#### In re Petition of R. O. Witzke, Appellant, v. Frederic Greer, Appellee.

Gen. No. 20,948.

(Not to be reported in full.)

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

Heard in the Branch Appellate Court at *207the October term, 1914.

Reversed and remanded.

Opinion filed October 6, 1915.

Statement of the Case.

Petition by E. O. Witzke against Frederic Greer for release from arrest under the Insolvent Debtors’ Act (J. & A. ¶¶ 6198-6250 inc.), petitioner having been arrested for failure to satisfy a writ of capias ad satisfaciendum after judgment against him in an action of trover. From a judgment denying the petition, the petitioner appeals.

On November 5,1913, a writ of replevin was issued from the Municipal Court of Chicago on behalf of Frederic Greer, appellee, and against A. E. Armstrong and E. O. Witzke, the latter being the appellant,-for the recovery of an automobile. The property not being recovered, on November 20th, in the same action, ^plaintiff filed a statement of claim in the usual and customary form used in an action of trover, alleging damages in the sum of $275.

To this statement of claim defendant filed an affidavit of merits, setting forth, in substance, that he became the purchaser of the said automobile at a public sale held by the bailiff of the Municipal Court of Chicago under a writ of execution issued by the said Municipal Court. Upon the conclusion of the trial, plaintiff presented a motion in writing to instruct the jury to find the issues in his favor, accompanied with the following instruction:

“The court instructs the "jury to find the defendant guilty and assess the plaintiff’s damages at the sum of two hundred and seventy-five dollars ($275) in trover.”

The court, however, refused to direct a verdict in that form, but gave the jury the following form of verdict with directions to sign same:

“We, the jury, find the defendants, H. E. Armstrong and E. O. Witzke, guilty of having maliciously, wil*208fully and intentionally, and with intent to injure and defraud the plaintiff converted to defendants’ own use, the_ goods and chattels of the plaintiff and assess the plaintiff’s damages at the sum of two hundred and seventy-five dollars ($275),”

which was returned by the jury and judgment rendered thereon by the court. Said judgment and costs not having been paid, a capias ad satisfaciendum was issued and served upon the defendant. Upon his .failure to satisfy the writ, defendant was taken into custody. On the same day he filed his petition for release from such arrest, under the Insolvent Debtors’ Act (J. & A. ¶¶ 6198 et seq.), and was released on a bond conditioned upon his appearance on the hearing of said petition. On the hearing before the court all the papers in the original replevin suit were produced, viz.: The affidavit, writ and bond, plaintiff’s statement of claim, defendant’s affidavit of merits, the motion for a directed verdict presented by the plaintiff, the form of verdict as set out in said motion, also the verdict returned by the jury at the direction of the court, and the judgment issued thereon. Upon this state of the record defendant asked the discharge of the defendant on his petition, insisting that malice was not the gist of plaintiff’s action. Plaintiff maintained the contrary, insisting that trover is an unlawful conversion of property and that the verdict of the jury found defendant guilty of having maliciously, wilfully and with -intent to injure and defraud the plaintiff, converted to his own use the goods and chattels of the plaintiff, and that judgment having been rendered thereon, said judgment was res adjudícala on the question whether malice is or is not the gist of the action. The court held that malice was the gist of the action, and upon that ground remanded defendant to the custody of the sheriff.

C. A. Fitch, for appellant.

McInerney, Power & Byrnes, for appellee.

*209Abstract' of the Decision.

1. Execution, § 295*—how question of malice determined. The question whether malice is the gist of an action so as to entitle a debtor who has been arrested for failure to satisfy a writ of capias ad satisfaciendum to a release from imprisonment upon petition under the Insolvent Debtors’ Act (J. & A. ¶¶ 6198-6250 inc.), must be. determined from the face of the record when the record affords the means of such determination.

2. Judgment, § 454*—when question as to malice res adjudicata. If it appears from the pleadings in an action that malice was the gist of the action, the doctrine of res adjudicata applies as to the question whether or not malice was or was not the gist of the action.

3. Trover and convebsion, § 7*—what is gist of the action. The gist of an action in trover is the conversion of the property.

4. Trover and convebsion, § 37*—what proof essential. All that need be shown in a count sounding in trover is the ownership of the property in the plaintiff, that it came into the possession of the defendant, and that the defendant converted it to his own use.

5. Execution, § 294*—when release of judgment debtor in trover proper. A judgment debtor who has been arrested upon a capias ad satisfaciendum after failure to pay a judgment in an action in the Municipal Court is entitled, upon petition under the Insolvent Debtors’ Act (J. & A. ¶¶ 6198-6250 inc.), to be released from custody where the statement of claim clearly shows that the action is one of trover, since malice is not the “gist” of such an action.

6. Execution, § 295*—when verdict cannot supply malice. The verdict in an action in the Municipal Court cannot supply the element of malice or fraud unless they appear in the statement of claim either expressly or impliedly.

Mr. Justice Pam

delivered the opinion of the court.