Davie v. Wisher
| Decision Date | 30 June 1874 |
| Citation | 72 Ill. 262,1874 WL 8801 |
| Parties | DANIEL S. DAVIEv.THOMAS N. WISHER. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Marion county; the Hon. SILAS L. BRYAN, Judge, presiding.
Mr. D. C. JONES, and Mr. W. W. WILLARD, for the appellant.
Mr. B. B. SMITH, for the appellee.
This was an action on the case, brought by Thomas Wisher against Daniel S. Davie. The ground of the action was, that Davie had maliciously, and without probable cause, prosecuted Wisher before a justice of the peace, for forgery. The cause was tried before a jury in the circuit court of Marion county, and a verdict rendered in favor of appellee, for $500. A motion for a new trial was overruled by the court, and judgment rendered upon the verdict.
Davie brings the cause here by appeal, and assigns for error:
First--The court erred in overruling a motion for a new trial, and rendering judgment upon the verdict.
Second--Improper evidence was admitted, on the trial, for appellee.
Third--The court erred in giving instructions for appellee, and in modifying appellant's 1st and 4th instructions.
As to the instructions given for appellee, we have given them a careful consideration, and fail to find any substantial objection to them, and as none has been pointed out in the argument made by appellant's counsel, we conclude that part of the error assigned has been abandoned.
The first instruction of appellant read as follows:
“If the jury believe, from the evidence, that the defendant had given to plaintiff a bond for the conveyance of land, which was to be void upon the failure of plaintiff to comply with certain conditions therein named, and those conditions were not complied with by plaintiff, and that therefore the bond had become forfeited and void, and had been delivered up to defendant by plaintiff or his agent, and that, previous to such delivery, plaintiff had copied said bond, or written one of similar import, signing the defendant's name thereto, or caused the same to be done, with intent to assert rights under said bond, to the damage or prejudice of the rights of defendant--such conduct on the part of plaintiff was sufficient to give the defendant reasonable and probable cause to procure the arrest of the plaintiff on a charge of forgery, and you should find for defendant.”
This the court modified by striking out all after the word “defendant,” in the eleventh line, and, in lieu thereof, inserting the following: “Such conduct on the part of the plaintiff may be considered by you in passing on the question whether defendant had reasonable and probable cause to procure the arrest of the plaintiff on the charge of forgery.”
The modification of the instruction by the court was correct.
We are not prepared to say the facts stated in the instruction, as drawn, would constitute forgery, or would be a justification for a man, reasonably cautious, to institute a criminal prosecution for that crime. They were, however, competent to go to the jury as declared by the court in the modification of the instruction.
The 4th instruction which appellant requested the court to give to the jury, road as follows:
“If the jury believe, from the evidence, that, previous to making said charge, defendant, being doubtful of his legal rights, had consulted legal counsel in relation thereto, (withholding no material facts from his counsel,) and made the charge pursuant to the advice of his attorney, and without malice, then such advice is sufficient probable cause for making the charge, and he is not liable to this action, although his counsel may have mistaken the law, and if such facts be proven, you must find for the defendant.”
This the court modified by striking out the words in the sixth line, “then such advice is sufficient probable cause,” and inserting, “then such advice may be considered by you as sufficient probable cause.”
The modification of the instruction did not materially change its original meaning, but, conceding that it did, appellant could not justly complain, as the instruction, as modified and given, was more favorable to him than he had a right to ask or expect.
In order to enable a party to base a defense upon the advice of counsel given, he should, in perfect good faith, obtain the counsel and advice of a competent and reliable attorney. Neither of these facts was required by the instruction, as the law required. Ross v. Innis, 26 Ill. 259; Ames v. Snider, 69 Ill. 376. The second point relied upon by appellant, that improper evidence was admitted, is not well taken. The evidence admitted, to which exception was taken, was, appellee was asked to state his motive or intention in taking a copy of the land contract. This evidence could do no possible injury to appellant, and while the motive that actuated appellee was not a fact directly in issue on the trial, yet it was a circumstance in connection with the other facts in the case that was proper to go to the jury.
This brings us to the consideration of the other question relied upon, that the court erred in overruling the motion for a new trial.
This point involves the sufficiency of the evidence to sustain the verdict.
The facts, as shown by the record before us, are briefly these: Appellant had sold appellee a tract of land in Marion county, and gave him a bond for a deed. Time was of the essence of the contract, and a...
To continue reading
Request your trial
-
Taylor v. Rice
... ... to warrant a cautious and reasonable man in the belief that ... the person accused is guilty of the crime charged. Davie ... v. Wisher, 71 Ill. 262. 'The question of what ... constitutes probable cause,' say the supreme court of New ... York, in Fagnan v. Knox, 66 ... ...
-
Keep v. Griggs
...was upon appellee to establish by a clear preponderance of evidence that appellants acted with malice and without probable cause: Davie v. Wisher, 72 Ill. 262; Ames v. Snider, 69 Ill. 376; Brown v. Smith, 83 Ill. 291; Thaule v. Kiekler, 84 N. Y. 429. As to probable cause: Harpham v. Whitney......
-
Foster v. Pitts
... ... in themselves to warrant a cautious person in the belief that ... there were grounds for the attachment. Davie v ... Wisher, 72 Ill. 262; Barrett v ... Spaids, 70 Ill. 408; Munns v. De ... Nemours, 17 F. Cas. 993; and other authorities cited in ... ...
-
Comisky v. Breen
...a want of probable cause: Ames v. Snider, 69 Ill. 376; Palmer v. Richardson, 70 Ill. 544; Ross v. Inness, 35 Ill. 488; Davis v. Wisher, 72 Ill. 262. There is no presumption of malice: Anderson v. Friend, 71 Ill. 475; Wagner v. Aultman, 2 Bradwell, 147; Israel v. Brooks, 23 Ill. 575; Hurd v.......