Mr. Chief Justice Shops
delivered the opinion of the Court:
It is insisted by appellees, that the petition of the debtor to the county court is insufficient to warrant his discharge, for the reason that it is not alleged therein that the writ under which the arrest was made was not issued in a “civil action where malice is not the gist of the action.” The objection is without merit. The proceedings before the county court under the Insolvent Debtors’ act are summary, and without formal pleading. The requirement of the statute is, simply, that notice of the application must be°given. The policy of our. law is opposed to imprisonment for debt, and no person within this State can be so imprisoned unless upon refusal to surrender his estate for the benefit of his creditors, as prescribed by law, or in cases where there is a strong presumption of fraud. (Const, sec. 12, art. 2.) By the Insolvent Debtors’ act the county court is given exclusive original jurisdiction in all applications for discharge from imprisonment under the provisions of that act. Undoubtedly, any persons interested may appear and object to the discharge of the debtor, or to his right to schedule; but the presumption being in favor of the liberty of the citizen, the statute contemplates the discharge of the debtor upon the surrender of his property, unless it shall appear that the writ has issued in a case where the debtor is not by law entitled to be discharged. And it is also contemplated that the proceedings shall be without delay, and that the court shall at all times be open to hear such applications. We think it clear that the proceeding is summary, and no formal pleadings required. It is enough that the imprisoned debtor offers to surrender his property and asks to be discharged. Upon appeal to the circuit court that court is required to hear the cause at the term to which the appeal is taken, unless for good cause shown, and upon affirmance of the judgment of the county court, in whole or in part, “give such direction to the county court in the premises, as shall be according to equity and justice.”
The principal question, however, arising upon this record ■ is, whether the circuit court erred in the exclusion of evidence offered by the petitioning debtor, and in directing the jury impaneled in said cause to find against the petitioner, and in rendering judgment affirming the order of the county court dismissing the petition.
• The judgment creditors filed an answer, setting up that the judgment upon which the writ issued, was rendered in a suit in which malice on the part of the petitioner was the gist of the action. On the hearing in the circuit court, the petitioner offered evidence tending to disprove this allegation. The respondents introduced in evidence what, for the purposes of this case, may be treated as the files and records of said original cause, and the court held that the petitioner was concluded by such record, and refused to permit the introduction of the offered testimony. It will be unnecessary for us to discuss or determine whether, in a proper case, where the defendant has been adjudged guilty of the wrong alleged in the declaration, the doctrine of res judicata will apply in applications for discharge under this statute. Conceding the rule to its utmost, we are of opinion that it can have no application to this case. The declaration offered in evidence contained three counts, •to which the plea of the general issue was filed, and on the-trial ■of the issue thus made a general verdict was rendered finding the defendant guilty and assessing the plaintiffs’ damages.
If it be conceded, which may be done for the purposes of .this case, that the first count of the declaration states a good ■cause of action in case, as for deceit, it can not be said, under the rulings of this .court, that the second and third counts present a good cause of action. The gravamen of the first count is, that the defendant; in the purchase of the goods mentioned, made false and fraudulent representations as to his financial .standing and the value of his assets; that such false and fraudulent representations were made with intent to deceive and defraud the plaintiffs, and induce them to sell the defendant goods on credit, and in reliance thereon the plaintiffs .did sell, etc. The second count of the declaration alleges, that the defendant applied to the plaintiffs to sell and deliver to him goods on credit, and to induce the plaintiffs to sell and ■deliver such goods on credit, represented that he intended to pay therefor at the end of the time of credit agreed upon; that, relying upon such statements and pretensions of the defendant, and believing that he intended to pay therefor, the plaintiffs sold and delivered to him goods, etc., which have not been paid for, and that the “aforesaid representations were false and fraudulent, and intended not to be fulfilled; ” that •during thé whole period of the purchase the defendant was wholly insolvent and unable to pay for said goods, and knew the same, and obtained the said goods with the fraudulent intention of not paying therefor, and of cheating and, defrauding •the plaintiffs out of the same.
The most casual comparison of this count of the declaration .and of the third count set out in the preceding statement, with the declaration in the ease of People ex rel. v. Healy, 128 Ill. 14, will show that no sufficient cause of action is set out in said counts to enable the plaintiffs to maintain an action for ■deceit. It was there said, quoting from Gage v. Lewis, 68 Ill. 604: “It can not be said that these representations and promises were false when made, for until the proper time arrived, and the defendant refused to comply with them, it could not be positively known that they would not be performed. Even if, at the time they were made, it was not intended to comply with them, it was but an unexecuted intention, which has never been held, of itself, to constitute a fraud.” And again: “A promise to perform an act, though accompanied at the time with an intention not to perform, is not such a representation .as can be made the ground of an action at law.” And it was "there held, and from which we see no occasion to recede, that in order to hold the purchaser of goods liable, in an action on the case, for fraud and deceit, he must have been guilty of making false representations of fact, or practicing some artifice or deception; and where such false representations are the basis of the action, they must relate to some past or existing fact. See Galligher v. Brunell, 6 Cow. 350; Kerr on Fraud and Mistake, 88.
The weight of authority probably is, that where property is ■obtained from another with a preconceived design on the part ■of the purchaser not to pay therefor, but to obtain the property and keep and defraud the vendor out of the same, upon the discovery of the fraud the vendor may avoid this contract of sale, and retake the property while still in the hands of the vendee. But in our judgment, the rule should not be extended beyond the requirements established by the adjudicated cases. The ■only representation here alleged to have been made is, that the defendant desired to purchase on credit, and that he would pay for the goods at the expiration of the credit agreed upon. There is no allegation in the counts under consideration that he made any representation of fact; past or existing.
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Mr. Chief Justice Shops
delivered the opinion of the Court:
It is insisted by appellees, that the petition of the debtor to the county court is insufficient to warrant his discharge, for the reason that it is not alleged therein that the writ under which the arrest was made was not issued in a “civil action where malice is not the gist of the action.” The objection is without merit. The proceedings before the county court under the Insolvent Debtors’ act are summary, and without formal pleading. The requirement of the statute is, simply, that notice of the application must be°given. The policy of our. law is opposed to imprisonment for debt, and no person within this State can be so imprisoned unless upon refusal to surrender his estate for the benefit of his creditors, as prescribed by law, or in cases where there is a strong presumption of fraud. (Const, sec. 12, art. 2.) By the Insolvent Debtors’ act the county court is given exclusive original jurisdiction in all applications for discharge from imprisonment under the provisions of that act. Undoubtedly, any persons interested may appear and object to the discharge of the debtor, or to his right to schedule; but the presumption being in favor of the liberty of the citizen, the statute contemplates the discharge of the debtor upon the surrender of his property, unless it shall appear that the writ has issued in a case where the debtor is not by law entitled to be discharged. And it is also contemplated that the proceedings shall be without delay, and that the court shall at all times be open to hear such applications. We think it clear that the proceeding is summary, and no formal pleadings required. It is enough that the imprisoned debtor offers to surrender his property and asks to be discharged. Upon appeal to the circuit court that court is required to hear the cause at the term to which the appeal is taken, unless for good cause shown, and upon affirmance of the judgment of the county court, in whole or in part, “give such direction to the county court in the premises, as shall be according to equity and justice.”
The principal question, however, arising upon this record ■ is, whether the circuit court erred in the exclusion of evidence offered by the petitioning debtor, and in directing the jury impaneled in said cause to find against the petitioner, and in rendering judgment affirming the order of the county court dismissing the petition.
• The judgment creditors filed an answer, setting up that the judgment upon which the writ issued, was rendered in a suit in which malice on the part of the petitioner was the gist of the action. On the hearing in the circuit court, the petitioner offered evidence tending to disprove this allegation. The respondents introduced in evidence what, for the purposes of this case, may be treated as the files and records of said original cause, and the court held that the petitioner was concluded by such record, and refused to permit the introduction of the offered testimony. It will be unnecessary for us to discuss or determine whether, in a proper case, where the defendant has been adjudged guilty of the wrong alleged in the declaration, the doctrine of res judicata will apply in applications for discharge under this statute. Conceding the rule to its utmost, we are of opinion that it can have no application to this case. The declaration offered in evidence contained three counts, •to which the plea of the general issue was filed, and on the-trial ■of the issue thus made a general verdict was rendered finding the defendant guilty and assessing the plaintiffs’ damages.
If it be conceded, which may be done for the purposes of .this case, that the first count of the declaration states a good ■cause of action in case, as for deceit, it can not be said, under the rulings of this .court, that the second and third counts present a good cause of action. The gravamen of the first count is, that the defendant; in the purchase of the goods mentioned, made false and fraudulent representations as to his financial .standing and the value of his assets; that such false and fraudulent representations were made with intent to deceive and defraud the plaintiffs, and induce them to sell the defendant goods on credit, and in reliance thereon the plaintiffs .did sell, etc. The second count of the declaration alleges, that the defendant applied to the plaintiffs to sell and deliver to him goods on credit, and to induce the plaintiffs to sell and ■deliver such goods on credit, represented that he intended to pay therefor at the end of the time of credit agreed upon; that, relying upon such statements and pretensions of the defendant, and believing that he intended to pay therefor, the plaintiffs sold and delivered to him goods, etc., which have not been paid for, and that the “aforesaid representations were false and fraudulent, and intended not to be fulfilled; ” that •during thé whole period of the purchase the defendant was wholly insolvent and unable to pay for said goods, and knew the same, and obtained the said goods with the fraudulent intention of not paying therefor, and of cheating and, defrauding •the plaintiffs out of the same.
The most casual comparison of this count of the declaration .and of the third count set out in the preceding statement, with the declaration in the ease of People ex rel. v. Healy, 128 Ill. 14, will show that no sufficient cause of action is set out in said counts to enable the plaintiffs to maintain an action for ■deceit. It was there said, quoting from Gage v. Lewis, 68 Ill. 604: “It can not be said that these representations and promises were false when made, for until the proper time arrived, and the defendant refused to comply with them, it could not be positively known that they would not be performed. Even if, at the time they were made, it was not intended to comply with them, it was but an unexecuted intention, which has never been held, of itself, to constitute a fraud.” And again: “A promise to perform an act, though accompanied at the time with an intention not to perform, is not such a representation .as can be made the ground of an action at law.” And it was "there held, and from which we see no occasion to recede, that in order to hold the purchaser of goods liable, in an action on the case, for fraud and deceit, he must have been guilty of making false representations of fact, or practicing some artifice or deception; and where such false representations are the basis of the action, they must relate to some past or existing fact. See Galligher v. Brunell, 6 Cow. 350; Kerr on Fraud and Mistake, 88.
The weight of authority probably is, that where property is ■obtained from another with a preconceived design on the part ■of the purchaser not to pay therefor, but to obtain the property and keep and defraud the vendor out of the same, upon the discovery of the fraud the vendor may avoid this contract of sale, and retake the property while still in the hands of the vendee. But in our judgment, the rule should not be extended beyond the requirements established by the adjudicated cases. The ■only representation here alleged to have been made is, that the defendant desired to purchase on credit, and that he would pay for the goods at the expiration of the credit agreed upon. There is no allegation in the counts under consideration that he made any representation of fact; past or existing. It has never been held, so far as we are advised, that it will constitute actionable fraud for a purchaser to buy when he is insolvent, knowing that to be his condition, and failing to disclose that fact to the'vendor, or that he purchases without any reasonable expectation that he can ever pay therefor. A contrary rule has been announced in many cases. Blow v. Gage, 44 Ill. 208; People ex rel. v. Healy, supra, and authorities cited.
We do not deem it necessary to enter upon an examination of the various cases cited by counsel and to be found in the books. It is manifest that no such fraud is set up in the second and third counts of the declaration, introduced in evidence, as would have entitled the plaintiffs to recover for fraud and deceit. There is no pretense or allegation of attempted rescission of the contract, nor is there any allegation that the-time of credit had expired. For aught that appears, the defendant may be ready and willing to pay at the time when it was agreed he should pay. Moreover, if it be conceded that the debt was past due, then, under the facts alleged in these counts of the declaration, the suit should have been brought, upon the promise.
The precise question here presented is, whether the judgment, when offered in evidence, was conclusive, under the doctrine of res judicata, so that the petitioner was estopped from showing that when he purchased the goods mentioned in the declaration in that case, he bought them in good faith, intending to pay for them, and not with any fraudulent intent, and that therefore malice was not the gist of the plaintiffs’' right of recovery against him in that action. The gist of an action is defined to be, the cause for which an action will lie ; the ground or foundation of a suit, and without which it would not be maintainable; the essential ground or object of a suit, without which it is not a cause of action. The term “malice, ” as used in the statute under consideration, is not to be eonsidered in the sense of hatred or ill-will, but of malus animus, and as denoting that the party is actuated by improper or dishonest motives. (Mitchell v. Jenkins, 5 B. & A. 594.) It implies a wrong inflicted on another, with an evil intent, design or purpose. In First National Bank v. Burkett, 101 Ill. 391, the court, in speaking of malice, as used in this statute, said: “It requires the intentional perpetration of an injury or wrong on another. The wrong and the intention to commit the injury are necessary to deprive the party of the right to a discharge from arrest or imprisonment. ”
The former judgment, when introduced in evidence, was conclusive as to every matter directly and properly at issue in that suit; and if the question of whether the petitioner, by false and fraudulent representations, or by fraud practiced and perpetrated upon the plaintiffs in that suit, obtained the goods, etc., was necessarily in issue, the doctrine of res judicata might be held to apply. The cases are substantially agreed as to the rule, but the difficulty arises in its application, in determining what is to be understood by the “matters in issue” upon the former trial, and what is meant by a judgment directly upon the same matter. (See 1 Starkie on Evidence, 190.) The Duchess of Kingston’s case, 11 State Trials, 261, furnishes the rule, as follows: “From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: First, that the judgment of a court of concurrent jurisdiction directly upon the point is, as a plea, a bar; or, as evidence, conclusive between the same parties upon the same matter directly in question in another court. Second, that the judgment of a court of exclusive jurisdiction directly upon the point is, in like manner, conclusive upon the same matter between the same parties, coming incidentally in question in another court for a different purpose. But neither the judgment of a concurrent nor exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.” (1 Phillips on Evidence, 321; Greenleaf on Evidence, 565.) It may be stated, generally, that by “matter in issue” is to be understood that matter upon which the plaintiff proceeds by his action, and which the defendant denies or controverts by his pleadings. And if the declaration, on its face, shows the special matter set up and relied upon by the plaintiffs, and the same is denied by the defendant’s plea, it will show the “matter in issue.” The judgment necessarily follows the nature of the right claimed in the declaration, or the injury complained of, and, generally speaking, can conclude nothing beyond such right or injury. As we have seen, the judgment is not evidence of any matter which is only to be inferred therefrom by argument, and which probably did, but might or might not, constitute the true ground of recovery. If the rule were otherwise, it would operate harshly and unjustly; for to admit a presumption that a fact is established by the judgment, and not allow that assumption to be rebutted by proof that it is without foundation, would be to reverse the rule applicable to all presumptions of fact. The authorities aré, therefore, that a judgment is conclusive only of what it necessarily and directly decides.
It is manifest, that it by no means follows that by the judgment in this case the defendant therein was found guilty of having made any false representations, or of having practiced any deceit, or resorted to any artifice, to obtain possession of the goods in the declaration mentioned, for which an action on the ease, as for deceit, would lie. Nor does it militate against this conclusion that the judgment, if rendered under the second and third counts, would be upon an immaterial issue. For some purposes the judgment would be referable to the good count in the declaration, as, upon motion in arrest, or upon error; but where the doctrine of res judicata is sought to be applied, it must conclusively appear that the matter was so in issue that it was necessarily determined by the court rendering the judgment interposed as a bar. It may also be that the matters set up in the second and third counts of the declaration, by means of which it is alleged the petitioner obtained the credit, were in a sense immoral; but as we have already seen, they formed no proper basis for a recovery in the action in which the judgment was obtained. It may also be true, that if the first count had not been in the declaration, the judgment might, on motion, have been arrested,—that it may have been the duty of the defendant to have demurred, as suggested by counsel, and of the court to have sustained the same, to said second and third counts; but that consideration can not affect the question being considered. It is apparent that the jury may just as well have found for the plaintiffs in that action, upon evidence tending to support the second and third counts, only, which would form no basis for or right of recovery for fraud or injury committed by the petitioner in that action, as upon the first count. The finding of the jury, we may argue, was predicated upon the allegation of the first count of the declaration; but it is manifest, under the rule, that will not suffice. If predicated upon the second and third counts of the declaration, alone, it was by no means such as would have authorized a recovery in the suit where malice is the gist of the action.
But it is said that no motion in arrest was entered by the defendant because of the defect in the declaration. Manifestly, such motion would have been unavailing had it been entered while the first count remained.
It follows, that we are of opinion that this judgment, under the pleadings, was not necessarily conclusive of the question as to whether malice was the gist of the action. Independently of the question of whether the record of the Superior Court of Cook county was receivable in evidence in the circuit court without proof of its identity and genuineness, we are of opinion that the court erred in excluding the offered evidence, and directing a vprdiet against the petitioner.
The judgments of the Appellate and circuit courts will be reversed, and the cause remanded to the circuit court for further proceedings not inconsistent with this opinion.
Judgment reversed.
Mr. Justice Craig, dissenting.