Myrtle Tanner Blacklidge was arrested and imprisoned in the county jail under a capias ad satisfaciendam issued upon a judgment rendered by the superior court of Cook county in favor of Susanne Nottingham. Alleging that her imprisonment was illegal, Mrs. Blacklidge filed a petition in the county court of Cook county seeking her release by the delivery of her property. The cause was heard by the county court without a jury upon petitioner's motion to be discharged under the Insolvent Debtors act, the petition and the declaration. No evidence was adduced. The court found that malice was the gist of the action in which judgment was recovered against petitioner, denied the prayer of her petition and remanded her to the custody of the sheriff. Charging the violation of her constitutional rights, Mrs. Blacklidge prosecutes this writ of error.
The declaration in the principal case consisted of two counts, the first of which charged, in substance, that defendant willfully and maliciously alienated the affections of Norman E. Nottingham, plaintiff's husband. By the *Page 484 second count plaintiff alleged that defendant "wrongfully and wickedly and maliciously debauched and carnally knew the said N.E. Nottingham, then and there still the husband of the plaintiff," thereby alienating and destroying his affections for his wife. The cause was submitted to a jury, which returned a general verdict finding Mrs. Blacklidge guilty and assessing plaintiff's damages at $7500.
It is first urged that the capias ad satisfaciendum was illegally issued because the cause of action on which it was based did not involve "fraud," "refusal to surrender one's estate," nor the element of "malice." Section 12 of article 2 of the constitution has abolished imprisonment for debt in this State except upon the refusal of the debtor to deliver his estate for the benefit of his creditors pursuant to statutory requirements, or in cases where there is a strong presumption of fraud. As early as 1853 this constitutional inhibition was held applicable only to actions upon contract. (People v.Cotton, 14 Ill. 414.) Since that early decision this court has consistently held that the provision does not extend to cases of tort but applies solely to debts arising out of contract between the parties, either express or implied. (Lipman v.Goebel, 357 Ill. 315; Buck v. Alex, 350 id. 167; People v.Walker, 286 id. 541; Kitson v. Farwell, 132 id. 327; Kennedy v.People, 122 id. 649; Rich v. People, 66 id. 513; McKindley v.Rising, 28 id. 337.) As neither section 12 of article 2 nor any other provision of the constitution prohibits imprisonment for debt in tort cases, it follows that the legislature has the power, if it so elects, to provide imprisonment for debt in tort actions. The legislature has exercised this power by providing in sections 4 and 5 of an act entitled, "An act in regard to judgments and decrees, and the manner of enforcing the same by execution, and to provide for the redemption of real estate sold under execution or decree," (Cahill's Stat. 1933, p. 1710; Smith's Stat. 1933, p. 1731;) that the person in whose favor any judgment may be obtained *Page 485 may have execution thereon, in the usual form, against the lands or tenements, goods and chattels, of the person against whom the judgment is obtained, or against his body when the same is authorized by law, but 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. 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.
It is argued, however, that the respective statutory provisions for the issuance of a capias ad satisfaciendum in tort cases involving neither fraud nor the refusal of a judgment debtor to surrender his estate in satisfaction of the judgment and for the release of judgment debtors wrongfully imprisoned, transcend section 12 of article 2. To sustain this contention reliance is placed principally upon the case of Inre Smith, 16 Ill. 347, which construed section 15 of article 13 of the constitution of 1848, identical with the 12th section of article 2 of the constitution of 1870. The court merely held in the case cited, and also in the later case of Strode v.Broadwell, 36 Ill. 419, that the General Assembly can prescribe no means for imprisonment *Page 486 for debt except in conformity with the basic law. Obviously, these two cases do not hold that the legislature may not provide for the issuance of a capias ad satisfaciendum or prescribe the procedure for the discharge of a debtor seized and imprisoned in a case and under circumstances to which the constitutional provision against imprisonment for debt is inapplicable. The fourth and fifth sections of chapter 77 of the Revised Statutes provide for the issuance of a capias adsatisfaciendum under circumstances and for causes not prohibited by the constitution, and section 2 of the Insolvent Debtors act affords one seized and imprisoned an opportunity to have a court of competent jurisdiction ascertain whether his imprisonment is lawful. These statutory provisions do not violate section 12 of article 2.
The second contention of Mrs. Blacklidge is that no body execution can lawfully issue under sections 4 and 5 of chapter 77 unless it be for a tort involving "fraud" within the contemplation of section 12 of article 2 of the constitution, and that it does not include such torts as alienation of affections and criminal conversation. This contention cannot be sustained, because the constitutional provision did not contemplate, and has no application to, tort actions. She asserts, however, that upon the mere allegation in a declaration that defendant committed a trespass maliciously he will be precluded from obtaining his discharge under the provisions of the Insolvent Debtors act, and that the word "malice" must be construed to apply only to cases of fraud or where a debtor refuses to surrender his estate. In a tort action based on malice the writ of capias ad satisfaciendum may be obtained on a judgment against the defendant without an execution being issued to require him to deliver his property. (Greener v. Brown, 323 Ill. 221.) In such case, the person arrested and imprisoned is not entitled to be released upon the surrender of his property. (Lipman v. Goebel, supra; In re *Page 487 Mullin, 118 Ill. 551.) The plain intent of section 2 of the Insolvent Debtors act is to afford the debtor arrested on acapias under chapter 77 an opportunity to show in the county court that malice was not the gist of the action. In this case Mrs. Blacklidge did not seek to prove that malice was not the gist of the original action and elected to submit her petition solely upon the declaration in that action.
It is also argued that sections 4 and 5 of chapter 77 are invalid because under their provisions a body execution can issue only against a natural person, and that these sections thereby discriminate between such persons and corporations. This same contention met an adverse decision in Lipman v.Goebel, supra, where we expressly held that section 5 of chapter 77 did not violate either the equal protection of the laws clause of the fourteenth amendment to the Federal constitution or section 12 of article 2 of the State constitution.
It is further claimed that the word "debt," employed in section 12 of article 2 of the constitution, includes debts on judgments rendered in tort cases. The mere fact that a judgment for money may be deemed a debt in the sense that the judgment debtor owes the judgment creditor does not render the judgment debt in a tort case one within the contemplation of section 12 of article 2. In particular, that provision is inapplicable to judgments recovered for malicious torts committed by the judgment debtor. Lipman v. Goebel, supra; Buck v. Alex, supra;People v. Walker, supra.
We come, finally, to the question whether malice is the gist of an action in a case involving criminal conversation. To sustain her position that it is not, Mrs. Blacklidge places reliance on People v. Greer, 43 Ill. 213. That case was an original proceeding in mandamus instituted in this court on the relation of Silas Livergood against the county judge of Macon county, who had denied the prayer of his petition for discharge from the custody of the sheriff of that *Page 488 county. Livergood had been arrested under a writ of capias adsatisfaciendum issued out of the circuit court upon a judgment recovered against him, and in favor of Peter Kob, in an action on the case for an alleged seduction of Kob's daughter. In awarding a peremptory mandamus this court held that the wrong for which the judgment was rendered against the relator did not originate in malice; that malice was not the gist of the action in the principal case, and that the judgment debtor therefore enjoyed the right to be dealt with as an insolvent debtor. Even if it be conceded that malice is not the gist of an action for criminal conversation the concession cannot avail Mrs. Blacklidge, because the declaration in the cause in which she was found guilty consisted of two counts, only one of which was based on alleged criminal conversation. In the case cited it does not appear that the declaration contained allegations with respect to any tort other than seduction. Manifestly, the case of People, v. Greer, supra, is not parallel with the present case.
The judgment in the principal case in the superior court was rendered in a tort action, and the plaintiff in that action, Mrs. Nottingham, was entitled to a capias ad satisfaciendum authorizing the imprisonment of the defendant until satisfaction of the judgment. Although the constitutional provision (section 12 of article 2) cannot avail Mrs. Blacklidge, she did have recourse to the Insolvent Debtors act. By the second section of that statute, any person imprisoned upon execution in any civil action, when malice is not the gist of the action, may be released from such imprisonment upon compliance with the provisions of the statute. It is conceded that she pursued the course prescribed by that act. The question remains, therefore, whether malice was the gist of the action in which the judgment was recovered against her.
"Malice," within the contemplation of the Insolvent Debtors act, does not necessarily mean hatred or ill-will but *Page 489 applies to that class of wrongs which are inflicted with an evil intent, design or purpose. It carries the implication that the guilty party was actuated by improper and dishonest motives, with the intention to perpetrate an injury on another. (Lipman v. Goebel, supra; Buck v. Alex, supra; Greener v.Brown, supra; Seney v. Knight, 292 Ill. 206.) The "gist of the action" constitutes the essential ground or object of a suit, without which there is not a cause of action. (Lipman v.Goebel, supra; Greener v. Brown, supra; Jernberg v. Mix,199 Ill. 254.) Malice may be made the gist of the action if properly pleaded. (Lipman v. Goebel, supra; Seney v.Knight, supra.) Whether malice is the gist of a particular action is to be determined from the charges made in the declaration. (Lipman v. Goebel, supra; Greener v. Brown,supra.) The declaration' in the action instituted by Mrs. Nottingham consisted of two counts, both of which charged malice, and in one of which (the count charging alienation of affections) malice is the gist of the action. The verdict returned was a general verdict. In such cases, where the record does not show whether the general verdict was based on a count in which malice is the gist of the action, the presumption obtains that the verdict and judgment are based upon a cause of action of which malice is the gist. (Buck v. Alex, supra;Jernberg v. Mix, supra.) The judgment, however, is not conclusive that there was malice or that the party was actuated by improper motives, because the verdict may have been returned upon a count which did not include the element. (Jernberg v.Mix, supra.) It necessarily follows that in a proceeding under section 2 of the Insolvent Debtors act the petitioner is not estopped by the judgment from showing that the verdict was based upon a count where malice was not the gist of the action. (Buck v. Alex, supra; Jernberg v. Mix, supra; Kitson v.Farwell, supra.) In this case the general verdict of guilty was, in effect, a finding of guilty against Mrs. Blacklidge upon *Page 490 each of the two counts. Prima facie the record discloses that malice was the gist of the action, and in the present proceeding she did not attempt to prove that the verdict was returned upon the criminal conversation count, of which malice was not the gist. To avail herself of the remedy afforded by the Insolvent Debtors act it was essential for her to bring herself within the provisions of the statute by establishing the fact that malice was not the gist of the action. This she has failed to do.
The judgment of the county court is affirmed.
Judgment affirmed.