Shenk v. Phelps

• Decision Date: 31 March 1880
• Citation: 6 Ill.App. 612,6 Bradw. 612
• Parties: MICHAEL SHENKv.ERSKINE M. PHELPS ET AL.
• Court: United States Appellate Court of Illinois

6 Ill.App. 612

6 Bradw. 612

MICHAEL SHENK

v.ERSKINE M. PHELPS ET AL.

Appellate Court of Illinois, First District.

March Term, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding. Opinion filed August 5, 1880.

Mr. J. K. WILSON and Mr. CHARLES H. WOOD, for appellant; that the note was procured by the illegal use of the criminal process of the State, and is therefore void, cited Fay v. Oatley, 6 Wis. 42; Bowen v. Buck, 28 Vt. 309; Shaw v. Spooner, 9 N. H. 197; Seiber v. Price, 26 Mich. 519; Slomer v. The People, 25 Ill. 70; Schommer v. Farwell, 56 Ill. 542; Henderson v. Palmer, 71 Ill. 579; Dixon v. Olmstead, 9 Vt. 310.

Where the contract is void on the ground of public policy, its confirmation is affected with the original taint: Negley v. Lindsey, 67 Pa. St. 217; Duncan v. McCullough, 4 Serg. & R. 482; Coppel v. Hall, 7 Wall. 558.

Mr. ERIC WINTERS, for appellees; that the note is not void, cited Rev. Stat. Chap. 38, § 43; Ford v. Cratty, 52 Ill. 313; Taylor v. Cottrell, 16 Ill. 93; Schommer v. Farwell, 56 Ill. 542.

The assignment of accounts by appellant to his father constitutes a good consideration for the note: Parsons on Contracts, 445; Whitter v. Skinner, 23 Vt. 532; Edson v. Fuller, 2 Foster, 185.

WILSON, J.

The testimony as disclosed by the record tended to establish the following state of facts: William Shenk, son of appellant, was engaged in the boot and shoe trade, at Pontiac, Illinois. Early in January, 1876, he bought a bill of goods of appellees' traveling salesman, and about thirty days subsequently called at their store in Chicago and wanted to buy another bill. Mr. Dodge, one of appellees, required as a condition of giving him further credit, that he should make out a written statement of his affairs, which he accordingly did, showing how many goods he had on hand, how much money, also the amount of his indebtedness; and thereupon on his promising to remit $200 within two weeks, appellees sold him a further bill of goods, making his indebtedness to them about $700.

Not long after the purchase of the last bill, and being also indebted to various other firms, Shenk sent a portion of his stock to Chicago and had the same sold at auction. The residue he disposed of to one McMullen, taking his notes therefor, payable in one and two years, and soon after removed to Chicago.

Becoming satisfied of the falsity of Shenk's statements, appellees, acting, as we infer from the evidence, in concert with other creditors, placed the matter in the hands of Turtle's Detective Agency. A warrant for the arrest of Shenk on the charge of obtaining goods on false pretenses was procured from a justice of the peace, which Mr. Bull, one of Turtle's men, was deputized to execute, and Shenk was arrested. It would swell this opinion into undue proportions to recapitulate the testimony in relation to the various occurrences that followed the arrest, and which finally culminated in obtaining the execution of a note for §1,500 by Shenk's father, payable to appellees, as a condition to the son's release from the arrest.

While there is some conflict in the testimony in relation to minor things, one must be very blind not to see in reading the entire evidence that the object sought to be accomplished by the use of the criminal process was not the punishment of Shenk for an offense against the public, but to coerce him by threatened imprisonment into the payment, or furnishing security for his private debt.

Upon being arrested, he was not taken before the justice of the peace who issued the warrant, but to Turtle's office, and was there locked up until Mr. Dodge could be sent for. Upon the latter's arrival negotiations were opened for the furnishing of security by Shenk for the payment of appellees' debt, and he was threatened with imprisonment as the consequence of his failing to do so. He was much alarmed and shed tears, and finally thought it possible his father might give a note. His request to see an attorney was refused, and he was taken a close prisoner into the country to see his father, guarded by Bull and another of Turtle's men--was kept locked up during the night at Wilmington, and on the following morning taken out to his father's.

On arriving there they found the latter in bed, very ill, suffering great pain from a large carbuncle on his spine just below the neck, and more or less under the influence of morphine which the attending physician had been administering to him for several days. It does not require the testimony of an expert to prove that if not entirely incapacitated, he was in an unfit condition for the transaction of business of that nature, and it should seem that ordinary considerations of humanity would have been sufficient to induce the detectives to respect his request not to be disturbed. Bull had brought with him a note for $1500 drawn up, ready for appellant's signature, and which he was finally induced to sign.

It is not very material whether this was brought about by Bull's threats of imprisonment of the son, or by the importunities of the latter. It is enough that appellant saw his son in the custody of officers of the law charged with a criminal offense which would send him to prison, and from which appellant was made to believe there was no way of escape except by his executing the note. He signed it, and the parties left. The warrant having accomplished its mission, was never returned, Shenk was suffered to go at large, and no more was heard of the criminal prosecution. In addition to these general features of the case, other significant circumstances were disclosed in the proof, all tending to fortify the view that the criminal prosecution was resorted to solely for the purpose of aiding appellees in the collection of their and the other creditors' demands against Wm. P. Shenk, and not to vindicate an infraction of the criminal laws.

If we are correct in our conclusion that the object sought by the commencement of the criminal prosecution was as already stated, the question arises, does a note or other undertaking to pay, thus obtained, constitute a valid obligation? We understand the law to be well settled, that the use of the criminal process of the state as a means of collecting private indebtedness is illegal and contrary to public policy; and that contracts entered into or securities obtained under the pressure of such a proceeding cannot be enforced. In 1 Chit. Crim. Law, p. 4, it is said: “Any contract or security, made in consideration of dropping a criminal prosecution, suppressing evidence, soliciting a pardon, or compounding any public offense, is invalid.” See, also, 5 East, 298; 11 East, 46; and in Henderson v. Palmer, 71 Ill. 579, the court say: “The rule is fully recognized that where a contract grows immediately out of, or is connected with an illegal or immoral act, a court of justice will not lend its aid in its enforcement.”

In Bowen v. Buck, 28 Vt. 309, certain creditors living in Massachusetts had charged a debtor, then residing in Vermont, with obtaining goods under false pretenses, and caused him to be arrested by an order of the Governor of Vermont, under a requisition from the Governor of Massachusetts, and held until he paid and secured a portion of the claim. It was held that as the process under which he was arrested was used in a manner to compel the defendant to settle, and give the note in suit, the note was void. The court says: “It must be distinctly understood that it is wholly illegal to use the criminal process of the State to extort money, or even to compel the payment of debts. It was not provided for any such purpose. If a creditor is desirous of colleeting a demand, lawfully due him, the laws have provided remedies deemed by the legislature suitable and competent for that purpose.”

Again, in Fay v. Oatley, 6 Wis. 42, a creditor in the State of New York procured an indictment against his debtor residing in Wisconsin on the charge of obtaining the goods for which the debt was incurred, on false pretenses, and procured a requisition on the Governor of Wisconsin, who issued his warrant, on which the debtor was arrested, with the view of inducing him to furnish the security, and he was held until his friends furnished the required security, when he was released. The Supreme Court held that the securities so obtained were void, being obtained through an abuse of legal process and against public policy. The court after setting forth the circumstances of the event and detention, the giving of the security and the sudden abandonment of the prosecution, proceeds: “This is such gross abuse of criminal process as to preclude its sanction by any c...