Masterson v. Furman

Mr. Presiding Justice Sears

delivered the opinion of the court.

This is an appeal by the judgment creditor from an order of the County Court discharging appellee from custody under the provisions of section 2 of the Insolvent Debtors Act.

The only controverted question presented is as to whether malice was of the gist of the action in which appellant recovered the judgment upon which appellee was held.

The action was in form of trespass vi et armis, and the one count of which it consists alleges, in effect, trespass by an assault and battery.

It is contended by counsel' that in determining whether malice was of the gist of the action, we must look to the record only. This contention is sound. Beckman v. Menge, 82 Ill. App. 228.

And it might be said further, that in the present instance we have only to look to the pleadings. If there were several counts in the declaration, some alleging matters which made malice of the gist of the action, and others seeking a recovery upon different ground, it might be proper to go beyond the pleadings to ascertain upon what count the recovery was had. Mahler v. Sinsheimer, 20 Ill. App. 401.

But here there is but one count, and that count charges a trespass by assault and battery. The question presented is simply whether malice is of the gist of such action. We regard the question as settled by the decisions. In re Murphy, 109 Ill. 31, and In re Mullir, 118 Ill. 551.

It would be useless to follow counsel in their discussion of the proposition that in a simple action of trespass vi et armis, malice is not an element essential to recovery, and hence not of the gist of the action. It may be conceded that the proposition is sound. Nevertheless it is held in the cases cited that in an action of trespass for an assault and battery, malice is of the gist of the action within the meaning of the provisions of our Insolvency Act. This precludes any possible question as to the case now presented. The debtor, appellee, should not have been discharged.

The judgment is reversed and the cause remanded.