Mr. Presiding Justice Denis E. Sullivan
delivered the opinion of the court.
Plaintiff Ethel Peiffer brings this appeal to reverse an order of the circuit court of Cook county which was entered on February 9, 1939, quashing the writ of capias ad satisfaciendum issued on December 6, 1938, in a suit which was instituted in the circuit court by Nicholas Peiffer and Ethel Peiffer v. William French, wherein a judgment was obtained against William French on April 21, 1938, and in favor of plaintiffs aforesaid, in the amounts of $10,625 and $400, respectively, for personal injuries sustained by them in an automobile collision. The jury answered a special interrogatory finding the defendant William French guilty of wilful and wanton misconduct at the time and place in question.
On September 2, 1938, a writ of capias ad satisfaciendum was issued on both judgments against the defendant, William French. He was committed to the county jail on September 19, 1938. On December 6, 1938, an alias writ of capias ad satisfaciendum was issued in favor of plaintiff Ethel Peiffer, against the defendant William French. On motion of the defendant, this writ was quashed by order of court entered on February 9,1939, from which plaintiff Ethel Peiffer appeals.
The theory of the plaintiff Ethel Peiffer, is that she is entitled to enforce her judgment against the defendant, William French, through the means provided by statute. The capias ad satisfaciendum dated December 6, 1938, was issued pursuant to the statute in such case made and provided, and was based on a valid judgment in favor of plaintiff which had not been set aside or satisfied.
The theory of the defendant is that he relied upon only one proposition, and that is that a person who had been discharged by an order of court on a habeas corpus shall not be ag'ain imprisoned for the same cause; that there are exceptions to this proposition, but the plaintiff fails to bring her case within such exceptions.
It appears that on Monday, September 19, 1938, the defendant was taken into custody on a writ of capias ad satisfaciendum and on the same day the plaintiffs paid to the sheriff, the suni of $4 for board and jail fee of defendant commencing September 19,1938; that on Saturday, September 24, 1938, the plaintiffs tendered $3.50 to the sheriff of Cook county for board for the second week, but the sheriff refused to accept the payment on that day as being premature; that thereafter on Tuesday, September 27, 1938, the plaintiffs paid $3.50 to the sheriff for board of the defendant for the second, week.
It further appears that on September 29, 1938, a writ of habeas corpus was issued and on the same day the defendant was released on bond; that on October 10,1938, an order was entered by the circuit court discharging the defendant from the custody of the sheriff, for the reason as shown in the draft order of the court, so that the board of the defendant was due on September 26,1938, and because it was paid on September 27, 1938, the defendant was illegally detained.
It further appears that thereafter, on December 6, 1938, an alias writ of capias ad satisfaciendum was issued by the clerk of the circuit court on the judgment in favor of Ethel Peiffer. The defendant moved to quash the writ on the grounds that its issuance was contrary to the Habeas Corpus Act and on February 9, 1939, the circuit court entered an order quashing said writ.
There are several sections of the statutes of this State which must be considered in determining what was the intent of the legislature with regard to imprisonment for debt. There is no claim made as to the validity of the judgment or that a writ of capias ad satisfaciendum is not the proper means of enforcing the payment of a judgment. Chapter 65, section 26, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann: 109.338], known as the Habeas Corpus Act, reads as follows:
“No person who has been discharged by order of the court or judge, on a habeas corpus, shall be again imprisoned, restrained or kept in custody for the same cause, unless he be afterwards indicted for the same offense, nor unless by the legal order or process of the court wherein he is bound by recognizance to appear. The following shall not be deemed to be the same cause:
“1. If, after a discharge for a defect of proof, or any material defect in the commitment, in a criminal case, the prisoner should be again arrested on sufficient proof, and committed by legal process for the same offense.
“2. If, in a civil suit, the party has been discharged for any illegality in the judgment or process, and is afterwards imprisoned by legal process for the same cause of action.
“3. Generally, whenever the discharge has been ordered on account of the non-observance of any of the forms required by law, the party may be a second time imprisoned if the cause be legal and the forms required by law observed.”
It seems to us that the issue here is narrowed down to the question as to whether or not the defendant was discharged in the habeas corpus proceeding because of the nonobservance of one of the forms of procedure as required by law coming within the meaning of the Habeas Corpus Act as set forth above. There is no clearly defined decision in this State directly applicable except that in the case of Stroheim v. Deimel, 77 Fed. 802, p. 807, which case has been cited by appellant. We quote with approval a portion of the concurring opinion in that case which we think is more enlightening than is the majority opinion. District Judge Bunn, sitting in the court of appeals said:
“I concur fully in the general conclusion that the order of the circuit court discharging the prisoner must be reversed. . . .
“When the prisoner was arrested and sent to jail, a week’s board was paid by the creditor in advance, according to the statute; but for mere convenience of sending, being nonresidents of the state, after the first week the money was sent in sums larger than was required to pay just a week’s board in advance, but was always sent in advance. So that there was no time when the jailer was entitled to, discharge the prisoner, unless because the board bill was paid more in advance than was required by the statute; and it is on this ground the- prisoner asked to be discharged, and was discharged by the court below. This is one of the points mainly relied upon by the defendants in error, both in the circuit court and in this; court. It is fairly in the case, and may just as well be decided. In my judgment, this point should be ruled against the prisoner, and the order of the circuit court reversed on that ground. I am willing to go as far as any one in adopting a strict construction in favor of personal liberty, provided, always, that a remnant of propriety and good legal sense attend the decision. This provision of the statute was evidently intended as an indemnity to the jailer for the prisoner’s board while in jail. The prisoner was not liable for that. The creditor must pay it, and, as security to the jailer, it was provided that he must pay it in advance, so that the jailer would not have to trust to the creditor. If the creditor should not keep the board bill up by paying a week in advance, the jailer might discharge the prisoner. He was not obliged to, but he might do it. The prisoner had no interest in the matter of the board, except that it should be furnished him at the creditor’s cost.
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Mr. Presiding Justice Denis E. Sullivan
delivered the opinion of the court.
Plaintiff Ethel Peiffer brings this appeal to reverse an order of the circuit court of Cook county which was entered on February 9, 1939, quashing the writ of capias ad satisfaciendum issued on December 6, 1938, in a suit which was instituted in the circuit court by Nicholas Peiffer and Ethel Peiffer v. William French, wherein a judgment was obtained against William French on April 21, 1938, and in favor of plaintiffs aforesaid, in the amounts of $10,625 and $400, respectively, for personal injuries sustained by them in an automobile collision. The jury answered a special interrogatory finding the defendant William French guilty of wilful and wanton misconduct at the time and place in question.
On September 2, 1938, a writ of capias ad satisfaciendum was issued on both judgments against the defendant, William French. He was committed to the county jail on September 19, 1938. On December 6, 1938, an alias writ of capias ad satisfaciendum was issued in favor of plaintiff Ethel Peiffer, against the defendant William French. On motion of the defendant, this writ was quashed by order of court entered on February 9,1939, from which plaintiff Ethel Peiffer appeals.
The theory of the plaintiff Ethel Peiffer, is that she is entitled to enforce her judgment against the defendant, William French, through the means provided by statute. The capias ad satisfaciendum dated December 6, 1938, was issued pursuant to the statute in such case made and provided, and was based on a valid judgment in favor of plaintiff which had not been set aside or satisfied.
The theory of the defendant is that he relied upon only one proposition, and that is that a person who had been discharged by an order of court on a habeas corpus shall not be ag'ain imprisoned for the same cause; that there are exceptions to this proposition, but the plaintiff fails to bring her case within such exceptions.
It appears that on Monday, September 19, 1938, the defendant was taken into custody on a writ of capias ad satisfaciendum and on the same day the plaintiffs paid to the sheriff, the suni of $4 for board and jail fee of defendant commencing September 19,1938; that on Saturday, September 24, 1938, the plaintiffs tendered $3.50 to the sheriff of Cook county for board for the second week, but the sheriff refused to accept the payment on that day as being premature; that thereafter on Tuesday, September 27, 1938, the plaintiffs paid $3.50 to the sheriff for board of the defendant for the second, week.
It further appears that on September 29, 1938, a writ of habeas corpus was issued and on the same day the defendant was released on bond; that on October 10,1938, an order was entered by the circuit court discharging the defendant from the custody of the sheriff, for the reason as shown in the draft order of the court, so that the board of the defendant was due on September 26,1938, and because it was paid on September 27, 1938, the defendant was illegally detained.
It further appears that thereafter, on December 6, 1938, an alias writ of capias ad satisfaciendum was issued by the clerk of the circuit court on the judgment in favor of Ethel Peiffer. The defendant moved to quash the writ on the grounds that its issuance was contrary to the Habeas Corpus Act and on February 9, 1939, the circuit court entered an order quashing said writ.
There are several sections of the statutes of this State which must be considered in determining what was the intent of the legislature with regard to imprisonment for debt. There is no claim made as to the validity of the judgment or that a writ of capias ad satisfaciendum is not the proper means of enforcing the payment of a judgment. Chapter 65, section 26, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann: 109.338], known as the Habeas Corpus Act, reads as follows:
“No person who has been discharged by order of the court or judge, on a habeas corpus, shall be again imprisoned, restrained or kept in custody for the same cause, unless he be afterwards indicted for the same offense, nor unless by the legal order or process of the court wherein he is bound by recognizance to appear. The following shall not be deemed to be the same cause:
“1. If, after a discharge for a defect of proof, or any material defect in the commitment, in a criminal case, the prisoner should be again arrested on sufficient proof, and committed by legal process for the same offense.
“2. If, in a civil suit, the party has been discharged for any illegality in the judgment or process, and is afterwards imprisoned by legal process for the same cause of action.
“3. Generally, whenever the discharge has been ordered on account of the non-observance of any of the forms required by law, the party may be a second time imprisoned if the cause be legal and the forms required by law observed.”
It seems to us that the issue here is narrowed down to the question as to whether or not the defendant was discharged in the habeas corpus proceeding because of the nonobservance of one of the forms of procedure as required by law coming within the meaning of the Habeas Corpus Act as set forth above. There is no clearly defined decision in this State directly applicable except that in the case of Stroheim v. Deimel, 77 Fed. 802, p. 807, which case has been cited by appellant. We quote with approval a portion of the concurring opinion in that case which we think is more enlightening than is the majority opinion. District Judge Bunn, sitting in the court of appeals said:
“I concur fully in the general conclusion that the order of the circuit court discharging the prisoner must be reversed. . . .
“When the prisoner was arrested and sent to jail, a week’s board was paid by the creditor in advance, according to the statute; but for mere convenience of sending, being nonresidents of the state, after the first week the money was sent in sums larger than was required to pay just a week’s board in advance, but was always sent in advance. So that there was no time when the jailer was entitled to, discharge the prisoner, unless because the board bill was paid more in advance than was required by the statute; and it is on this ground the- prisoner asked to be discharged, and was discharged by the court below. This is one of the points mainly relied upon by the defendants in error, both in the circuit court and in this; court. It is fairly in the case, and may just as well be decided. In my judgment, this point should be ruled against the prisoner, and the order of the circuit court reversed on that ground. I am willing to go as far as any one in adopting a strict construction in favor of personal liberty, provided, always, that a remnant of propriety and good legal sense attend the decision. This provision of the statute was evidently intended as an indemnity to the jailer for the prisoner’s board while in jail. The prisoner was not liable for that. The creditor must pay it, and, as security to the jailer, it was provided that he must pay it in advance, so that the jailer would not have to trust to the creditor. If the creditor should not keep the board bill up by paying a week in advance, the jailer might discharge the prisoner. He was not obliged to, but he might do it. The prisoner had no interest in the matter of the board, except that it should be furnished him at the creditor’s cost. If he got his board, it was no great concern of his how long in advance it was paid for by the creditor. The circuit court held that a strict compliance with the statute required the board to be paid just a week in advance, and not more; and, because it was paid two weeks in advance, the prisoner was entitled to be discharged. I know of no decision, ancient or modern, English or American, adopting so strict a rule of construction, and a priori would never expect to find one, for it would seem beyond question that payment of the board bill two weeks or more in advance is not only a substantial, but a literal compliance with the statute. Payment two weeks in advance includes payment a week in advance. When one week is closed out, the money for the next week is already in the hands of the jailer, as required by the law; and who is' wronged by the money lying there a week or two week longer than the statute requires?”
It appears that in 1845 the Illinois Legislature changed the original Insolvent Debtors Act. Section 2 of said act, among other things, provides:
“If, at any time, the plaintiff, his agent or attorney shall fail to advance the jail fees, as herein provided, it shall be the duty of the officer or jailer, as the case may be, forthwith to discharge the prisoner.”
The Act of 1853, entitled “Ah Act in relation to committals to jail on writs of ca. sa.” amended section 2 of the act is as follows:
“Should such debtor be detained in jail under such writ for more than one week, it shall be the duty of such creditor at the commencement of each week to advance and pay to such jailer or sheriff the board of such debtor for each succeeding week that such debtor may be detained in such jail, and in default of such payment in advance, said debtor may be discharged by such jailor or sheriff.”
In 1872 the present act governing the committal of insolvent debtors to jail was passed by the legislature. The language of paragraph 30 of the present act (Ill. Rev. Stat. 1937, ch. 72, par. 30 [Jones Ill. Stats. Ann. 109.048]) uses the same language as that of the Act of 1853, and reads as follows:
“Should the debtor be detained in jail under such writ [evidently meaning the writ of capias ad satisfaciendum] for more than one week, it shall be the duty of the creditor, at the commencement of each week, to advance to such jailor the board of the debtor for the succeeding week,and in default of such payment in advance, the debtor may be discharged by such jailor.”
In 59 Corpus Juris at p. 1082, it was said:
“So, where a section of a statute is amended by striking out ‘may’ and inserting ‘shall’ in lieu thereof, an intent is shown to alter the directory nature of the law and render it mandatory; and conversely, an amendment substituting ‘may’ for ‘shall’ manifests a clear intent to make the act referred to optional and permissive instead of mandatory.”
In the case of People ex rel. Carson v. Muldoon, 306 Ill. 234, the Supreme Court in commenting on the use of words, at p. 238, said: “It is the settled rule that words used in a statute are to be given their ordinary meaning in general and popular use unless the court is certain that it is following the legislative intent in giving them a different meaning. (Way v. Way, 64 Ill. 406; Chudnovski v. Eckels, 232 id. 312; Culver v. Waters, 248 id. 163.)”
We think where a section of a statute was amended by striking out the word “shall” and inserting the word “may” it was the intent of the legislature to remove the mandatory provisions of the statute compelling the sheriff to discharge the prisoner. In the instant case the sheriff had received all his charges and was satisfied therewith at the- time the motion to quash was made. We do not think such narrow construction should be placed upon the language of the statute as it would substantially destroy the imprisonment statute. It is quite evident the purpose of the legislative act in requiring the amount of money to be paid in advance was to protect the taxpayers against the burden of supporting a debtor who had been imprisoned.
If the phrase “commencement of the week” were to be literally and strictly construed as claimed for, it would begin on Sunday and it would be difficult, if not impossible, to comply with such interpretation of the statute. And, more strictly speaking, the “week” woud commence at midnight and such narrow construction of the language used would create a situation fraught with many obstacles. It seems to us that if a sheriff receives a prisoner’s board in advance and is satisfied with it as being in compliance with the statute, the time of payment could not thereafter be used as a basis for the quashing of a writ. In the instant case plaintiff tendered the amount of the weekly board money on Saturday and the sheriff refused it because the payment was tendered too soon. The next day was Sunday, a holiday, and thereafter on the following. Tuesday the sheriff accepted the money as being his interpretation as the. proper time for such payment. We think a common-sense interpretation of this statute is that the payment of the money in advance, within a reasonable time, and the sheriff’s willingness to accept the- same, is all that is required by the statute. Consequently, we are of the opinion that the court erred in quashing the writ and releasing the prisoner.
For the reasons herein given the order of the circuit court is reversed and the cause is remanded with directions to vacate the order quashing the writ and that the defendant be returned to jail.
Order reversed and cause remanded with directions.
Hebel, J., concurs.