Dally v. Young

• Decision Date: 30 November 1878
• Citation: 3 Ill.App. 39,3 Bradw. 39
• Parties: CHARLES M. DALLY ET AL.v.ELBERT S. YOUNG.
• Court: United States Appellate Court of Illinois

3 Ill.App. 39

3 Bradw. 39

CHARLES M. DALLY ET AL.

v.ELBERT S. YOUNG.

Appellate Court of Illinois, Third District.

November Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McLean county; the Hon. OWEN T. REEVES, Judge, presiding.

Messrs. BLOOMFIELD & HUGHES, for appellants; that there must be malice and want of probable cause, to entitle a party to recover in actions for malicious prosecution, cited Anderson v. Friend, 85 Ill. 135; Leidig v. Rawson, 1 Scam. 272; Jacks v. Stimpson, 13 Ill. 702; McBean v. Ritchie, 18 Ill. 114; Bourne v. Stout, 62 Ill. 261.

Acquittal of accused does not imply want of probable cause: McBean v. Ritchie, 18 Ill. 114; Israel v. Brooks, 23 Ill. 575; Thorpe v. Balliett, 25 Ill. 339; Anderson v. Friend, 85 Ill. 135.

If the prosecution in controversy is not shown to have been tried on its merits, actual malice must be shown in a proceeding for malicious prosecution: Hurd v. Shaw, 20 Ill. 354; Ross v. Innis, 26 Ill. 259; Wicker v. Hotchkiss, 62 Ill. 107; Ames v. Snider, 69 Ill. 376; Anderson v. Friend, 71 Ill. 479; Anderson v. Friend, 85 Ill. 135.

If the prosecutor acts under the advice of a respectable attorney, given after full and fair presentment of all the facts, he will be protected: Anderson v. Friend, 85 Ill. 135.

Probable cause is a reasonable ground for suspicion, sufficiently strong to warrant a cautious man in the belief of the guilt of the person accused: Davie v. Wisher, 72 Ill. 262.

A judgment must be against all the defendants or none: Earp v. Lee et al. 71 Ill. 193; Jansen et al. v. Varnum et al. 11 Chicago Legal News, 59.

Messrs. ROWELL & HAMILTON, for appellees; that the witness was allowed to give the whole of his statement to counsel, and it was not error to refuse to allow him to be led by direct questions, cited Whitefield v. Westbrook, 40 Miss. 311.

The prosecution of a person criminally with any other motive than that of bringing him to justice, is a malicious prosecution: Krug v. Ward, 77 Ill. 603.

The term malice in this action is to be considered as denoting that the party is actuated by improper and indirect motives: Harphan et al. v. Whitney, 77 Ill. 32.

Advice of counsel must be sought in good faith, and a full statement of all the facts must be made: Murphy v. Larson, 77 Ill. 172; Ross v. Innis, 26 Ill. 259; Kimmel et al. v. Henry, 64 Ill. 505.

PER CURIAM.

This was a suit brought by appellee against appellants, Charles M. Dally, E. Lathrop and the Remington Sewing Machine Company, in case, for a malicious prosecution.

The declaration avers that on the 9th day of January, 1876, the defendants, Charles M. Dally acting for himself and on behalf and at the instigation of the defendants E. Lathrop and Remington Sewing Machine Company, appeared before a justice of the peace and falsely, maliciously, and without any reasonable and probable cause charged the plaintiff with having in his possession $1,000, in promissory notes, drawn in favor of the Remington Sewing Machine Company, and $90 in money of the goods and chattels of said company, and that he had embezzled the same.

A verdict and judgment were rendered against all the defendants below for $3,000 and the case is brought here and numerous errors assigned, but as this case will be submitted to a jury again, we do not feel called upon to discuss questions involving a consideration of the evidence. We have examined the record carefully, but find no evidence in it showing or tending to show that defendant Lathrop either aided, abetted, advised or consented to the...