In re Murphy

109 Ill. 31

• Court: Illinois Supreme Court
• Decided: January 23, 1884
• Status: Published

Opinion

Mr. Justice Craig

delivered the opinion of the Court:

This was an application for discharge under the Insolvent law of the State. The appellant was arrested on a capias ad satisfaciendum, issued in a judgment recovered in the circuit court of Cook county in an action of trespass for an assault and battery.

Section 2, chapter 72, of the Revised Statutes of 1874, provides: “When any person is arrested or imprisoned upon any process issued for the purpose of holding such person to bail upon any indebtedness, or in any civil action, when malice is not the gist of the action, * * * or is arrested or imprisoned upon execution in any such action, such person may be delivered from such arrest or imprisonment upon complying with the provisions of this act.” The circuit court held that malice was the gist of the action where a judgment had been rendered in an action of trespass for an assault and battery, and that the defendant could not be discharged under the insolvent laws. That judgment was affirmed in the Appellate Court, and Thomas Murphy, the insolvent debtor, appealed.

Was malice the gist of the action in which a judgment was rendered against appellant ? If it was, the judgment will have to be affirmed. Our statute defines assault and battery to be the unlawful beating of another, and Greenleaf on Evidence, see. 83, says: “The intention to do harm is the essence of an assault. ” In note 3, Cooley on Torts, 209, will be found a definition of malice, as follows: “Malice, in common acceptation, means ill-will against a person, but in its legal sense it means a wrongful act done intentionally, without just cause or excuse. ” Here there was an intent to do harm, and an unlawful execution of that intent, resulting in the infliction of a wrong and injury upon another. Under such circumstances, was malice the gist of the action ?

First National Bank of Flora v. Burkett, 101 Ill. 392, we think, settles that question. It is there said: “It (malice) in some cases - implies a wrong inflicted on another, with an evil intent or purpose, and this is the sense in which it is employed in the statute. 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. ” This case falls clearly within the rule announced in the case cited, and in our judgment malice was the gist of the action, within the sense the word “malice” is used in the statute.

The judgment will be affirmed.

Judgment affirmed.