¶1delivered the opinion of the Court.
¶2This was a proceeding arising under a petition by an insolvent debtor for leave to schedule, and that he be discharged from imprisonment, his allegation being that malice was not the gist of the action upon the judgment under which he had been imprisoned.
¶3When the hearing in the County Court was had upon such petition, appellant offered no evidence tending to show that malice was not the gist of the action which had resulted in the judgment against him.
¶4He rested his case entirely on a memorandum in the docket of the justice of the peace who rendered the judgment, which memorandum was merely the ivord “ assumpsit ” placed opposite the title of the cause.
¶5From this memorandum it may perhaps be said to fairly appear that the justice of the.peace at some time during the trial called the action one of assumpsit. A suit before a justice of the peace is not such action as he may see fit to call it; but there being no written pleadings, it is such as the evidence makes it. If the evidence were entirely concerning an alleged unlawful detention by the defendant of personal property, the possession of which the plaintiff sought to recover, calling such action debt or assumpsit, or writing such memorandum in the justice’s docket would not make it other than a suit of replevin. Block v. Blum, 35 Ill. App. 643; Steele v. Hill, 35 Ill. App. 211; Swingley v. Haynes, 22 Ill. 214.
¶6There is the authority of a great man, Abraham Lincoln, that calling a calf’s tail a leg does not make it a leg.
¶7In proceedings for discharge under the insolvent debtor’s act the burden is upon the petitioner. Mahler et al. v. Sinsheimer, 20 Ill. App. 401.
¶8The transcript of the justice showed that the jury returned the following as their verdict:
“We, the jury, find the defendants guilty of wrongfully and unlawfully converting to their own use the property of the plaintiffs, with the intent to injure and defraud the plaintiffs to the damage of the plaintiffs, of the sum of eighty-three dollars and seventy-three cents.”
¶9Whereupon the court rendered judgment against the defendants, a “ judgment in trover.”
¶10The verdict of the jury was equivalent to a finding by it that malice was the gist of the action. First Nat. Bk. of Flora v. Burkett, 101 Ill. 392; In re Murphy, 109 Ill. 31; In re Mattin, John Mullin et al., 20 Ill. App. 654.
¶11Appellant having failed to show that malice was not the gist of the action against him his petition was properly denied.
¶12The judgment of the Circuit Court is affirmed.