Bates v. Ball

• Decision Date: 31 January 1874
• Citation: 72 Ill. 108,1874 WL 8770
• Parties: THOMAS BATESv.OWEN BALL et al.
• Court: Illinois Supreme Court

72 Ill. 108

1874 WL 8770 (Ill.)

THOMAS BATES

v.OWEN BALL et al.

Supreme Court of Illinois.

January Term, 1874.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Vermilion county; the Hon. JAMES STEELE, Judge, presiding.

This was an action of trover, brought by the plaintiff in error against the defendants in error, for the conversion of a promissory note belonging to and payable to the plaintiff in error. It is alleged in the declaration that the defendants in error caused the arrest of the plaintiff under a capias ad respondendum, and whilst he was so under arrest, and for the purpose of procuring his release and freedom, caused him to assign the note to John McVey, one of the defendants, without any consideration whatever other than to procure his release from duress, and that the said John McVey assigned the note to Owen Ball, another one of the defendants, who obtained a judgment on the note in his favor against the makers. The jury found the defendants not guilty, and judgment was rendered accordingly.

Mr. EDWARD H. BRACKETT, and Mr. LUKE REILEY, for the plaintiff in error.

Mr. D. D. EVANS, for the defendants in error. Mr. JUSTICE WALKER delivered the opinion of the Court:

It is objected that the court below erred in admitting improper evidence on behalf of defendants in error. Plaintiff in error attempted to establish, as a defense, that he had been arrested on a capias ad respondendum, at the suit of Ball, for the purpose of compelling him to assign the note in controversy, and that he was thus induced to make the assignment. Hall, the constable, to whom the capias had been delivered, and who then held it, testified that plaintiff in error was not arrested under the capias, nor did he know that it was in existence, but that he was arrested under a bail piece, wholly disconnected from the capias or the transaction upon which it was issued, and he was permitted to refer to the recognizance, and it was read in evidence against the objections of plaintiff in error. In this there was not the semblance of error. It was perfectly legitimate, and, as all know, had plaintiff in error objected to the constable testifying to having arrested him under the recognizance, it would have been necessary to read it in evidence, to authorize the oral evidence, and there could not be the slightest objection to its being read as a basis for the evidence of the constable as to the fact he arrested him under it.

It is also objected that the court erred in permitting defendants in error to read in evidence the executions and fee bills issued on a judgment recovered on the note plaintiff in error assigned to Ball, and for which this suit was brought. Plaintiff in error had read the summons, declaration and judgment in that case, and we do not see why it was not proper for defendants in error to follow it up with these executions and fee bills in the case. One was as legitimate as the other.

If plaintiff in error proved that a judgment was recovered on the note, why should defendants in error be precluded from proving that the judgment remained unpaid. Plaintiff in error was endeavoring to prove that the makers of the note were solvent, and defendants were endeavoring to prove they were insolvent. If plaintiff in error sought to establish the inference that defendants in error regarded the makers as solvent, by suing and recovering the judgment, the latter could surely prove that he was mistaken, by the return of nulla bona by the officer. In this we perceive no error.

We think that the defense of duress wholly failed. The constable and Fitzimmons both swear that plaintiff in error had no knowledge of the existence of the capias, and their evidence is only opposed by that of plaintiff in error, and it appears he was largely under the influence of liquor, and, if arrested as claimed, he could have, no doubt, produced the docket of the justice of the peace, if...