PETERS, Sheriff, v. UNITED STATES ex rel. KELLEY, 177 F. 885

BAKER, Circuit Judge (after stating the facts as above). If the District Court and this court were at liberty to inquire de novo into the question whether relatrix inflicted a willful and malicious injury upon the person of her 11 year old pupil, a fair answer could not be given from this record. Relatrix and her witnesses gave their present version of her side of the story (some of them admitting on cross-examination that they were adding matters not testified to by them in the state court); but the boy and his witnesses did not attend the hearing in the District Court.

We could not properly pass upon the truth of the original charge de novo, without considering the testimony in support of the charge. Relatrix’s direct adversary in the District Court was not the boy, but the sheriff; and he evidently thought that he was doing his full duty as a disinterested officer of the law when in response to the demand that he show cause why he detained relatrix in custody he produced the writ he held and the record of the proceedings and Judgment on which the writ was issued.

And so he was; for a writ of habeas corpus cannot lawfully be used as a means of bringing the original parties into court to relitigate their original controversy — it cannot even be used lawfully to review and revise alleged errors of law or fact in the original litigation. “No court may properly release a prisoner under conviction and sentence of another court, unless for want of jurisdiction of the cause or person, or for some other matter rendering its proceedings void.

Where a court had jurisdiction, mere errors which have been committed in the course of the proceedings cannot be corrected upon a writ of habeas corpus, which may not in this manner usurp tlie functions of a writ of error.” Kaizo v. Henry, 211 U. S. 146, 29 Sup. Ct. 41, 53 L. Ed. 125, and cases there cited. Also Ex parte Watkins, 3 Pet. 193, 7 L. Ed. 650, and In re Lennon, 166 U. S. 548, 17 Sup. Ct. 658, 41 L. Ed. 1110. The character of the “liability,” as that word is used in amended section 17 (2) of the bankruptcy act, is not changed by the fact that the liability was reduced to judgment. Tinker v.

Colwell, 193 U. S. 473, 24 Sup. Ct. 505, 48 L. Ed. 754; Boynton v. Ball, 121 U. S. 457, 466, 7 Sup. Ct. 981, 30 L. Ed. 985; Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 292, 8 Sup. Ct. 1370, 32 L. Ed. 239.

The question, therefore, is whether the judgment of the state court is conclusive evidence of a liability of relatrix for a willful and malicious injury to the person of the judgment plaintiff. “Willful and malicious injury,” in the bankruptcy act and everywhere in the law, does not necessarily involve hatred or ill will as a state of mind, but arises from “a wrongful act, done intentionally, without just cause or excuse.” “In order to come within that meaning as a judgment for a willful and malicious injury to person or property, it is not necessary that the cause of action be based upon special malice, so' that without it the action could not he maintained.” Tinker v.

Colwell, 193 U. S. 473, 485, 24 Sup. Ct. 505, 508, 48 L. Ed. 754. In the second and third counts of the declaration the charge was explicitly .made that relatrix inflicted the injury willfully and maliciously; that she intentionally overstepped her authority as teacher, and administered an excessive punishment without just cause or excuse. By her pleas of denial, of authority as teacher, and of self-defense, she accepted the gage; and the jury found her guilty.

What the evidence was, what the instructions were, we do not know; nor, if the second and third were the only counts, could we inquire, for unquestionably a judgment thereon would be conclusive that in fact and in law the relatrix had inflicted a willful and malicious injury rtpon .the.person of the judgment plaintiff. Relatrix contends that under the first count, for trespass vi et annis, a recovery could be had without proof of a willful and malicious injury, and thereupon insists that it was not erroneous for the District Court to inquire de novo into the real nature of the alleged assault.

If tire assumption as to the character of the first count were warranted, the predicated result would not follow. The most that would be authorized (if anything) would be to show that at the trial in the state court no evidence was introduced in support of the second and third counts, and that the evidence which was introduced under the first count did not tend to prove a willful and malicious injury.

This, not •on the theory of., disputing the record or questioning the adjudication, but on the theory' that the record was ambiguous, and that therefore evidence dehors the record was proper and necessary to disclose what in truth had been adjudicated. The assumption,’ however, is unwarranted, for by the law of Illinois (as generally elsewhere) a judgment for damages • under a count for trespass vi et armis cannot lawfully be rendered except upon proof of a willful and malicious injury. Jernberg v. Mix, 199 Ill. 254, 65 N. E. 242; Gilmore v. Fuller, 198 Ill. 143, 65 N. E. 84, 60 L. R. A. 286; Forsyth v.

Vehmeyer, 176 Ill. 365, 52 N. E. 55; In re Mullen, 118 Ill. 551, 9 N. E. 208; In re Murphy, 109 Ill. 31; Paxton v. Boyer, 67 Ill. 133, 16 Am. Rep. 615; Razor v. Kinsey, 55 Ill. App. 605; Tinker v. Colwell, 193 U. S. 473, 24 Sup. Ct. 505, 48 L. Ed. 754; McChristal v. Clisbee, 190 Mass. 120, 76 N. E. 511, 3 L. R. A. (N. S.) 702. And the full faith and credit to which the judgment of the state court is entitled would not be rendered if a doubt were entertained that the jury under proper instructions based -their verdict on sufficient evidence.

The order appealed from is reversed, and the cause is remanded to the District Court with the direction to dismiss the petition.