prepared an affidavit charging her with burning the corn, which Calef took to a justice of the peace and obtained a warrant for her arrest. When arrested she went before the justice, waived an examination, and gave bail for her appearance to answer to an indictment, etc. At the next term of the court the case was presented to the grand jury, who ignored the bill and she was discharged. She then brought an action against Calef for malicious prosecution. On the trial the jury returned a verdict for $1,055.55, upon which judgment was entered, and Calef appealed to the supreme court. Chief Justice Scott said: "I am of the opinion defendant made a full and fair statement of all the material facts of the transaction out of which this litigation arose, to the state's attorney, to enable him to advise him as to his duty in the matter, before he commenced the criminal prosecution, and in good faith acted on the advice received from that officer. Under the decisions of this court, this advice was a sufficient warrant for instituting a criminal prosecution. Whether plaintiff was guilty of a criminal act in destroying defendant's property, or whether she was justified in so doing, are questions which need not be discussed in this case." Judgment reversed. Calef v. Thomas, 81 Ill., 478 (1876). § 9. Advice of officers, policemen and detectives. The advice given by policemen, detectives and like officers is properly admitted in evidence on the trial of actions for malicious prosecutions and false imprisonment to show the circumstances under which the prosecution was instituted and to mitigate the damages; but such advice can never be shown as a defense, as would be the advice of a respectable attorney, fairly and honestly obtained, regarding a prosecution claimed to be malicious. The law has never regarded the advice of such officers as being a justification for instituting mistaken criminal proceedings. It is believed that such officers from the very nature of their business become more suspicious than ordinary persons.1 § 10. Effect of the advice of persons who are not lawyers Competent on the question of malice. As one of the grounds of action for malicious prosecution is malice, and any fact tending to disprove it is competent evidence, hence the fact that before the commencement of the proceeding complained of the party sought for and obtained the advice of persons whom he in good faith supposed to be competent to give such advice, while it does not constitute a defense to the action, is certainly competent on the question of malice in mitigation of damages.2 1 Hirsh v. Feeney, 83 Ill., 548 (1876). 2 Murphy v. Larson, 77 Ill., 176 (1875). 4 APPLICATION OF THE RULE. Advice of a person not a lawyer not competent as a bar to the action but may be in mitigation of damages. Victor Larson brought an action for malicious prosecution against Samuel A. Murphy for maliciously and without probable cause procuring his arrest on a charge of larceny. Larson was about to remove some lumber from a farm he had been occupying as tenant of a former owner. Murphy had purchased the farm and claimed the lumber. Murphy discovered Larson in the act of removing the lumber, and a violent altercation took place between them. Murphy immediately went to a neighboring town for legal advice. He applied to one attorney, who informed him that he was retained by Larson, but that there were other attorneys in town, but, as it was claimed, they were not attorneys of record. To one of these Murphy applied and made a full and fair statement of the case, and was advised to have Larson arrested on a charge of larceny, and drew the necessary papers. On the trial the defendant relied upon this advice as a defense. This jury rendered a verdict for $300 and Murphy appealed to the supreme court. Scott, J.: "There can be no question but the defendant consulted the person in the utmost good faith, believing he was an attorney-at-law, and competent to give advice in legal matters; that he made a full and fair statement of all the facts to him in relation to the charge, and relying upon the advice he received he caused the arrest to be made. Had he been a regular attorney licensed under the laws of this state, in good standing, competent to give advice, and had he counseled the arrest of plaintiff on a charge of larceny, after having a full statement of all the facts, however much he may have been mistaken as to the law, still, if defendant was in good faith guided by his counsel, and it appeared that he sought the counsel with an honest purpose to be informed as to the law, such advice would constitute probable cause, and an effectual bar to any action for malicious prosecution; but there must always be the element of good faith, and we have been referred to no case that holds there are any exceptions to the general rule. The counsel selected must be a regularly licensed attorney and counselor, reputable in character, and considered in the community competent to give legal advice on all matters pertaining to the law." "We are unwilling to establish the doctrine that counsel taken of a person not a lawyer, although received and acted upon in good faith, can ever be a justification for commencing a criminal prosecution." Murphy v. Larson, 77 Ill., 176 (1875). Competent on the question of malice.-" As the ground of this action is maiice and want of probable cause, any fact tending to disprove either is competent evidence." . . . "The fact that he obtained counsel of one he supposed was learned in the law and competent to give advice, and was advised by him, upon a disclosure of the facts and circumstances, to commence the criminal prosecution, while it constitutes no defense, was certainly competent evidence on the question of malice. If he acted in good faith, and that was a question for the jury,—it would negative in a high degree the idea of malice, and that fact ought to go in mitigation of exemplary damages." Scott, J., in Murphy v. Larson, 77 Ill., 176 (1875). § 11. Good faith - Independent of legal advice. The law requires that one in instituting a criminal prosecution shall act in good faith, or under an honest belief of the guilt of the party arrested; and this notwithstanding he has taken legal advice.1 II. IN ACTIONS FOR FALSE IMPRISONMENT. § 12. Advice of counsel.- The advice of counsel in actions for false imprisonment, while subject to the same general rules of law governing its introduction in evidence as in actions for malicious prosecution, is a much less important element of defense. In actions for malicious prosecution, as we have seen, the advice of counsel goes to disprove malice, and it may, in effect, become a complete defense to the action. But in actions for false imprisonment its effect is very different. It goes only in mitigation of exemplary damages.2 AN APPLICATION OF THE RULE.— Advice of an inexperienced attorney is sufficient. Thomas sued Mortimer and Harrell for false imprisonment in procuring his arrest for a debt. The trial resulted in a judgment for $1,000, from which the defendants took an appeal. Wyly, J.: "We have no doubt that Thomas, the creditor, merely desired to collect the claim due him by the plaintiff; but the utter want of probable cause for the arrest shown in his petition for arrest is a sufficient ground for inferring malice. He acted, however, under the advice of a young lawyer who instituted the proceedings, whose ignorance of the law, although not justifying the arrest, might to some extent mitigate the damages to which his client should be subjected." Mortimer v. Thomas, 23 La. Ann., 165 (1871). 1 Roy v. Goings, 112 Ill., 656 (1885). 2 Field on Damages, § 682, p. 541 (1876); Eggleston on Damages, 124 (1880); Bohm v. Dunphy, 1 Mont. T., 333 (1871); 1 Sutherland on Damages, 237 (1883); Fox v. Davis, 55 Ga., 248 (1875); Josselyn v. McAllis ter, 22 Mich., 300 (1871); Reuck v. CHAPTER IX. THE END OF THE PROSECUTION. § 1. The end of the prosecution. 2. The subject continued. 3. For prosecuting criminal actions. 4. For prosecuting civil actions. (1) The action prematurely brought. (3) What is not end of the prosecution. 5. The law stated by Cowen, J. 6. The subject discussed. 7. The means by which the end of the prosecution is accomplished. 8. By a nolle prosequi - The term defined. 9. Effect of the entry of a nolle prosequi. 10. When it is a sufficient termination of the proceedings. Illustrations from American cases. (1) A nolle prosequi an end of the proceedings. (2) The same not an end of the proceedings. (3) When a nolle prosequi is not. (4) When it is, etc. (5) Entered without the advice or consent of the defendant. (6) Discharge of magistrate upon entering, etc. (7) Judgment that the defendant go hence thereof acquit. 11. Summary of the law. 12. A better rule. 13. Dismissal of the prosecution. Illustrations from American cases. (1) Dismissal of a criminal prosecution. (2) A dismissal not an end of the prosecution. (3) Abandonment of a civil suit. (4) Same plaintiff failing to appear. 14. By vacation of order of arrest, etc. Illustrations from American cases. Vacation of order for arrest in a civil suit. 15. By discharge on orders of court. Illustrations from American cases. A person recognized must be discharged by order of court. 16. Discharge of magistrate sufficient, when. Illustrations from American cases. (1) Discharge by justice sufficient, though he does not have full jurisdiction. (2) Acquittal before magistrate having no jurisdiction. (4) Discharge on preliminary examination sufficient. (5) Discharge on prosecutor failing to appear. 17. By a discharge on habeas corpus. Illustrations from American cases. (1) When the discharge is not an end. 18. Miscellaneous matters of discharge. (1) Voluntary escape from an officer is not. (2) Obtaining leave not to file an information. 19. Finding an indictment for a different offense. An illustration. Indictment for an offense different from the one charged in the original complaint. 20. Conclusions - End of the prosecution in false imprisonment. 21. The same in actions for malicious prosecution. 22. Distinctions between actions for malicious prosecution and false imprisonment. 23. End of the prosecution - Digest of American cases. § 1. The end of the prosecution.-It is well settled that in order to maintain an action for malicious prosecution the prosecution complained of as being malicious must have been legally terminated prior to the commencement of the action; but just what is a legal termination of the prosecution and sufficient to maintain the action for malicious prosecution does not appear to have been so completely settled. § 2. The end of the prosecution - The subject continued. The general rules of law governing actions for malicious arrests and prosecutions have long been well settled. In the words of Lord Camden: "This is an action for bringing a suit at law, and courts will be cautious how they discourage men from suing. When a party has been maliciously sued and held to bail, malice, and that it was without any probable cause, must be alleged and proved." The new action must not be brought before the first is determined, because till then it cannot appear that the first was unjust.2 1 Goslin v. Wilcock, 2 Wils., 302, 2 Buller's Nisi Prius, 12; Cardival -307; Cardival v. Smith, 109 Mass., v. Smith, 109 Mass., 158 (1872). 158 (1872) |