#### Schwarzschild & Sulzberger v. Louis Goldstein.

Gen. No. 11,940.

1. Form of action—how determined in justice court. The form of an action instituted before a justice of the peace is what the evidence makes it,

2. Malice—how question as to whether, is gist of action, determined. Where the action in question was instituted before a justice of the peace, such question cannot be determined as a matter of law from an inspection of the docket of the justice but must be ascertained by resort to the evidence heard in the cause.

3. Capias—when improperly used. The plaintiff in an action of tort may elect whether he have an execution against the body of the defendant or against his goods and chattels, and having had an execution against the goods and chattels of the defendant, the subsequent issue of a capias against his body is without jurisdiction and' void.

4. Habeas corpus—when proper remedy. Habeas corpus is the proper remedy by which to seek discharge from arrest under a void capias.

Action of replevin. Appeal from the County Court of Cook County; the Hon. Obrin N. Carter, Judge, presiding. Heard in this court at the October term, 1904.

Affirmed.

Opinion filed May 29, 1905.

Statement by the Court. Appellant sued appellee in replevin before a justice of the peace. The writ of replevin was returned property not found. The plaintiff, May 22, 1903, the defendant, Goldstein, not appearing, called for a *2jury of six, and the jury, after hearing evidence, rendered the following verdict:

“We, the jury, find the issues for the plaintiff and also find that the defendant fraudulently took and fraudulently and with intent then and there to cheat and defraud the plaintiff on the eighth day of May, 1903, at Chicago, Illinois, converted to his own use six barrels of beef tongues, the property of the plaintiff, of the value of one hundred and forty-seven dollars, and assess the plaintiff’s damages at the suin of one hundred and forty-seven dollars in trover.”

The form of the verdict was prepared by the attorney for the plaintiff, presumably with the approval of the justice. The justice rendered the following judgment:

“Whereupon it is considered by the court that the -said plaintiff have and .recover of and from the said defendant the said sum of one hundred and forty-seven dollars in tort for its damages in form as by the jury .assessed, with costs.”

May 23, 1903, on affidavit made b.y plaintiff’s agent, execution was issued against the goods and chattels of the defendant, and was delivered to a constable, and was returned the same day endorsed: “Mo property found, no part satisfied.” October 19, 1903, the plaintiff sued out from the justice and delivered to a constable a writ of capias ad satisfaciendum or execution against the body of the defendant, on which writ the defendant was arrested.

October 20, 1903, the defendant petitioned the County Court-to be discharged, from imprisonment in pursuance of the act concerning insolvent debtors, (Hurd’s Hev. Stat. 1903, p. 1045) alleging that he was not guilty of fraud or. malice, and that October 5, 1903, he obtained from the United States District Court a discharge in bankruptcy, and that the plaintiff’s debt was included in his schedule. The plaintiff answered, denying these averments, and such proceedings were had that a jury found the defendant, Gold-stein, not guilty, and judgment for costs was rendered against the plaintiff, from which judgment this appeal is.

*3Wheeler, Silber & Isaacs, for appellant.

Elijah H. Zolihe, for appellee.

Mr. Justice Adams

delivered the opinion of the court.

Appellant’s attorney, before a jury was called, offered in evidence the justice’s transcript, and moved the court, on the transcript, to remand the appellee to custody, which motion the court overruled. Counsel cite numerous cases to the effect that whether malice is the gist of an action must be determined by inspection of the record; that is, by inspection of the pleadings, showing what the issues were. The cases cited are all cases in courts of record, in which, consequently, pleadings are required, and have no application whatever to cases before justices of the peace, in which there are no written pleadings. Counsel for appellant correctly say that, in the court of a justice of the peace the action is what the evidence makes it, citing Blattau v. Evans, 57 Ill. App., 311; Block v. Blum, 33 ib., 644; Steele v. Hill, 35 ib. 211, and Swingley v. Haynes, 22 Ill. 214. This being true, the County Court could not determine, from the transcript of the proceedings before the justice, what the nature of the action was, or whether malice was of the gist of the action; because the evidence before the justice is not preserved in the transcript, or in any other way. Therefore, the court properly refused to grant appellant’s motion. Moreover, appellee was entitled, under section 5 of the Insolvent Debtor’s Act, to have the question whether he was guilty of fraud, as counsel chargé, tried by jury.

Counsel contend that the verdict is against the weight of the evidence, and that some of thé instructions are erroneous; but we do not think it necessary to discuss these contentions, as we think the judgment must be affirmed on a ground not discussed by counsel. The action was for a tort, as clearly appears from the evidence, and as appellant’s counsel claim. Section 3 of article 11 of the act in relation to justices of the peace and constables is as follows: “Upon all judgments in actions of tort, or where the defendant is in *4custody, or has been held to bail upon a capias, as provided in this act, the justice may issue an execution against the body or goods and chattels of the defendant, at the election of the plaintiff.” Hurd’s Stat. 1903, p. 1167. Election is “the act of choosing.” As used in the law, it is thus defined: “Law: The choice made by a party of two alternatives, by taking one of which the chooser is excluded from the other.”. Webster’s Dictionary. The- word election is generally used, in the law, in a case where a party has two inconsistent-remedies; but no question as to inconsistent remedies can arise under section 3, because the section expressly mentions two things and requires the plaintiff to elect between the two, namely, between an execution against the body and an execution against the goods and chattels of the defendant. The section cannot he otherwise understood, without practically eliminating from it the words “or” and “election,” which would he contrary to the fundamental rule that effect must be given, if possible, to every word of a statute. Had the legislature intended that a plaintiff should, in cases ex delicto, have both remedies, it would have been so expressed, as in the case of a fine imposed by a justice, in the exercise of ' his criminal jurisdiction. ■ ■

Sections 7 and 8 of article 18, chapter 79, authorize the justice, when a fine is imposed, to issue, first, execution against the goods and chattels of the defendant, and, if the same shall be returned nulla bona, to issue a capias against the body of the defendant-. Hurd’s Stat. 1903, p. 1173.

The transcript of the proceedings before the justice, in this case, was put in evidence by appellant, and shows that Hay 23, 1903, the appellant caused an execution to be issued against the goods and chattels of appellee. This was an election, and, therefore, the capias issued October 19, 1903, was unauthorizéd by law. While appellee might have been discharged on habeas corpus, and perhaps such was the proper remedy, appellant is not in a position to object to the remedy pursued, and substantial justice having been done by the judgment discharging appellee from imprisonment, the judgment will be affirmed. Affirmed.