The opinion
Thompson and Dunn, JJ.,
dissenting:
The question in this case is whether malice is the gist of the action of trespass on the case in which the writ on which plaintiff in error was imprisoned was issued. The term “malice,” as used in the Insolvent Debtors act, implies that the guilty party was actuated by improper or dishonest motives, and requires the intentional perpetration of an injury or wrong on another. Such malice is the gist of an action only when it is an essential element of it. If the action can be maintained without alleging or proving malice, then malice is not the gist of the action. (Jernberg v. Mix, 199 Ill. 254 ; Kitson v. Farwell, 132 id. 327 ; First Nat. Bank v. Burkett, 101 id. 391 .) In order to sustain an order denying the release of the prisoner, malice must be the gist of the action which was, in fact, brought against him, and not the gist of an action which might have been, but which was not, carved out of the original transaction. Kellar, Ettinger & Fink v. Norton, 228 Ill. 356 .
Under the assignment, the corporation of which plaintiff in error was active manager agreed to act as agent for defendants in error in the collection of the accounts assigned and to turn over to defendants in error the specific “evidences of payment” received by it. When these accounts were paid the receipt of the money by plaintiff in error constituted a bailment. (Burns v. State, 145 Wis. 373 , 128 N. W. 987 ; Smith v. Nashua and Lowell Railroad, 27 N. H. 86, 59 Am. Dec. 364 .) As bailee he became obligated to deliver the specific money received to defendants in error, as distinguished from a duty to account as agent. (Salem Light and Traction Co. v. Anson, 41 Ore. 562 , 69 Pac. 675 ; Loomis v. Stave, 72 Ill. 623 ; Royce, Allen & Co. v. Oakes, 20 R. I. 418, 39 L. R. A. 845.) When plaintiff in error failed, on demand, to deliver the money held by him he was guilty of a conversion. (Knight v. Seney, 290 Ill. 11 .) Since the duty to deliver the payment in specie, for the breach of which the action in case was brought, is implied by law by reason of the relations of the parties, notwithstanding such relations arose out of the assignment, case is an appropriate remedy. (Nevin v. Pullman Palace Car Co. 106 Ill. 222 .) In pleading the conversion it is not necessary to set out the particular means by which the conversion was accomplished but a general allegation of conversion is sufficient. The gist of the action in case brought by defendants in error against plaintiff in error is the conversion of the funds. A wrongful intent is not an essential element of the conversion. (Laverty v. Snethen, 68 N. Y. 522 , 23 Am. Rep. 184 ; Boldewahn v. Schmidt, 89 Wis. 444 , 62 N. W. 177 .) It being unnecessary to allege or prove the intent attending the conversion in order to recover, the characterization of the conversion in the declaration as fraudulent did not change the action to one where malice is the gist.
It follows that malice is not the gist of the action in which judgment was rendered against plaintiff in error, and that the county court erred in refusing to order his discharge.