Mcbean v. Ritchie
| Decision Date | 31 December 1856 |
| Citation | 1856 WL 5422,8 Peck 114,18 Ill. 114 |
| Parties | WILLIAM MCBEANv.WILLIAM W. RITCHIE. |
| Court | Illinois Supreme Court |
18 Ill. 114
1856 WL 5422 (Ill.)
8 Peck (IL) 114
WILLIAM MCBEAN
v.
WILLIAM W. RITCHIE.
Supreme Court of Illinois.
December Term, 1856.
THIS was an action on the case for a malicious prosecution, instituted by Ritchie against McBean, the plaintiff in error, and taken by change of venue from Massac to Pulaski county. Issue was joined upon the plea of general issue.
There was a trial by jury and a verdict for $650 damages, and a judgment upon the verdict. A motion for a new trial was overruled.
The opinion of the court is founded upon an erroneous instruction, which is copied into the opinion.
[18 Ill. 115]
The cause was brought, by consent, from the first to the second grand division.J. LOGAN, J. ALLEN and C. G. SIMONS, for plaintiff in error.
T. G. C. DAVIS, for defendant in error.
SKINNER, J.
This was an action on the case, by Ritchie against McBean, for malicious prosecution of Ritchie for perjury. On the trial the court instructed the jury, on the part of Ritchie, as follows:
“The court instructs the jury, as matter of law, that if you believe, from the evidence, that McBean, defendant, prosecuted plaintiff for perjury maliciously and without probable cause, the verdict should be for plaintiff, Ritchie, and if Ritchie was tried on said charge, and on investigation of the cause he was acquitted, and the prosecution ended, these facts, prima facie, show, in law, that there was no probable cause, and the jury may presume malice from the want of probable cause. Yet the plaintiff is allowed by law to prove express malice; and if there is proof, to your satisfaction, of express malice, you may regard such proof of express malice in aggravation of damages, if you find for the plaintiff.”
The declaration necessarily alleged the prosecution; that it was determined by the acquittal or discharge of Ritchie; and that the same was prosecuted by McBean maliciously and without probable cause; and, to maintain the cause of action alleged, it was incumbent on Ritchie, the plaintiff, to prove each of these material allegations.
The effect of the instruction was to direct the jury to find for the plaintiff, if the defendant prosecuted the plaintiff on the charge alleged, and upon trial thereof was acquitted; and it is based upon the supposition that, from the prosecution and acquittal, the law presumes malice and want of probable cause.
Ritchie had no cause of action against McBean, however malicious and unfounded the prosecution may...
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... ... cause for such prosecutions is a protection against legal liability, no matter by what motive the prosecutor may have been actuated." McBean v. Ritchie, 18 Ill. 114, 116 (1856). We do not dispute that petitioner suffered injury in 1992 and 1993 at the hands of the defendants to his ... ...
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