No. 111—2381.

#### In re John Mullin et al.

Charles Spangenberg recovered a judgment for §5,000 against John Mullin and Peter McHugh, in the Superior Court of Cook county, in an action of trespass for an assault and battery, said judgment-being afterward affirmed on appeal by this court and the Supreme Court: Mullin et al. v. Spangenberg, 112 Ill. 140. The defendants, having been committed to the custody of the sheriff of Cook county on a writ of capias ad satisfaciendum issued on said judgment, a petition was presented by them to the county court praying to be released from said imprisonment on' delivering up their property. Their petition was denied by the county court, and on appeal to the circuit court a hearing was had with the same result. The material questions raised at the hearing were, whether malice was the gist of the action .in which said judgment was rendered within the meaning of section 2, chapter 72 of the Bevised Statutes, and whether that question is to be determined solely by the record of said action. Both of thgse questions were determined in the affirmative, and the court is of the opinion that under the principles established by the Supreme Court in First National Bank of Flora v. Burkett, 101 Ill. 391, and In re Murphy, 109 Id. 31, they were decided correctly.

Affirmed.

Opinion filed July 28, 1886.

Opinion

Per Curiam.

Judge below, Kirk Hawes. Attorneys, for appellants, Mr. H. O. McDaid and Mr. C. A. Knight ; for appellee, Mr. George W. Brandt.