Interlocutory appeal from the Circuit Court of Cook county;
the Hon. CORNELIUS J. HARRINGTON, Judge, presiding. Order
MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
This appeal is taken from an order for a temporary injunction entered in the Circuit Court of Cook County in accordance with the prayer of an amended complaint therein filed, and from the order of the court denying defendants' motion to strike the amended complaint. The injunction restrained the defendants from "suing out any writs of capias ad respondendum . . . based upon any invoices sold to them by A & S Supply Company, Inc., a corporation, and/or Lynn Pump Co., a corp."
The theory of the defendant appealing is that the amended complaint fails to state any ground for equitable relief and furnishes no foundation or justification for the issuance of an injunction.
Aaron K. Paul, Seymour Hirschfield and Harold Hirschfield, co-partners, doing business as Empire Factors (defendants in the instant action for injunction), had previous to the instant suit filed four actions in the Circuit and Superior Courts of Cook County against Alec Shatz (plaintiff in the instant action), predicated upon fraud and deceit. In each of the suits it was alleged that the defendant therein had induced the plaintiffs to purchase and discount certain accounts receivable because of false representations and warranties made to them and upon which they relied. Each of the suits is based upon an invoice made to a different company.
Two of the suits were filed on August 10, 1954, one in the Circuit Court of Cook County and the other in the Superior Court of Cook County. On November 12th and November 22nd two other suits were filed in the Circuit Court of Cook County. At the time each of the complaints was filed the plaintiffs submitted an affidavit for the procuring of an order for the issuance of a capias ad respondendum, and in pursuance of such order and capias the defendant was attached and he posted bail. The aggregate amount of the invoices in the four cases is $6,194. The aggregate amount of the bail posted by defendant is $13,000. The defendant had filed a motion to strike these complaints, which motion has not been heard.
On March 10, 1955 Alec Shatz (hereafter referred to as plaintiff) filed an amended complaint for injunction in the Circuit Court of Cook County against Aaron K. Paul, Seymour Hirschfield and Harold Hirschfield, co-partners, doing business as Empire Factors (hereafter referred to as defendants), alleging that plaintiff, as an officer of the Lynn Pump Company and the A & S Supply Company, had presented invoices of the corporations to the defendants for the purpose of discounting the same; that on March 23, 1953 both corporations had filed voluntary petitions in bankruptcy, scheduling the defendants as creditors; and fully and in detail set out the filing of the four suits with affidavits by the defendants for the issuance of the writ of capias ad respondendum. It was further alleged that the plaintiff had been arrested in the four separate actions, had posted bail, and on one occasion had been compelled to spend a night in jail; that the defendants have in their possession some six invoices due and owing from the bankrupt corporations to the defendants, and that the defendants, through their agents and attorneys, threatened to file a separate suit on each and every invoice and secure writs of capias ad respondendum and compel the plaintiff to post bond for his release; that the defendants had no reason to believe that the plaintiff would leave the jurisdiction of the court, as was asserted in the affidavits filed to secure the writs, and that the plaintiff had no such intention; that the writs were sued out for the purpose of harassing the plaintiff and his wife in order to effect payment; that the defendants' threats to have further writs issue in separate suits based on the remaining invoices were made to the end that the plaintiff or his wife would borrow funds from friends or relatives and pledge their personal credit toward the payment of the debts occasioned by the said unpaid invoices, and that the defendants knew that the plaintiff had no funds to pay the premiums of bail bonds and was subjected to hardship in securing the monies for such payments. The complaint also alleges that the plaintiff had a good and meritorious defense to all the causes of action brought or threatened to be brought by the defendant in that an accord and satisfaction had been reached by the parties.
The defendants thereupon filed a motion to strike the amended complaint. On March 30, 1955 the court, after a full hearing, overruled the motion to strike the amended complaint and upon the plaintiff's filing bond in the sum of $2,000 issued a temporary injunction against the defendants forbidding them from suing out any writs of capias ad respondendum on any of the other invoices in their possession, from which order this appeal is taken by Aaron K. Paul, one of the defendants.
In determining the issues presented in this case, it becomes necessary to discuss the genesis of the writ of capias ad respondendum.
In England at common law the defendant had to appear in court before any judgment could be entered against him. This rule was probably derived from the ancient principle that recourse to the court depends upon the consent of the parties. Holdsworth's History of English Law, 3rd ed., vol. 2, p. 105; vol. 9, p. 252. Originally arrest was only permitted in actions of trespass and not in actions of debt. Gradually it was extended to cover most personal actions. On the arrest of the defendant on a capias ad respondendum the defendant was required to put in special bail to the sheriff to secure his appearance on the return of the writ. Upon the return of the writ the defendant's appearance was effected by entering into a recognizance with two sureties by which it was agreed that in case of judgment against the defendant he would either pay the judgment or surrender himself as a prisoner, and that if he defaulted, the sureties would pay. 3 Bl. Comm., p. 291. In case the defendant was unable to secure the necessary bail he was committed to a debtor's prison. Upon judgment having been entered, a capias ad satisfaciendum could be forthwith issued under which the body of the debtor could be imprisoned until the costs and damages were paid. Consequently it was possible that the debtor could be imprisoned from the time of the inception of the suit until the payment of the judgment. In 1838 by act of Parliament, arrest on mesne process was abolished in all cases except those in which it appeared that the defendant was about to leave the country to avoid meeting the claim against him. Judgments Act, 1 and 2 Victoria, ch. 110, sec. 1, re-enacted by Debtors Act of 1869, sec. 6.
In Illinois the Constitution of 1818 prohibited imprisonment for debt unless the defendant refused to deliver up his estate for the benefit of his creditors in such manner as should be prescribed by law or in a case where there was a presumption of fraud. This identical provision was adopted in the succeeding Constitutions of the State, and appears in our present Constitution adopted in 1870. In the early case of People ex rel. Brennan v. Cotton, 14 Ill. 414, the court held that this prohibition did not extend to body executions issued in actions for torts, and subsequently by statute torts were specifically excluded from the operation of the prohibition of execution against the body. Section 5 of the Judgments and Executions Act, as amended in 1935 (Ill. Rev. Stat., chap. 77, par. 5 [Jones Ill. Stats. Ann. 107.155]), provides that a body execution should not issue except on a judgment obtained for a tort committed by the defendant and when it shall appear by a special finding of the jury or the court, if the case is tried by the court without a jury, that malice is the gist of the action, and except where the defendant shall refuse to deliver up his estate for the benefit of his creditors. Ingalls v. Raklios, 373 Ill. 404.
It is also provided by statute that a capias ad respondendum may issue in suits on all contracts, express or implied, or on the judgment of any court, if the plaintiff files an affidavit setting forth the cause of action and the amount due, together with facts showing that the defendant fraudulently contracted the debt or incurred the obligation, or that he has concealed, assigned, removed or disposed of his property with intent to defraud the plaintiff (Ill. Rev. Stat., chap. 16, par. 1 [Jones Ill. Stats. Ann. 109.123]), and in actions sounding merely in damages where the same cannot be ascertained, the affidavit shall also set forth the nature and cause of the action, with the substantial or chief facts in relation thereto, and that the affiant verily believes that the benefit of whatever judgment may be obtained will be in danger of being lost unless the defendant is held to bail (chap. 16, par. 2 [Jones Ill. Stats. Ann. 109.124]). It has been held that the constitutional prohibition against imprisonment for debt does not apply to imprisonment under a capias ad respondendum issued in accord with the statutory requirements (In re Smith, 16 Ill. 347; Stafford v. Low, 20 Ill. 152), and that the constitutional prohibition against imprisonment for debt does not apply to imprisonment under a capias ad respondendum in tort actions (McKindley v. Rising, 28 Ill. 337).
It has been held that a defendant in a tort action, where malice is the gist of the action, is not entitled to relief under the provisions of the Insolvent Debtors' Act. Jernberg v. Mix, 199 Ill. 254, and see Ingalls v. Raklios, supra; Ill. Rev. Stat., chap. 72, par. 2 [Jones Ill. Stats. Ann. 109.379]. Paragraph 4 of chapter 16 [Jones Ill. Stats. Ann. 109.126] dealing with bail in civil cases also provides that upon the issuance of a capias ad respondendum a bail bond of sufficient security shall be taken with the condition that in case the defendant shall not pay the judgment if a judgment is returned against him, the sureties will pay the same or surrender the body of the defendant, whereupon he may be confined until he furnishes such bail as is required under the statute, or is discharged by operation of law.
Thus we have extended into our system of jurisprudence many of the rules existing at early common law with reference to imprisonment of debtors, about which Mr. Holdsworth in his History of English Law, 3rd ed., vol. 8, at p. 231, says:
"Constraint of the debtor's person thus became in England a more general method of execution than in many other countries in Europe. Largely because it was introduced in this indirect way, a mode of execution which required, and in most countries received, careful limitation ...