I do not agree with the foregoing opinion. Section 12 of article 2 of the constitution of Illinois has abolished imprisonment for debt except upon refusal of a debtor to deliver his estate for the benefit of his creditors and except in cases where there is a strong presumption of fraud. It has been held, however, that this provision does not extend to cases of tort, but applies only to debts arising out of contract between the parties, either express or implied. (Kitson v. Farwell, 132 Ill. 327; Kennedy v. People, 122 id. 649.) Section 2 of the Insolvent Debtors act (Smith's Stat. 1933, par. 2, p. 1598,) provides that any person imprisoned on execution in any civil action when malice is not the gist of the action may be released from such imprisonment by complying with the provisions of the act. It is necessary, therefore, to determine whether malice was the gist of the action which resulted in the judgment on which this capias was issued.
Malice is of the gist of the action in a count charging alienation of affections and is not of the gist of the action on a count charging criminal conversation. The verdict in this case was general, and inasmuch as one good count will sustain a general verdict there is nothing in this record to conclusively establish either that malice was or was not the gist of the action which resulted in the plaintiff's judgement. *Page 491 Under these circumstances it becomes necessary to resort to a presumption, either that malice was of the gist of the action, resulting in petitioner's continued imprisonment, or that malice was not necessarily of the gist of the action, resulting in her being set at liberty. In Buck v. Alex, 350 Ill. 167, in passing on this question this court used the following language: "If the declaration consists of several counts, one or more stating a cause of action the gist of which is malice and one or more a cause of action of which malice is not the gist, and the verdict is general, not specifying the count or counts on which it is based, the record does not show whether the verdict is based on a count stating malice as the gist of the action. The presumption is that the verdict and judgment are based upon a cause of action of which malice is the gist and that the defendant cannot be released from imprisonment under a capias ad satisfaciendum under the Insolvent Debtors act." No authorities are reviewed in that opinion, and no reason is assigned for indulging a presumption against, rather than for, the liberty of a citizen. In People v. LaMothe,331 Ill. 351, in connection with a consideration of section 12 of article 2 of the constitution, it was stated that in the enforcement of this provision every doubt should be resolved in favor of the liberty of the citizen. The two views thus expressed are not in harmony, and I have therefore made some examination of the authorities to determine a course which in my opinion should be pursued when presumptions must be indulged.
The earliest case in point which has come to my attention is that of Davis v. Robinson, io Cal. 411, where the opinion was written by Mr. Justice Field, since then a justice of the Supreme Court of the United States. In that opinion he stated the rule to be as follows: "There is no doubt as to the correctness of the position that the execution must be warranted by the judgment. It rests upon and must follow the judgment. If it exceeds the judgment *Page 492 it has no validity. To authorize, therefore, an arrest on execution the fraud must be stated in the judgment, for the writ issues, in the language of the statute, in the 'enforcement' of the 'judgment.' Nor do we entertain any doubt that the question of fraud must be submitted to the jury, except so far as may be necessary to authorize the arrest pending the action. To justify execution against the person, which may be followed by imprisonment, an issue must be framed and be determined like issues of fact raised upon the pleadings."
The case of Davis v. Robinson, supra, was commented upon, quoted from at great length, and followed, in the case ofLedford v. Emmerson, 143 N.C. 527, 55 S.E. 969, 10 L.R.A. (n. s.) 362. The judgment which resulted in the imprisonment in that case came about as follows: The plaintiff filed a complaint in which he alleged the defendant collected the proceeds of sale of certain options for the purchase of land which amounted to $10,000, and that the plaintiff's share thereof was $5000, from which $600 was to be deducted on settlement, leaving a balance due the plaintiff of $4400. The complaint further alleged that while he had consented that the options might be taken in the defendant's name (the defendant was his partner) upon the assurance that it would facilitate the sale of the land, it was done with the fraudulent intent of cheating and defrauding the plaintiff, and that the sale of the options was made with like purpose. The complaint further charged that a certain receipt for $250 made in connection with the original transaction was fraudulently obtained for the purpose of cheating the plaintiff out of his just and equitable share of the profits, the plaintiff claiming that he was an illiterate man and did not understand the transactions. The verdict of the jury was a general finding that the defendant was indebted to the plaintiff in the sum of $4225 "by reason of the matters alleged in the complaint." The court, after quoting from the California case above cited, said: *Page 493 "So that when the jury found that he was indebted to the plaintiff 'by reason of the matters alleged in the complaint,' they referred, or at least must be presumed to have referred, of course, to those matters, only, which were necessary to constitute a cause of action for recovery of the debt, and they were the transactions between the parties prior to the payment of the money to and receipt of the money by the defendant for the plaintiff's use." It was held that the judgment can be sustained without reference to the matters of fraud, and that it would not be presumed that the jury passed upon the fraud, there having been no special finding to that effect, and that a personal execution should not have been issued. In the opinion the court cites a prior North Carolina case (Preiss v. Cohen, I 17 N.C. 54, 23 S.E. 162,) and continues as follows: "There should be a separate and distinct issue submitted to the jury as to any fraud alleged unless the cause of action is of such a nature that the question of debt and fraud can be tried in one issue, so as to leave a clear and intelligible finding as to each of them. Such a case will rarely, if ever, be presented, but we do not at the present undertake to say that an issue in that form would not be proper. It is better practice, though, to have the fraud found as a fact under an issue by itself or separate from that as to the debt." The court further said: "Where the issue of fraud is raised by the pleadings the plaintiff must take the burden, and he must establish the fact of fraud before he can be entitled to an execution against the person of the defendant. We conclude this branch of the case with the language of Chief justice Pearson in Claflin v. Underwood, 75 N.C. 486: 'We concur with his honor in the conclusion that the defendant could not lawfully be arrested and imprisoned under a writ ofcapias ad satisfaciendum, for the reason that the issue of fraud had not been tried. By the constitution no person can be imprisoned for debt except in cases of fraud. No case of fraud had been proved against the petitioner.' *Page 494 We also refer to Merritt v. Wilcox, 52 Cal. 238, and Payne v.Elliott, 54 Cal. 339, 35 Am. Rep. 80, where the subject is discussed and the conclusion we have reached is fully vindicated."
A note to this case as published in Lawyer's Reports Annotated (n. s.) states that editorial search has failed to disclose any cases in point except the principal case and those cited therein. My own research has disclosed nothing later, except the statement of the general rule in Corpus Juris, (vol. 23, p. 917,) as follows: "In construing certain provisions as to executions against the person it has been held that in order that such an execution may issue there must be a submission to the jury of a distinct and separate issue as to the essential fact upon which the right to the execution is based, arising upon proper allegations in the complaint, an affirmative finding thereon, and a judgment entered in conformity therewith, from which the liability of the defendant to arrest will appear."
The case of Buck v. Alex, supra, is a descendant of the case of Jernberg v. Mix, 199 Ill. 254. In that case much is said tending to sustain the conclusion reached in Buck v. Alex, but it was all unnecessary to the decision of the case. The petitioner in the Jernberg case had been found guilty by a general verdict, but there was also a special finding, on a separately submitted interrogatory, that the defendant had the fraudulent intent to receive and convert to his own use deposits in the bank at the time the checks in evidence were deposited. This special finding quite clearly and satisfactorily supported the capias, and the discussion which was indulged in by the court was entirely unnecessary, and it is dictum. Even this dictum, if it had been necessary to a decision of the case, is unsound. It was said that the petitioner, in his application for discharge, was not estopped by the judgment to show that malice was not the gist of the action against him, but that he might have proved, if he could, that the verdict and judgment were *Page 495 based upon a count of which malice was not the gist of the action. The opinion suggests no means by which this proof might be made and I am unable to conceive of any. It is fundamental that a judgment is conclusive of the issues settled by it, and I know of no rule of law or evidence which will permit its impeachment or explanation — its impairment, limitation or modification — by any extrinsic evidence, nor otherwise than by an inspection of the record itself. No one would contend that the jurors on the former trial might be permitted to testify as to what happened in the jury room or what motivated their finding, and to permit any such inquiry to be made would be subversive of all our conceptions as to the solemnity and finality of judgments.
Inasmuch as one good count will sustain a verdict, it is impossible to determine from the record before us whether the verdict in this case was upon one count or the other or upon both. If a plaintiff in a civil action wishes to resort to acapias ad satisfaciendum in the collection of his debt, the way is clear and the road is plain by which he may make such a record as will not require the indulgence of any presumptions. The making of this record is within his control, and he may rely entirely upon counts of which malice is the gist or require the point to be settled by special interrogatory. I feel that the more humane rule, as well as the weight of authority, is in accordance with our expression in People v.LaMothe, supra, that all presumptions should be indulged in favor of the liberty of a citizen, and that when the record is left in doubt we should not presume that the verdict was based upon a count of which malice was the gist. The conclusion at which I have arrived is inconsistent with the holding in Buck v. Alex, supra, and to the extent of that inconsistency that case should be expressly overruled.
Mr. JUSTICE HERRICK, also dissenting. *Page 496