45 Ill. 473 | Ill. | 1867
delivered the opinion of the Court:
This was an action on a bail bond, brought by Milton Parker, in the Superior Court of Chicago, against Samuel M. Standish and Charles Follensbee. The declaration is in the usual form and no question is raised as to its sufficiency. The only objection taken to any portion of the proceedings arises on the third special plea of Follensbee. It avers that the affidavit upon which the writ of capias ad respondendum was issued against Standish, and upon which he was held to bail, as alleged in the declaration, does not comply with the Constitution of the State-of Illinois, and with our statute, in so far as it does not by facts therein stated, or by circumstances set forth, raise a strong presumption that Standish had been guilty of fraud, and that he was thereby discharged from liability upon the bond in the declaration mentioned. To this plea, plaintiff filed a demurrer, and assigned various causes, but they only embrace substantial and not formal objections. The court below overruled the demurrer, and, the plaintiff refusing to reply to the plea, the court rendered judgment on the demurrer in favor of defendant for his costs.
The 15th section of the 13th article of the Constitution declares that, “Ho person shall be imprisoned for debt, unless upon refusal to surrender up his estate for the benefit of his creditors, in such manner as shall be prescribed by law, or in case there is strong presumption of fraud.” It has been repeatedly held by this court, that any liability to pay money growing out of contract, express or implied, constitutes a debt, within the meaning of this provision of the Constitution; and that before a party can be held to bail on a capias ad respondendum., it must appear by affidavit that he has been guilty of fraud, or that there is a strong presumption that he is guilty; that the affidavit to hold to bail must show both the constitutional and statutory grounds for issuing the capias. This demurrer, then, raises the question whether the affidavit contains these requirements.
It states that Standish was to furnish materials for, and to erect the building, and that appellant was to pay him for the same, as the work progressed, the sum of $3,500. It alleges that the amount justly due appellant was $2,000; that after making the contract, Standish came, as affiant believes and avers, for the fraudulent purpose to cheat and defraud him, such fraud being conceived and entered into at and before the time of making the contract, and, under various pretenses, one of which was that materials for building were rising in value, fraudulently induced appellant to advance him $4,100 for the purpose of purchasing materials for the building, promising to faithfully apply tho money thus advanced for that purpose; that Standish failed and refused to so apply the money thus obtained, but fraudulently appropriated it to his own use and fraudulently abandoned the work, and that appellant was compelled to employ other workmen at great expense and loss; that the materials used, and the labor performed, by Standish, on the building, were only worth $1,900, whereas Standish had received $4,000 for the purpose of erecting the building.
This is the substance of the affidavit. It is true, it is not very artificially drawn, but when carefully considered, it seems to contain in substance these averments, not positively and technically made perhaps, so as to exclude all doubt of fraud on the part of Standish, but it does certainly create a strong presumption that he was guilty of fraud. If it is true, as alleged, that, before entering into the contract for the erection of the building, he formed the design of obtaining appellant’s money, and not to perform the contract, it was a palpable fraud. And, although building materials may have been advancing in price, if he only urged that as a means of carrying out his fraudulent purpose of procuring the money to appropriate it to his own use, he can not rely upon the truth of the assertion to justify his conduct. If his purpose in obtaining the money was fraudulent, it can not matter if the reasons assigned to induce appellant to advance the money were true. It was no less a fraud.
Again, it is positively alleged, that he failed to appropriate the money to the purpose for which it was advanced, “'but on the contrary thereof, fraudulently abandoned and utterly neglected said work, and appropriated said money so advanced to his own use.” The fact, that he procured all of the money on the contract and more, and refused to comply with his contract, and having appropriated the money to his own use, instead of applying it to the purpose for which it was obtained, unexplained by other circumstances, might, perhaps, of itself, raise a presumption of fraud ; but, when it is alleged, that such was the purpose for which he procured it, the presumption, to say the least, is strong, that he was guilty of a fraud. And we are of the opinion, that this affidavit is a substantial compliance with the requirements of both the Constitution and the statute, and that the plea did not present a defense to the action, and the demurrer should have been sustained. The judgment of the court below, is, for this error, reversed and the cause remanded.
Judgment reversed.
