Kellar, Ettinger & Fink v. Norton

Mr. Justice Scott delivered the opinion of the court: The declaration in the suit in the superior court is in trover. The plaintiffs in that suit obtained in that court an order that a ca. sa. issue pursuant to the provisions of section 5 of chapter 77, Hurd’s Revised Statutes of 1905, and while held by virtue of that writ Norton sought his release under the provisions of section 2 of chapter 72, Hurd’s Revised Statutes of 1905, which reads: “When any person is arrested or imprisoned upon any process issued for the purpose of holding such person to bail upon any indebted-mess, or in any civil action when malice is not the gist of the action, or when any debtor is surrendered or committed to custody by his bail in any such action, or is arrested or imprisoned upon execution in any such action, such person may be released from such arrest or imprisonment upon complying with the provisions of this act.” The appellants sought to interpose as a defense to the application the order of the superior court for the writ, on the theory that this order was an adjudication that malice was of the gist of the action. The writ was ordered because the judgment had “been obtained for a tort committed” by the appellee. In determining whether the writ should issue the question of malice did not arise at all. The order of the superior court therefore presented no defense to this petition. Appellants also contend that malice was of the gist of the action in the superior court. The term “malice,” as used in section 2, supra, signifies a wrong inflicted on another with evil intent or purpose. “It requires the intentional perpetration of an injury or wrong on another. The wrong and intention to commit the injury are necessary to deprive the party of the right to a discharge from arrest or imprisonment.” (First Nat. Bank of Flora v. Burkett, 101 Ill. 391; Jernberg v. Mix, 199 id. 254.) For aught that appears from the declaration in the superior court, the failure of appellee to return the property may have resulted from circumstances over which he had absolutely no control. Every averment of the declaration may be true and still the appellee may have been entirely free from any evil intent or purpose. The court refused to admit evidence offered by appellants extrinsic to the record of the superior court for the purpose of showing that there was malice on the part of appellee in the original transaction out of which the suit in the superior court grew, and also excluded such evidence offered by appellants to show that proof was introduced and received on the trial in the superior court which tended to establish the fact that malice was of the gist of the action. In this we think there was no error. Upon a compliance with the provisions of section 2, supra, the debtor is entitled to his discharge “when malice is not of the gist of the action,” which means the gist of the action which was in fact brought against him, and not the gist of an action which might have been, but which in fact was not, carved out of the original transaction or transactions. The judgment of the Appellate Court will be affirmed. Judgment affirmed. Mr. Justice Carter took no part in the decision of this case.