People ex rel. Ellis v. Healy

• Decision Date: 03 April 1889
• Citation: 20 N.E. 692,128 Ill. 9
• Parties: PEOPLE ex rel. ELLIS et al. v. HEALY, Clerk.
• Court: Illinois Supreme Court

128 Ill. 9

20 N.E. 692

PEOPLE ex rel. ELLIS et al.

v.HEALY, Clerk.

Supreme Court of Illinois.

April 3, 1889.

Application of the people on the relation of Almon D. Ellis and Abel A. Putnam for a mandamus to compel John J. Healy, clerk of the superior court of Cook county, to issue an alias ca. sa.Flower, Remy & Gregory, for petitioners.

Rufus King, for respondent.

SHOPE, J.

A petition was filed in this court by Almon D. Ellis and another for a mandamus to compel the respondent, John J. Healy, clerk of the superior court of Cook county, to issue an alias capias ad satisfaciendum against the body of Elias Levee, upon a judgment in that court in favor of petitioners against said Levee.

It is shown that said judgment was recovered March 17, 1884, in an action of trespass on the case, for $374.70.

May 16, 1884, the defendant Levee was arrested upon a ca. sa. issued on said judgment, and imprisoned until June 6, 1884, when he was discharged on writ of habeas corpus.

In August following petitioners demanded of the clerk of said court that he issue an alias ca. sa. against the body of Levee, which he refused to do, and hence this petition.

The statute provides that ‘no execution shall issue against the body of the defendant except when the judgment shall have been obtained for a tort committed by such defendant, or unless the defendant shall have been held to bail upon a writ of capias ad satisfaciendum, [respondendum,] as provided by law, or he shall refuse to surrender up his estate for the benefit of his creditors.’ Rev. St. c. 77, § 5. The respondent answered the petition, to which a general demurrer was interposed. It will not be necessary here to set out in detail the petition and answer, but we will proceed to determine the case made thereby. The petition proceeds upon the basis that the judgment was recovered for a tort committed by the defendant. The answer, in effect, denies that the cause of action was for a tort, and sets up the discharge of the defendant on habeas corpus from arrest and imprisonment for the same cause for which the writ is now asked to be issued.

The first question presented is, was the cause of action on which the judgment was obtained a tort committed by the defendant? It was by default, and we must therefore look to the allegations of the declaration, which is made an exhibit, rather than to the form of action adopted by the pleader, to ascertain the nature of the cause of action. 1 Hill. Torts, 35; McDuffie v. Beddoe, 7 Hill, 578;Weall v. King, 12 East, 452; Railroad Co. v. Hurst, 36 Miss. 660. If one, by means of a false warranty, induces another to purchase, the purchaser may have his remedy upon the contract of warranty, or he may bring suit for the tort. Cooley, Torts, 90. So a recovery may be had for money embezzled in an action ex contractu. It is apparent, therefore, that the form of the action will not necessarily determine the nature of the cause of action. The declaration alleges that on the 1st day of September, 1883, plaintiffs were possessed of certain goods of the value of $1,000, and that ‘the defendant falsely and fraudulently, and for the purpose of inducing the plaintiffs to part with the possession of said goods, represented to the plaintiff that he desired to purchase said goods of the plaintiffs on credit, and that he would pay for said goods their reasonable value; and thereupon the said plaintiffs, relying upon the said representationsand promises of said defendant in that behalf, and believing the same to be true, sold and delivered the said goods and chattels to said defendant on credit. And said plaintiffs aver that said promises and representations of said defendant were utterly false at the time they were made, and were so known to the said defendant, and were made by said defendant with the fraudulent purpose of obtaining possession of said goods without paying for the same, and that at that time said defendant was wholly insolvent, and was fully aware of that fact, and knew when he bought said goods that he could not pay for the same, as he agreed; and that said defendant has never paid for said goods, and obtained said goods from said plaintiffs with the fraudulent purpose of not paying for the same, and of cheating and defrauding said plaintiffs out of said goods.’

In an action to recover for fraud and deceit, the plaintiff must allege the facts relied on as constituting the fraud, and, where false representations are relied upon, it is essential that they relate to some material existing fact or facts, and not to the future intention of the defendant, which he may or may not perform. The only representation of an existing fact here alleged is that the defendant desired to purchase the goods on credit, and, as he did so purchase them, it cannot be said that the representation in respect thereof was false. The declaration alleges that plaintiff sold and delivered the goods to the defendant on credit, but it wholly fails to show that when the suit was brought the time had expired when payment was to be made therefor. The representations of a purchaser of goods on credit that he will pay the value of the articles purchased in simply a promise to pay. Every purchaser on time, either expressedly or impliedly, undertakes and promises to pay at the expiration of the credit, and a subsequent inability to discharge his obligation will not render the purchaser liable to an action for fraud or deceit. The ground of liability in this class of cases that renders the defendant amenable to an action in tort rests upon the affirmation of some existing fact which the party making it knows, or has good reason to know, to be false. In Gallager v. Brunel, 6 Cow. 352, the court, in commenting on Pasley v. Freeman, 3 Term R. 51, say: ‘In that case the defendant encouraged the plaintiff to sell goods, and fraudulently affirmed that the purchaser was a person safely to be trusted. The gravamen was the false affirmation of an existing fact, not a promise to do a future act at the time not intended to be performed, and which, notwithstanding the intent, might, or might not, be performed.’ And after quoting BULLER, J., in the Pasley Case, to the same effect, the court conclude: ‘It is evident what must be the species of fraud for which the law gives redress,-falsehood as to an existing fact.’ In respect of the allegation of a promise to pay without any intention to perform, it is said in Kerr on Fraud and Mistake, (page 88:) ‘As distinguished from the false representation of a fact, the false representation as to a matter of intention, * * * though it may have influenced a transaction, is not a fraud in law.’ In Gage v. Lewis, 68 Ill. 604, after quoting the above from Kerr, with approval, this court said: ‘It cannot be said that these representations and promises were false when made, for until the proper time arrived, and plaintiff refused to comply with them, it could not positively be known that they would not be performed. Even if, at the time they were made, it was not intended to comply with them, it was but an unexecuted intention, which has never been held of itself to constitute fraud. If they legally amount to anything, they constitute a contract.’ And in the same case it is said: ‘A promise to perform an act, though accompanied at the time with an intention not to perform, is not such a representation as can be made the ground of an action at law. The party should sue upon the promise.’ In...