#### In the matter of the Petition of Jacob Bremer. On Appeal of Jacob Bremer, Appellant, v. William Murray, Appellee.

Gen. No. 18,816.

(Not to be reported in full.)

Abstract of the Decision.

1. Execution, § 302 * —when evidence on question of malice for discharge from custody under a ca. sa. On petition filed by a judgment debtor in the County Court under the Insolvent Debtor’s Act, *638J. & A. ¶ 6199, to be released from custody under a capias ad satisfaciendum issued on a judgment, refusal of court to permit the petitioner to show by evidence that malice was not the gist of the action for the reason that the judgment record was res adjudicata on the question, held proper.

*637Appeal from the County Court of Cook county; the Hon. John E. Owens, Judge, presiding.

Heard in the Branch Appellate Court at the October term, 1912.

Affirmed.

Opinion filed January 22, 1914.

Statement of the Case.

Petition filed by Jacob Bremer in the County Court under the Insolvent Debtors’ Act to be released from custody under a capias ad satisfaciendum issued upon a judgment of tort recovered against the petitioner in the Municipal Court of Chicago in an action brought by William Murray. From a judgment denying the petition, petitioner appeals.

George Remus, for appellant.

Kruse & Peden and R. C. Merrick, for appellee.

*

See Illinois Notes Digest, Vols. XI to XV, sama topic and section number.

Mr. Justice Scanlan

delivered the opinion of the court.

*6382. Execution, § 295 * —when record of judgment conclusive on question of malice on petition for discharge from custody under a ca. sa. The record of a judgment in tort recovered against defendant in an action charging defendant with making fraudulent representations that a trust deed was first lien upon real estate described therein to induce the plaintiff to purchase the deed, held res adjudicata on the question whether malice was the gist of the action, it appearing that the jury returned a special finding and the court found that the misrepresentations were made with malicious and fraudulent intent.