancher, 158 Ill. 375; Dama v. Kaltwasser, 72 Ill. App. 140; citing Illinois Cent. R. R. Co. v. Simmons, 38 Ill. 242, and other eases.
The bankrupt act, under which appellant’s discharge was granted, provided as follows:
“No debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in a fiduciary character, shall be discharged by proceedings in bankruptcy, but the debt may be proved, and the dividend thereon shall be a payment on account of such debt.” Bump on Bankruptcy, 741.
Whether the judgment sued on was for fraud, is a question to be determined from the record. Flanagan v. Pearson, 14 Nat. Bank. Reg. Rep. 37; 42 Tex. 1.
We think it clear that the judgment in question was recovered for the fraud of appellee, and- that his discharge in bankruptcy did not discharge him therefrom. Bump on Bankruptcy (10th Ed.), pp. 741, 743, and cases cited; Eden on Bankruptcy, 110; Horner v. Spelman, 78 Ill. 206; Warner v. Cronkhite, 6 Bissell, 453; In re Devoe, 2 Nat. B. Reg. Rep. 27; Hughes v. Oliver, 8 Penn. St. 426.
Appellant urges that the judgment being provable, it is discharged. This contention is untenable, because the same section of the statute which excepts a debt created by fraud from the discharge, provides that it may be proved. Even though appellee had proved his judgment in bankruptcy, and obtained a dividend less than the amount thereof, this would not operate to discharge appellant from the unpaid balance. Stokes v. Mason, 12 Nat. Bank. Reg. Rep. 498; 10 R. I. 261.
The evidence" is, that no part of the judgment has been paid. Appellant’s counsel object to the exclusion of evidence tending to prove that there was no fraud in the transaction in respect of which the judgment was recovered. Such evidence is incompetent, and it was properly excluded. Forsyth v. Vehmeyer, 55 Ill. App. 223, and Flanagan v. Pearson, supra.
There was only one count in the declaration, and it was held in the last case that whether the judgment was reversed for fraud is not a question for the jury, but must be determined from the record. The suit having been in case for fraud, and the declaration having been framed accordingly, the judgment is conclusive as to the fraud, and the fraud,is not, as contended by appellant’s counsel, merged in the judgment. Shuman v. Strauss, 52 N. Y. 404.
Appellant assigns as error the sustaining a demurrer to his additional plea. The demurrer assigned specially that the plea is double, which it is, and is otherwise defective. The demurrer was properly sustained.
It is objected that the amended declaration contains no ad damnum. The original declaration concludes with an ad damnum, and we are inclined to the opinion that the amended declaration may be regarded as an additional count, and the ad damnum in' the original as applying to the whole declaration. Ho specific objection was made to the amended declaration for want of an ad dammim in the trial court, nor was any motion made in arrest of judgment, and the objection, therefore, can- not be availed of here. Barnes v. Brookman, 107 Ill. 317; Utter v. Jaffray, 15 Ill. App. 236.
Lastly, it is objected that the damages are excessive. The court found the issues for the plaintiff and found the debt to be $833.35, and assessed the plaintiff’s damages at the sum of $2,076.90. The evidence was that the interest due at the date of the judgment was $1,242.74, and the damages should have been assessed at the latter amount only.
The court, in assessing the damages, evidently included the amount of the debt, $833.35, in the damages, and judgment was entered accordingly. Deducting from $2,076.90 the amount assessed as damages, $833.35, the remainder is $1,243.55. Appellee has filed a remittitur of all damages.in excess of $1,242.74, the amount of the interest. A remittitur of $834.16 from the amount of the damages, $2,076.90, will be entered here, so that the judgment will be for $833.35 debt and $1,242.74 damages, and the judgment will be affirmed, with directions to the trial court to enter a like remittitur in that court. Appellant not having specifically called the attention of the trial court to the excess of damages, he will not recover costs in this court.
Affirmed with directions.