| Ill. | Sep 15, 1877
delivered the opinion of the Court:
A question is first made in respect to Bassett alone — that he is not liable because he did not participate in causing the arrest and imprisonment, being absent at the time in California, and that if he is to be charged it must be upon the mere facts that he was a partner of Connell, assisted on the trial in the ne exeat proceeding, and signed the appeal bond on appeal from the decision therein.
This question we shall not consider, as we are of opinion the judgment can not be upheld against either defendant. We consider that case, for the malicious motive and want of probable cause for the proceeding, is the only sustainable action against the defendants, and they stand acquitted by the verdict under all the counts containing the charge of malicious prosecution. The conviction and judgment are upon the count, alone, in trespass for the arrest and false imprisonment, simply; as regards which, we are of opinion that the legal principle that whenever an injury to a person is occasioned by regular process of a court of competent jurisdiction trespass is not sustainable, should apply here in exoneration of the defendants. This principle, or that it applies in case of such an officer as here, is not disputed by appellee’s counsel; but the fact of jurisdiction is denied, and it is contended that the writ was void. In such event the writ might afford no protection, and, as we conceive, the decision of this case turns upon that point — whether or not the writ of ne exeat was void.
The imprisonment was by an officer, in obedience to the command of a writ which the master in chancery directed to be issued. The statute invests masters in chancery with authority, in the absence or inability of the judge to act, to order the issuing of the writ of ne exeat. It provides that the. writ shall not be granted except upon bill or petition filed, and affidavit to the truth of the allegations therein contained. Such petition and affidavit were here filed; and the only suggestion of the want of jurisdiction in any respect, or of ground upon which the writ is void, is that there was no allegation of fraud made in the petition for the writ, and that because of the want thereof the master in chancery had no jurisdiction to order the issuing of the writ, and it was void.
The statute itself is entirely silent in respect to fraud, neither requiring any allegation of it in the petition, nor making it a requisite of title to the writ. It is only noncompliance with the constitutional provision that is to be alleged in this respect; such provision being that “no person shall be 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 strong presumption of fraud.”
The petition has an allegation in respect of fraud, as follows: That about February 18th — prior to March 6th, when the petition was filed—Bratton, the debtor, sold his farm and other property, and at once sold and assigned his notes, amounting to several hundred dollars, for the purpose of defrauding the petitioner, and put the money in his pocket, beyond the reach of the petitioner in his attachment suit then pending. It further alleges that Bratton intends and purposes to take all the money and property he has out of the State of Illinois, and that he has no real estate except a small tract with which he had partly secured the debt to the petitioner, which was not worth over $300 ; that there were $500 due on the notes unsecured; that Bratton would not leave any personal property in the State; that he was going to Kansas, and had sold part of his property, and sent part of it out of the State, and was intending to take the remainder and the said money out of the State.
Here were facts and circumstances stated tending to raise a presumption of fraud. Whether sufficient in that respect the master in chancery was the proper person to pass upon and decide; he would seem to have adjudged them sufficient, inasmuch as he ordered the issuing of the writ. Whether he decided erroneously or not should not affect the petitioner laying before the master the petition for the issuing-of the writ, if in the judgment of the master in chancery the case made by the petition authorized the granting of the writ. Erroneous judgment in such respect, or insufficiency of statement in the petition, where there were statements upon the subject, would not go to the point of jurisdiction.
The master in chancery had general jurisdiction over the subject matter, to order the issuing of the writ upon presentation of the petition and affidavit, if in his judgment a proper case was presented for the writ, and the ordering of the issue of the writ would be in the exercise of jurisdiction which he possessed and was called upon to exercise.
The rule in this class of cases is thus laid down by Bronson, O. J., in Miller v. Brinkerhoff, 4 Denio, 118" date_filed="1847-01-15" court="N.Y. Sup. Ct." case_name="Miller v. Brinkerhoff">4 Denio, 118 : “ When certain facts are to be proved to- a court of special and limited jurisdiction, as a ground for issuing process, if there be a total defect of evidence as to any essential fact, the process will be declared void, in whatever form the question may arise. * * * But where the proof has a legal tendency to make out a proper case, in all its parts, for issuing, the process, then, although the proof may be slight and inconclusive, the process will be valid until it is set aside by a direct proceeding for that purpose.” And see Staples v. Fairchild, 3 Comst. 41; Matter of Faulkner, 4 Hill, 598.
In Outlaw v. Davis, 27 Ill. 467" date_filed="1861-04-15" court="Ill." case_name="Outlaw v. Davis">27 Ill. 467 — a like case, involving the liability of a party for suing out a capias from a justice of the peace, where his statement upon oath did not make a case for the issuing of the writ — this court said: “We think, then, if the magistrate, having jurisdiction of the general subject, did not require a sufficient statement on oath of the party complaining, such party could not possibly be guilty of a trespass with force and arms. If he had' acted maliciously, case would lie against him.” In support of the decision there was cited the case of West v. Smallwood, 3 Mees. & W. 417, in which it was said by Lord Abinger : “ Whex'e a magistrate has a general jui’isdiction over the subject matter, aixd a party comes before him and prefers a complaint, upon which the magistrate makes a mistake in thinking it a case within his authoi’ity, and grants a warrant which is not justifiable in point of law, the party complaining is not liable as a trespasser, the only remedy against him being by an action on the case if he has acted maliciously.”
We think the present case comes fully within the pxfinciple of those decisions, and the rule above, and that they deixy the right of recovery here. See, further, Plummer v. Dennett, 6 Greenl. 421; Luddington v. Peck, 2 Conn. 700" date_filed="1818-11-15" court="Conn." case_name="Luddington v. Peck">2 Conn. 700; Johnson v. Maxon, 23 Mich. 129" date_filed="1871-07-07" court="Mich." case_name="Johnson v. Maxon">23 Mich. 129.
In Booth v. Rees, 26 Ill. 45" date_filed="1861-04-15" court="Ill." case_name="Booth v. Rees">26 Ill. 45, trespass for taking personal property, there was a plea justifying the taking under a writ of attachment. The question was, whether there was a want of jurisdiction, and the writ void, because in the affidavit for the writ the statement of non-residence was on infox’mation and belief, and not positive, as had been held to be necessary in Dyer v. Flint, 21 Ill. 80" date_filed="1859-01-15" court="Ill." case_name="Dyer v. Flint">21 Ill. 80. It was held that, whilst the affidavit was defective, as it was amendable by statute it was not void, and so supported the writ of attachment; and it was there said: “It appeax-s to be a rule of universal application that a void thing is not amendable.”
The petition for a' writ of ne exeat is amendable, as decided in Fisher v. Stone, 3 Scam. 70, where there was an omission in the bill of what the court regarded as a material allegation, and it was held that the omission amounted at most but to a defective statement of the complaint, which, upon demurrer being put in, could be supplied by an amendment of the bill, and the order of the dismissal of' the bill upon motion, by the court below, was reversed.
The petition for the wi-it of ne exeat, then, being amendable, it was not void under the decision iix Booth v. Rees, and could only be attacked in a direct proceeding, and would be sufficient to protect those acting under it.
The writ of ne exeat was not quashed or set aside; no exception was taken to the sufficiency of the allegations; the petition was not demurred to, but answered by the defendant, denying the allegations ; issue was taken on them, and on the hearing the court found that the evidence did not sustain the allegations, and therefore dismissed the bill.
Our conclusion is that the master in chancery had jurisdiction in the matter of ordering the issue of the writ; that it was not void, and that the defendants are not liable in trespass for the arrest and imprisonment.
The judgment will be reversed.
Judgment reversed.