McKindley v. Rising

That provision of the constitution which exempts debtors from imprisonment, has no application to actions for tort. Where the affidavit for a capias is set out in a plea, the question is sufficiently referred to the court for its opinion, whether the clerk was authorized by it to make an order for special bail.

James McKindley, George Church, Jr., and Charles W. Church, the plaintiffs in the above case, filed their praecipe in the Superior Court of Chicago, and caused a summons in an action of debt to be issued October 24, 1860, by the clerk of said court to the sheriff of Winnebago county, against Henry T. Mesler, and Nathaniel Rising, which summons was returned served on said Rising, October 27, 1860. The plaintiffs filed their declaration in the suit commenced as aforesaid, in the usual form in debt, on a special bail bond, to the sheriff of Cook county, bearing date August 21, 1859, and executed by the said Henry T. Mesler, as principal, and the said Nathaniel Rising, as security, in an action of trespass on the case, theretofore commenced by the said plaintiffs in this case, against the said Henry T. Mesler. Afterwards, Nathaniel Rising appeared in the case, commenced as aforesaid, and filed, among other pleas, his sixth and seventh pleas to the plaintiff’s declaration, and by his sixth plea says, actio non, etc., because, he says, that the order indorsed on the capias ad respondendum, mentioned in said plaintiff’s declaration, was unauthorized by the laws of this State, and that said order, so indorsed on the back of said writ, and by virtue whereof said Mesler was arrested, and to free himself from the duress whereof said bail bond was made and executed, in said plaintiff’s declaration mentioned, was made by said clerk solely and entirely upon an affidavit then made and filed in said court and cause, and upon no other grounds, facts or matter whatsoever, and that said affidavit is in words and figures following, to wit: STATE OF ILLINOIS, COOK COUNTY. James McKindley, of said county, being duly sworn, deposes and says, that he was a member of the firm of McKindley, Church & Co., during the year 1857, and that said firm during said year was composed of this deponent, George Church, Jr., and Charles W. Church, and that on the seventh day of September in said year, Henry T. Mesler and John Boyle, who were doing business under the firm name of Mesler & Boyle, were indebted to said firm of McKindley, Church & Co. for goods, before that time sold and delivered to said Mesler & Boyle, in the sum of five hundred and eight dollars and eighteen cents, and that said amount was past due and payable at that time, and that said Henry T. Mesler, with the intent of defrauding said firm of McKindley, Church & Co., falsely and fraudulently pretended to this deponent that he had a good and valid note, signed by his brother, Mortimer M. Mesler, who was known and reputed to be a responsible man, which said note was in words and figures following, to wit: “508.18. Rockford, Sept. Y, 1857. “ One day after date I promise to pay to the order of Mesler & Boyle, Five Hundred and Eight Dollars and Eighteen; Cents, for value received. M. M. MESLER. Per H. T. Mesler.” And on the back of said note was an indorsement, in the following words, to wit: “Pay McKindley, Church & Co., or order. Meslek & Boyle.” Which said note the said Henry T. Mesler did falsely and fraudulently represent to this deponent, to be a good and valid note, and to be executed by the said Mortimer M. Mesler, and the said Henry T. Mesler did then and there deliver the said note, so indorsed, to this deponent, in payment of said debt, due and owing as aforesaid by said Mesler & Boyle, to the said firm of McKindley, Church & Co., and this deponent further says, that the said McKindley, Church & Co. brought suit on said note so indorsed as aforesaid, against the said Mortimer M. Mesler, in the Cook County Court of Common Pleas, in the said county of Cook, and State of Illinois, and that said Mortimer M. Mesler filed a plea and affidavit in said case, denying the signature of said note, and denying that he authorized said Henry T. Mesler, or any other person, to sign said note for him, and said suit so commenced against Mortimer M. Mesler was decided against said McKindley, Church & Co. on account thereof, and the said McKindley, Church & Co. were compelled to pay costs and expenses incurred in consequence thereof, to the amount of about ten dollars. And this deponent further says, that the signature to said note was fraudulent, and that the said note was fraudulent and void, and that the signature of the said M. M. Mesler was signed to said note without his authority, and known to be so by said Henry T. Mesler, at the time of the delivery thereof to this deponent, as aforesaid. And this deponent further says, that by means of the premises, and the false and fraudulent representations aforesaid, the said Henry T. Mesler became liable to the said McKindley, Church & Co., in the sum of $508.18, and said costs of said suit, and interest thereon, since said date, except the sum of one hundred dollars, which has since been paid by the said Henry ' T. Meslei’, to said McKindley, Church & Co., and still is liable for said amount. And this deponent further says, the benefit of whatever judgment may be obtained by said McKindley, Church & Co. against said Henry T. Mesler, will be in danger of being lost, unless the said Henry T. Mesler be held to bail, and asks that a capias ad respondendum, issue, in favor of the said James McKindley, George Church, Jr., and Charles W. Church, against the said Henry T. Mesler, for said amount, in an action of trespass on the case. Subscribed and sworn to, etc. james McKindley. And said Rising by bis sixth plea further says, that said order, so made as aforesaid, was unauthorized by the allegations of said affidavit, and was contrary to the laws of this State, and that said bail bond, by reason thereof, was null and void; and concludes with a prayer and verification. And in his seventh plea, defendant Rising says, actio nonl etc., because he says that the special bail bond taken by the sheriff, in said action of case, was in the penal sum of $900, whereas by the order, indorsed on the back of said writ, he should have taken a bail bond in the penal sum of $836.36, and that said special bail bond was therefore taken contrary to the statute in such case made and provided, and was illegal; and concludes with a prayer and verification. The plaintiffs filed their demurrer to each of the said pleas. On the argument and hearing of said demurrer to said sixth and seventh pleas, the court gave judgment overruling the demurrer to the sixth plea, and sustained it as to the seventh plea. The following errors are assigned: That the court erred in overruling the plaintiffs’ demurrer to defendant’s sixth plea. The court erred in sustaining and holding the sixth plea of the said defendant sufficient. The court erred in rendering judgment for said defendant, and against said plaintiffs, for costs.