dissenting:
The writer of this opinion is constrained to dissent from the conclusions reached by the majority.
It is true, as stated in the majority opinion, that the defendant admits in the brief filed in this court that the writ of capias ad satisfaciendum had been properly issued. Nevertheless, an admission of that character does not prevent this court from making a determination as to whether all of the statutory requirements were complied with. This matter is particularly interesting to the writer because it is an anomaly existing in our laws in this enlightened age.
Up to the time when the legislature repealed the act providing for capias ad respondendum, it was possible to have the defendant in a civil case arrested and compelled to give bail. In case of failure to give bail he was committed to a debtor’s prison. In 1838, England, apparently taking a more enlightened view than our State, abolished arrest on mesne process. Shatz v. Paul, 7 Ill App2d 223, 129 NE2d 348 (decided in 1955). Parnass, “Imprisonment for Civil Obligations in Illinois,” 15 Ill L Rev 559, 571 (1920-21), says:
“Thus almost two centuries after English debtors, seeking relief from the harsh laws of England, founded an American colony, the institution of the debtor’s prison still prevails in Illinois and in other states of the Union, though many have abolished it altogether. It is true, of course, that in this state, continued incarceration is possible only where the defendant is guilty of a malicious tort or dishonestly refuses to surrender his property for the satisfaction of a judgment against him, or is guilty of other fraud. It is nevertheless to be noted that execution against the body even in such cases presents the anomaly of imposing a criminal consequence upon a civil judgment, a judgment which may have been entered by default, a judgment based on a verdict and on a trial of the issues wherein the charges need be proved merely by a preponderance of the evidence, and not, as in other cases where criminal consequences follow, beyond all reasonable doubt.”
We are aware that the Supreme Court of this State, in a series of opinions commencing with 1853, People ex rel. Brennan v. Cotton, 14 Ill 414, has held that the constitutional provision abolishing imprisonment for debt is applicable only to actions upon contracts. A number of these cases were cited in In re Petition of Blacklidge, 359 Ill 482, 195 NE 3. It seems high time to the writer of this dissent that section 12 of article 2 of the Illinois State Constitution of 1870 should be revised.
In People v. LaMothe, 331 Ill 351, 163 NE 6, an opinion handed down in 1928, dealing with the power of a court of equity to punish for contempt by imprisonment upon the refusal of a trustee to pay over money actually received and wrongfully withheld, the court in an enlightened opinion said:
“No one should be imprisoned for a failure to pay money unless the evidence clearly shows that the party charged has the money within his power to pay, or that he had the money and wrongfully disposed of it. Courts may imprison for willful defiance, but they will not imprison for a failure to comply with a decree where the disobedience is not willful .... No man can be legally imprisoned for a failure to pay over money he does not have and never had.”
In Peiffer v. French, 376 Ill 376, 33 NE2d 591 (opinion decided in 1941), the court said:
“Laws in derogation of the liberty of a citizen must be strictly construed, and to justify any imprisonment for tort, which is contrary to the general tendency of our times, statutory requirements must be meticulously observed.”
The law in effect prior to the amendment of section 5 of chapter 77 provided:
“Cahill, Ill Rev Stats 1933, c 77, § 4. Execution. The person in whose favor any judgment, as aforesaid, may be obtained, may have execution thereon in the usual form, directed to the proper officer of any county, in this State, against the lands and tenements, goods and chattels of the person against whom the same is obtained, or against his body, when the same is authorized by law.
“Ill Rev Stats 1933, c 77, § 5. Execution against body, when. No execution shall issue against the body of the defendant, except when the judgment shall have been obtained for a tort committed by such defendant, or unless the defendant shall have been held to bail upon a writ of capias ad satisfaciendum [respondendum] as provided by law, or he shall refuse to deliver up his estate for the benefit of his creditors.
“[In lieu of RS 1845, p 301, § 6. See Const 1870, art II § 12: ‘Bail in Civil Cases,’ ch 16. Capias ad satisfaciendum in above section means capias ad respondendum. People v. Hoffman, 97 Ill 234. Cases in point, see Callaghan’s Ill Dig, Executions, §§ 89-125.]”
Section 5 of chapter 77 was amended in 1935, and now provides that:
“No execution shall issue against the body of the defendant except when the judgment shall have been obtained for a tort committed by such defendant, and it shall appear from a special finding of the jury, or from a special finding by the court, if the case is tried by the court without a jury, that malice is the gist of the action, and except when the defendant shall refuse to deliver up his estate for the benefit of his creditors.” [Note that it requires that there be a finding that malice is the gist of the action, “and except when the defendant shall refuse to deliver up his estate for the benefit of his creditors.” (Emphasis supplied.)]
Under the former section 5, execution against the body of the defendant could be obtained when a tort judgment had been entered against him. Ingalls v. Raklios, 373 Ill 404, 26 NE2d 468, discussed section 5 as amended, and held that there had to be a special finding that malice was the gist of the action before a body execution could be issued, and it was so held in Greener v. Brown, 323 Ill 221, 153 NE 825 (decided 1926 before the 1935 amendment was passed). In the latter case the court held that in a tort action where the trial court had found that malice was the gist of the action, it was not necessary, before the issuance of the capias, that demand should have been made or execution served upon the defendant requiring him to turn over his estate. The court did not cite or quote from the statute.
In re Petition of Blacklidge, 359 Ill 482, 195 NE 3 (opinion filed 2/15/35, case decided under the law prior to amendment of section 5), was a tort action in which the jury found the defendant guilty, and at page 485, the court said:
“It will thus be noted that the statute provides that the plaintiff may have execution against the body of the defendant when the same is authorized by law, and specifically excepts from the prohibition against such executions any judgments obtained for a tort committed by the defendant; in such cases an execution against the body is deemed authorized by law. (People v. Walker, 286 Ill 541.) It is further provided by section 2 of the Insolvent Debtors act (Cahill’s Stat 1933, p 1574; Smith’s Stat 1933, pp 1598, 1599;) that any person arrested, or imprisoned upon any process issued for the purpose of holding him to bail upon any indebtedness or in any civil action of which malice is not the gist may be released from such imprisonment by complying with the provisions of that statute.”
The court held that in order for the petitioner to bring herself under the provisions of the Insolvent Debtors Act, which she attempted to do in the petition, it was necessary for her to prove that malice was not the gist of the action. The court held that the petitioner had failed to make such proof. The court cited People v. Walker, 286 Ill 541, 122 NE 92, in which case the former statute was cited, and it was pointed out that “no execution shall issue against the body except when the judgment shall have been obtained for a tort committed by the defendant, or unless the defendant shall have been held to bail or shall refuse to deliver up his estate for the benefit of his creditors.”
In Marshall Field & Co. v. Freed, 269 Ill 558, 109 NE 1018 (opinion handed down in 1915), the court held that where the judgment was for a tort committed by the defendant it was never contemplated nor required that the plaintiff should make an affidavit that the debtor had property which he unjustly refused to surrender, or that he fraudulently conveyed, concealed or otherwise disposed of property with a design to secure the same to his own use or to defraud his creditors. The court further held that under section 5 of the former Act, if the judgment was for a tort committed by the defendant, an execution against the body was authorized without regard to whether the defendant had or had not property and without regard to whether he had refused to deliver up his estate for the benefit of his creditors, and the court so construed the statute. The court further pointed out that the precise question had not been previously decided by the court.
Under the 1935 amendment to section 5, the legislature provides: “and except when the defendant shall refuse to deliver up his estate for the benefit of his creditors.” In order to reach the conclusion that an execution may issue without a demand on the defendant to turn over his estate, we must consider that the legislature did not know anything about the former law or that the use of “and” instead of “or” was inadvertent. In any case, under the rule that a strict construction must be given to statutes which can deprive a person of his liberty, meaning must be given to the legislature’s use of the word “and.”
We are familiar with the fact that in Addante v. Pompilio, 317 Ill App 150, 45 NE2d 521 (abst.), in In re Petition of White, 302 Ill App 69, 23 NE2d 401 (abst.), in Pappas v. Reabus, 299 Ill App 499, 20 NE2d 327 and in Brandtjen & Kluge, Inc. v. Forgue, 299 Ill App 585, 20 NE2d 616, it is held that under the amendment the statute does not require a demand or showing that the delivery of the goods has been requested. These cases were decided shortly after the amendment to section 5 was passed by the legislature. It is. the opinion of the writer that they should no longer be followed and that section 5 as amended should be interpreted to require, even in tort cases where there is a specific finding that malice was the gist of the action, that there must be a showing that the defendant has refused to deliver up his estate for the benefit of his creditors. In this day and age, to hold otherwise should shock the judicial conscience.
In the petition which the plaintiff filed in the instant case, asking that the court direct a body execution to issue, no such showing was made. In denying the petition, the court ruled properly, and the case should be affirmed.