This was an action of debt, brought by the defendant in error against the plaintiff in error, sheriff of Bock Island county, for an escape.
The declaration contains two counts; the first avers that the plaintiff, on the tenth of July, 1855, before a justice of the peace of Bock Island county, recovered a judgment against one James Bowie, for one hundred and two dollars and costs ; and that on the 20th July, he sued out a capias ad satisfaciendum upon the judgment, which was delivered to a constable of that county, on which he arrested Bowie and conveyed him. to the common jail, and delivered him to Gorton, who was sheriff of the county; that the defendant received and detained Bowie by virtue of the writ, and afterwards, without the leave or license and against the will of the plaintiff, Bowie escaped and was permitted to go at large by the defendant, the judgment, interest and costs being wholly unpaid.
The second count is substantially the same, averring that the ca. sa. was delivered 'by the justice of the peace to Gorton for execution, and that he arrested Bowie.
The defendant pleaded nil debet, and that the ca. sa. was null and void and not sufficient to justify the defendant in detaining Bowie, and issues were joined. A fi. fa. had been issued and returned nulla bona.
The controversy grows out of this second plea, though other pleas were filed, not necessary to be noticed.
*295It was upon this affidavit the ca. sa. issued: “ State of Illinois, Rock Island county, ss: I do solemly swear that I do verily believe James Bowie to be able to pay $101.66, the amount of a judgment, costs and interest, recovered by me on the tenth day of July, 1855, before E. R. Bean, Esq., J. P., and that he withholds his money or secretes his property from the officers, so that the debt cannot be levied. Wm. Frizzell.”
And this was the capias which issued on this affidavit:
“ State of Illinois, Rock Island Co. The people of the State of Illinois to any constable of said county, greeting:
“ Whereas William Frizzell recovered a judgment against James Bowie before E. R. Bean, a justice of the peace, on the 10th day of July, 1855, which judgment, cost and interest, amounts to $101.66; and whereas has this day made oath before me, E. R. Bean, a justice of the peace for said Rock Island county, as follows, to wit: That he does verily believe James Bowie to be able to pay $101.66, the amount of a judgment, costs and interest, recovered by Wm. Frizzell, on the tenth day of July, 1855, before E. R. Bean, a justice of the peace, and that he withholds his money or secretes his property from the officer, so that the debt cannot be levied.
“ You are therefore commanded to arrest the said James Bowie, and him convey to the common jail of said county, and the sheriff or jailor is commanded to receive and safely keep him in said jail till he pay the debt or be discharged by due course of law. Given under my hand,” etc.
The defendant objected to the introduction of this writ, but the court overruled the objection, and the defendant excepted.
The fourth instruction asked by the defendant, based upon the writ, was this:
“If the jury believe, from the evidence, that the ca. sa., by which Bowie was arrested and committed to jail, was void, then they will find for the defendant, and they are further instructed that the ca. sa. offered in evidence in this case, is void.”
In conformity with the decision by this court, ex parte Jesse N. Smith, 18 Ill. R. 347, this instruction should have been given, or rather the last branch of it, the jury having no right to pass upon the legality of the process. The court, in the first place, when objection was made to its going to the jury, should have excluded it, and when requested, should have told the jury that it was a void process.
Being void, the defendant could not have justified under it in an action against him for false imprisonment. The sheriff had notice by the recital of the affidavit set out in the writ, that the justice of the peace had no jurisdiction or power to issue it, and that he could not execute it without being a trespasser. An *296officer cannot justify under a void writ. Brother and January v. Cannon, 1 Scam. R. 200; McDonald v. Wilkie, 13 Ill. R. 22; Barnes v. Barber, 1 Gilm. R. 401.
The case ex parte Smith determines that an affidavit to hold to bail must show, by facts stated and circumstances detailed, what the constitution requires, that is, either that the defendant has refused to surrender his estate for the benefit of his creditors as required by law, or he must, by the facts stated, raise a strong presumption that the defendant has been guilty of a fraud. Neither of which is shown by the affidavit and ca. sa. in this case.
There is no averment in the affidavit that the defendant had money which could be appropriated to this debt. It may have been held to be appropriated to another debt. Nor is there any averment that the defendant had any property, or that such' as he may have had, was not exempt from execution. And besides, the affidavit is in the alternative, and does not set forth the circumstances on which the presumption of fraud can be raised.
The judgment is reversed and the cause remanded.