Malcolm v. Andrews

Citations

• 68 Ill. 100

Syllabus

<p>1. Impbisohmest eor debt—constitutional provision applies to writ of ne exeat. The provision of our constitution relating to imprisonment for debt has abolished such imprisonment as practiced under the common law, and where a debt is the basis of the action, in order to justify imprisonment, the foundation must be laid in the fact of a refusal to deliver up property for the benefit of creditors, or fraud either in contracting or evading payment of the debt. The provision is applicable to a proceeding by ne exeat.</p> <p>2. Ne exeao?—sufficiency of petition. In a proceeding for ne exeat, the plaintiff, by analogy to the proceeding by capias ad respondendum, must show, by his bill or petition, by facts stated and circumstances detailed, that the debtor has been guilty of fraud, or that there is a strong presumption of fraud.</p> <p>3. Where the only ground set forth in a petition for a ne exeat was the plaintiff’s statement upon information and belief that, since the making of the note, the defendant had sold the greater part of his property and was endeavoring to sell the remainder, had threatened to leave the State, and had said he would not pay the debt: Held, that the facts stated were not sufficient to raise a presumption of fraud,' as the property sold might have been exempt, and his declaration that he would not pay might have been based upon a defense or supposed defense.</p> <p>4. In such a case, where the defendant’s answer was under oath, and denied the facts charged and all fraudulent intent, and the plaintiff excepted to the same for immaterial matters stated, and the defendant moved the court to quash the writ, which was refused: Held, that, as the exception admitted the material facts stated in the answer, the court erred in not quashing the writ.</p>