{ "id": 5280706, "name": "Edwin Stanley Masterson, by his next friend, v. William C. Furman", "name_abbreviation": "Masterson v. Furman", "decision_date": "1900-05-10", "docket_number": "", "first_page": "291", "last_page": "293", "citations": [ { "type": "official", "cite": "89 Ill. App. 291" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "9 Wend. 319", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2011132 ], "opinion_index": -1, "case_paths": [ "/wend/9/0319-01" ] }, { "cite": "29 Wis. 586", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8708374 ], "opinion_index": -1, "case_paths": [ "/wis/29/0586-01" ] }, { "cite": "4 Wend. 555", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2005477 ], "opinion_index": -1, "case_paths": [ "/wend/4/0555-01" ] }, { "cite": "35 Ind. 285", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1461946 ], "opinion_index": -1, "case_paths": [ "/ind/35/0285-01" ] }, { "cite": "32 Ark. 605", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1877137 ], "opinion_index": -1, "case_paths": [ "/ark/32/0605-01" ] }, { "cite": "84 Ill. 318", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "101 Ill. 394", "category": "reporters:state", "reporter": "Ill.", "weight": 2, "opinion_index": -1 }, { "cite": "122 Mass. 19", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2134638 ], "opinion_index": -1, "case_paths": [ "/mass/122/0019-01" ] }, { "cite": "109 Ill. 33", "category": "reporters:state", "reporter": "Ill.", "weight": 2, "opinion_index": -1 }, { "cite": "132 Ill. 327", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5421490 ], "opinion_index": -1, "case_paths": [ "/ill/132/0327-01" ] }, { "cite": "118 Ill. 551", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5380875 ], "opinion_index": 0, "case_paths": [ "/ill/118/0551-01" ] }, { "cite": "109 Ill. 31", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2853608 ], "opinion_index": 0, "case_paths": [ "/ill/109/0031-01" ] }, { "cite": "20 Ill. App. 401", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4904806 ], "opinion_index": 0, "case_paths": [ "/ill-app/20/0401-01" ] }, { "cite": "82 Ill. App. 228", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5254074 ], "opinion_index": 0, "case_paths": [ "/ill-app/82/0228-01" ] } ], "analysis": { "cardinality": 289, "char_count": 4449, "ocr_confidence": 0.55, "pagerank": { "raw": 2.0127535544705928e-07, "percentile": 0.7444422435439286 }, "sha256": "16d00ba1dc0905bfcdd334ca95f1481a4fe5cc5888248a3ca67a395c1eaa2e77", "simhash": "1:1bc2f1a3d83eca97", "word_count": 799 }, "last_updated": "2023-07-14T20:30:54.280538+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Edwin Stanley Masterson, by his next friend, v. William C. Furman." ], "opinions": [ { "text": "Mr. Presiding Justice Sears\ndelivered the opinion of the court.\nThis is an appeal by the judgment creditor from an order of the County Court discharging appellee from custody under the provisions of section 2 of the Insolvent Debtors Act.\nThe only controverted question presented is as to whether malice was of the gist of the action in which appellant recovered the judgment upon which appellee was held.\nThe action was in form of trespass vi et armis, and the one count of which it consists alleges, in effect, trespass by an assault and battery.\nIt is contended by counsel' that in determining whether malice was of the gist of the action, we must look to the record only. This contention is sound. Beckman v. Menge, 82 Ill. App. 228.\nAnd it might be said further, that in the present instance we have only to look to the pleadings. If there were several counts in the declaration, some alleging matters which made malice of the gist of the action, and others seeking a recovery upon different ground, it might be proper to go beyond the pleadings to ascertain upon what count the recovery was had. Mahler v. Sinsheimer, 20 Ill. App. 401.\nBut here there is but one count, and that count charges a trespass by assault and battery. The question presented is simply whether malice is of the gist of such action. We regard the question as settled by the decisions. In re Murphy, 109 Ill. 31, and In re Mullir, 118 Ill. 551.\nIt would be useless to follow counsel in their discussion of the proposition that in a simple action of trespass vi et armis, malice is not an element essential to recovery, and hence not of the gist of the action. It may be conceded that the proposition is sound. Nevertheless it is held in the cases cited that in an action of trespass for an assault and battery, malice is of the gist of the action within the meaning of the provisions of our Insolvency Act. This precludes any possible question as to the case now presented. The debtor, appellee, should not have been discharged.\nThe judgment is reversed and the cause remanded.", "type": "majority", "author": "Mr. Presiding Justice Sears" } ], "attorneys": [ "Masterson & Haft, attorneys for appellant.", "John H. Bradley, attorney for appellee," ], "corrections": "", "head_matter": "Edwin Stanley Masterson, by his next friend, v. William C. Furman.\n1. Malice\u2014When the Gist of the Action.\u2014In determining whether malice is the gist of the action the court must look to the record only.\n2. Same\u2014Where There Are Different Counts in the Declaration.\u2014 Where there are several counts in the declaration, some alleging matters which make malice the gist of the action and others seeking upon different grounds, it may be proper to go beyond the pleadings to ascertain upon what count the recovery was had.\n3. Same\u2014Where There is hut One Count in the Declaration.\u2014Where there is but one count in the declaration and that count charges a trespass by assault and battery, malice is the gist of the action within the meaning of the provisions of the insolvency act.\nTrespass, m et armis. Appeal from the County Court of Cook County; the Hon. Orrin N. Carter, Judge, presiding. Heard in this court at the October term, 1899.\nReversed and remanded.\nOpinion filed May 10, 1900.\nRehearing denied.\nMasterson & Haft, attorneys for appellant.\nIf malice was the gist of the Circuit Court action, it was error for the County Court to discharge appellee; otherwise the action of the County Court was correct.\nThe gist is the ground or foundation of a suit, and without which it would not be maintainable. Kitson v. Farwell, 132 Ill. 327.\nThe gist of this action was an assault and battery, in the doing bf which malice is always to be inferred. In re Murphy, 109 Ill. 33.\nIf the wrong or injury was done intentionally, the law brands it as a malicious act. In re Murphy, 109 Ill. 33; Commonwealth v. Goodwin, 122 Mass. 19.\nJohn H. Bradley, attorney for appellee,\ncontended that a defendant in a civil action wherein malice is not the gist of the action, can not be imprisoned under process to collect the judgment. Insolvency Act, Sec. 2.\nThe gist of the action is the foundation of, the action without which it can not be maintained. Bank v. Burkett, 101 Ill. 394.\nThe action was for false imprisonment. Puterbaugh, 570; 2 Chit. Pl., 857.\nIn the action for false imprisonment malice is not the gist of the action. Johnson v. Von Kettler, 84 Ill. 318; Bank v. Burkett, 101 Ill. 394; Bishop on Non-contract Law, 212; Akin v. Newell, 32 Ark. 605; Colter v. Lower, 35 Ind. 285; Scott v. Ely, 4 Wend. 555; Scheer v. Keown, 29 Wis. 586; Gurnsay v. Lovell, 9 Wend. 319; 3 Suth. on Dam., p. 732 and 733." }, "file_name": "0291-01", "first_page_order": 313, "last_page_order": 315 }