Brophy v. Sheppard

Mr. Justice Brown delivered the opinion oi the court. There is no merit in the point made by appellant that there were missing files at the time of the hearing, and that it was therefore erroneous to render a decree. In the first place it is at least doubtful whether any error is properly assigned as to this. 'We have certainly never expressed any approval of the theory of appellant’s counsel that “errors are not supposed to be assigned upon a short record,” nor construed rule 12 to mean that when errors have been assigned on a short record, additional errors could, without special leave, he assigned on a supplemental record. But assuming the alleged error is properly assigned, the point is not well taken. The clause of the final order alluded to in the statement is no proof that at the hearing the papers alluded to were missing. And if they were, no objection to proceeding is shown by the record to have been made, and the inference, if any, from the order, is that there was none. The intendment undoubtedly is that the court had before it, in passing on the case, the original papers filed, or something which it satisfactorily knew to be copies thereof. This does not appear to have been the case in Groch v. Stenger, 65 Ill. 481, cited by appellant. The decree in that case, moreover, was reversed, “for the reason that the evidence was unsatisfactory.” ¡Nor do we regard the contention of the appellee that the appeal was from the dismissal of the bill and not from the quashing of the writ, of any importance. The appeal was prayed and allowed, and we think taken, from the final order or decree. We shall consider the merits of the appeal on that theory. The merits depend on the sufficiency of the allegations of the hill as amended to- warrant the issuance of the writ. We think that they were clearly insufficient. There was no occasion in this cause for the use of the extraordinary writ of ne exeat república. This writ, which was originally a high prerogative writ used by the King to prevent, for reasons of state, some-person from availing himself of the privilege granted freemen by Magna Charta of going beyond seas without interference, and was afterward used to aid equitable claims by a process similar to that of capias ad respondendum in legal claims, was, by our statute, originally enacted in 1821, made to apply to legal as well as equitable demands, and to both in cases where the debt or demand was not due hut existed fairly and in expectancy at the time of making application for the writ. But two matters must he taken into account in all proceedings under the statute. One is the constitutional provision (article 2, section, 12, of the Constitution of Illinois), “No person shall he 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 a strong presumption of fraud;” and the second is the ruling of the Supreme Court construing the statute and holding that the writ should not he allowed when purely legal process can afford relief as ample and efficacious. Victor Scale Company v. Shurtleff, 81 Ill., 313. The policy of our law is opposed to imprisonment for debt and in favor of the liberty of the citizen, and a writ of ne exeat should not issue in the case of a demand not in judgment, unless there clearly appears under oath, with the application, facts—not conclusions merely—showing a strong presumption of fraud. Burnap v. Marsh, 13 Ill., 535; Malcolm v. Andrews, 68 Ill., 100. That the bill originally filed for this writ did not contain any such allegations of fact, is too clear to need discussion. No capias ad respondendum could ever have been granted on an affidavit containing nothing more. A man may certainly sell and dispose of property and tell another that he is going to leave the State, without raising a strong presumption of fraud, or even indicating that he will not pay a disputed claim if it is adjudicated against him. As Judge McAllister said in Malcolm v. Andrews, 68 Ill., 100, even a declaration from a person against whom a claim is made on promissory notes signed by him, that he will not pay it, may, under some circumstances spring rather from a sense of justice than from a design to defraud' creditors. Nor do we think that this case of Malcolm v. Andrews, or Jones v. Kennicott, 83 Ill., 484, is authority for the dictum in the opinion in Garden City Sand Co. v. Gettins, 102 Ill. App., 251, that if an alleged debtor was intending to carry unexempt property out of the State, this would furnish in itself a sufficient presumption of fraud to warrant his detention. What these cases decided was that where property about to be carried away was not affirmatively shown to be unexempt, there could be no presumption of fraud derived from the removal—a very different proposition. We can well imagine cases in which the removal from the State with all his property, exempt and unexempt, by an alleged debtor, would be entirely innocent and furnish no presumption of fraud, and in the case of a proceeding for a writ of ne exeat, as the court truly remarks in the case of Garden City Sand Co. v. Gettins, supra, the entire burden of proof is upon the applicant. Every intendment is in favor of the liberty of the citizen. We think the bill or petition for the writ in the case at bar was as defective after amendment as it was before, and showed no- sufficient cause for the issuance of the writ. But even if the allegations in the bill as amended were sufficient to raise the strong presumption of fraud necessary under the constitution to justify the' arrest or detention of the appellee, they would not justify the writ of ne exeat, for they would be sufficient in that case to secure a capias ad respondendum, on proper application, and the Supreme Court has expressly held that in such a case the writ of ne exeat should not issue. Victor Scale Co. v. Shurtleff, 81 Ill., 313. “The proceeding is special, sui generis,” said Mb. Jttstice Bbeese in that case, “and is never allowed when the necessity for the writ does not exist. * * * We do not think a court of equity should interfere when a court of law or legal process issued by such a court can afford the party relief as ample and speedy.” The only answer made by appellant to this objection is, that because suit by the appellant against the appellee was pending and undisposed of when the writ was granted, a great hardship” might be inflicted on appellant in. compelling him to dismiss his lawsuit and begin over again. The “hardship” of such a course under ordinary circumstances would not seem too great in view of the unusual and harsh expedient demanded by the plaintiff in the arrest and detention of the defendant. If there were extraordinary circumstances causing such a hardship, they do not appear in this record, and the burden of proof in this proceeding, as we' have noted, is altogether on the applicant for the writ. The action of the Superior Court in quashing the writ and in dismissing the bill was correct and is affirmed. Affirmed.