Feazle v. Simpson
| Decision Date | 31 December 1832 |
| Citation | 2 Ill. 30,1 Scam. 30,1832 WL 2422 |
| Parties | JOHN M. FEAZLE, plaintiff in error,v.BIRD M. SIMPSON and JESSE M. WADE, defendants in error. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
THIS was an action on the case commenced January 16, 1832, for the malicious prosecution of a suit, by attachment, against the defendants in error, by the plaintiff in error, as agent of one John H. Gay. The declaration originally contained but one count, which averred that the plaintiff in error, “as agent of John H. Gay,” on the 16th day of January, 1832, complained maliciously, and without any probable cause for so doing, before the clerk of the Circuit Court of Marion county, that the defendants in error were indebted to said John H. Gay, in the sum of $600, and were about to depart from this State, with the intention of having their effects and personal estate removed without the limits of the same, and thereby obtained a writ of attachment against them, etc., and by virtue of which the sheriff of said county attached sundry articles of personal property of the defendants in error, etc., etc.; and that afterward, to wit, at the following March term of said Court, said attachment was quashed, etc. The plaintiff in error demurred to the declaration, and the demurrer was overruled by the Court.
The defendants in error then amended their declaration by adding another count, like the first, except that the words “as agent of John H. Gay,” were not inserted. To this second count the plaintiff in error pleaded not guilty. The cause was tried at the September term, 1832, of the Marion Circuit Court, before the Hon. Thomas C. Browne and a jury, and judgment rendered against the plaintiff in error for fifty dollars and costs. From this judgment he prosecuted a writ of error to this Court.
On the trial in the Court below, the record of the suit of John H. Gay against the defendants in error, was admitted in evidence, though objected to by the plaintiff in error, who excepted to its admission.
WM. H. BROWN, for the plaintiff in error, contended, that
1st. The action does not lie against Feazle, if it lies at all. Feazle is said to be an agent.
An agent is not in general liable to third persons, for a neglect, non-feasance, or mal-feasance, when acting with the express or implied authority of principal. 1 Chitty, 71-2.
No one can be liable for a tort or trespass as an agent. He is personally responsible.
An action for malicious prosecution can not be supported against an attorney. 1 Chitty, 71-2.
2d. An action does not lie in this case, it being a suit commenced by attachment. The remedy is alone upon the bond. R. L. 1827, 70; R. L. 85; Gale's Stat. 65.
To sustain this action, there must be an arrest. The gist of the action is the unfounded arrest. 2 Chitty, 599, and authorities there cited; 3 Sel. 939.
Suit does not lie where bail is not demanded. 2 Stark. 921.
An action will not lie if there was a cause of action (exception as to holding to bail for a greater sum than due). Bul. N. P. 11, 12; 2 Stark. 910, note.
No action can be supported for malicious suit. 2 Chitty, 599; 1 John. Dig. 16.
If an action will lie in this case, it should have been alleged that defendant knew either that no debt was due, or that plaintiffs were not going to depart. 3 Esp. Rep. 34; Bul. N. P. 12.
3d. I is not alleged that there was not a probable cause of action. This averment is necessary. 2 Chitty, 599.
It is not alleged that the first suit was ever determined. Only said that the process was quashed and dismissed. 2 Chitty, 604, and notes
4th. This action was brought before the first was determined. New action can not be brought until the first is disposed of. Bul. N. P. 12; 1 Saund. 228, note B; 2 Chitty, 604.
The writ was sued out against F. on the 16th January, 1832, and the attachment dismissed March term, 1832.
The Court erred in permitting a record of Gay v. S. and Wade, to be read.
WALTER B. SCATES, for the defendants in error.
Simpson and Wade commenced an action against Feazle in the Circuit Court of Marion county, for maliciously, and without probable...
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