son. Magill was the general agent for the company in Michigan, having the general charge of its agencies and business, and had his office in Cincinnati, Ohio. T. F. Spear was his assistant and resided at Cincinnati. H. H. Heaford was a special agent for the state of Michigan and resided at JackAll agents were authorized to make collections and remittances for the company, and might employ an attorney when specially authorized so to do by the general agent, Mr. Spear. Turner and McClintock had been in business together at East Saginaw, but some time previous to the prosecution complained of their business relations had been dissolved, McClintock continuing to act as the local agent for the company. There still remained due from the plaintiff to the company on the 11th day of January, 1878, a balance of about $50, and judgment was obtained a short time thereafter against the plaintiff and McClintock for such balance, and it was because of the non-payment of this balance when demanded that the criminal prosecution complained of was instituted. McClintock made the complaint upon which the warrant was issued, and the case was prosecuted at his request in behalf of the people by Michael Brennan, a lawyer, who had his office with Wisner & Draper, and who had formerly been their law student, and at that time occasionally received claims from their office to collect. The claim against the plaintiff had been sent to Wisner & Draper for collection by the company, and they had turned it over to Brennan. Brennan, in his correspondence with Turner, in his efforts to collect, had signed the name of Wisner & Draper to his letters, in which a criminal prosecution was alluded to. Turner claimed that the defendant authorized the criminal prosecution against him, and sought to hold it responsible for the acts of its local agents and attorneys at Saginaw, who, he insists, advised and took part in the criminal prosecution; and further claims that if the defendant did not authorize commencement of the prosecution, it subsequently ratified what the local agents did, and the defendant is therefore liable for the alleged illegal act. It is not claimed by the plaintiff that the criminal prosecution was authorized, aided or abetted, or even ratified, by the general office of the company, but by its general and special agents at Cincinnati, and by Heaford, its special agent in this state. Submission for special findings. On the trial, after the testimony in the case was closed, the circuit judge, on request of defendant's counsel, submitted to the jury five requests for specific findings, which requests and findings appear in the record as follows: "1. Was plaintiff prosecuted criminally by any agent of defendant? "Answer. Yes. "2. If you say yes to above, name the agent. "A. Wisner & Draper, Heaford and Magill. "3. If you say yes to No. 1, state who, if any one, acting for defendant, authorized or directed the prosecution. "A. Wisner & Draper, Heaford and Magill. "4. Was the act of the person commencing the prosecution subsequently adopted or ratified by defendant's agents? "A. Yes. "5. If you say yes to the fourth, state what agent so ratified or adopted it. "A. Heaford and Magill."1 (2) The special finding controls the general verdict. Under the law providing for special findings by juries a case for malicious prosecution was tried in Saline county, Kansas. On December 27, 1879, Norton, Wagstaff and another, through mistake of boundary lines, went upon the land of one Schippel and cut and carried away one or more trees standing thereon. The prosecution was commenced, after consulting the county attorney, before a justice of the peace. A few days after the suit was begun the county dismissed it, and on the same day began a new prosecution in the district court against the same parties for the same offense. While this prosecution was still pending in the district court Norton begun his suit for malicious prosecution. The case was tried before the court and a jury, and the jury rendered a general verdict in favor of Norton and against Schippel for $1 exemplary damages, and also made special findings of fact showing the foregoing facts, and also showing that the $1 was for exemplary damages, and that nothing was allowed for actual or compensatory damages. The general verdict reads as follows: "We, the jury impaneled and sworn in this action, do, upon their oaths, find for the plaintiff, and do assess his damages in the sum of one dollar and cents exemplary." Among the spe cial findings are the following: 6. What number of other trees were cut about the same time and place on defendant's land? "Answer. We don't know. "9. At the time Mr. Schippel instituted the prosecution complained of before E. L. Norton, did he believe that the plaintiff, Wright Norton, was guilty of cutting some of his timber, as charged in said complaint, without right or legal excuse? "A. He may have believed so. "11. At the time defendant, Schippel, verified the complaint before E. L. Norton upon which plaintiff and others were arrested, did he have reason to believe that such complaint was true as to the cutting or carrying away of one or more trees on his land? "A. No, except the cottonwood and hackberry stub. "12. Before making and verifying said complaint, did defendant make a statement of the facts of the case, as then known by him, to the county attorney, John G. Spivy? "A. Yes. 64 13. Was such statement substantially full and correct? "A. Yes. 64 15. Did Mr. Schippel, in good faith, go to the county attorney for the purpose of obtaining his advice in the case, and of placing in his control any prosecution that might be had? "A. Not absolutely. 1 Turner v. Phoenix Ins. Co., 55 Mich., 236; 21 N. W. Rep., 327 (1884). "17. Did the county attorney, upon being informed of the facts as then understood by Mr. Schippel, advise Mr. Schippel that John I. Norton, Wright Norton and Alonzo Wagstaff were guilty of a criminal trespass, and liable to such prosecution as was instituted against them? "A. Yes. "20. Upon the statement of the case made by Mr. Schippel to the county attorney, and upon the information the county attorney had of the facts, did the county attorney take control of said prosecution, as to its being commenced, and as to the disposition that was made of it? "A. He did, as attorney. "23. Was the county attorney's action in said prosecution based upon a knowledge of the facts substantially as they existed, and as known to Mr. Schippel at the time? "A. Yes. "28. Did the county attorney dismiss the case before E. L. Norton, intending to immediately prefer the same in the district court? "A. He did, as attorney. "29. Did the county attorney, immediately after the dismissal of said case before Justice Norton and on the same day the case was dismissed, file an information against John I. Norton, Wright Norton and Alonzo Wagstaff for the same offense in the district court? "A. Yes. "30. Was the case upon such information pending in the district court when this action was commenced? "A. Yes. "31. If the jury should find for the plaintiff, state separately the amounts allowed for actual and exemplary damages, and the several items of each? “A. One dollar exemplary damages.” Some of the findings with reference to Schippel's good faith were apparently in conflict with some of those above given. Judgment was rendered upon the verdict and the finding of the jury in favor of Norton and against Schippel for $1 and costs of suit. And to reverse this judgment, Schippel, as plaintiff in error, took the case to the supreme court. Valentine, J., said: "The judgment of the court below will be reversed, and cause remanded, with the order that judgment be rendered on the special findings of the jury in favor of the defendant below, and against the plaintiff below." Schippel v. Norton, 38 Kan., 567; 16 Pac. Rep., 804 (1888). CHAPTER XVL CHARGING THE JURY. § 1. Preliminary discussion-Instructions and requests for instructions. 2. The instructions should be clear, accurate and concise. MALICIOUS PROSECUTION. 3. An oral charge to the jury, in the federal courts. 4. Written instructions-Approved by the supreme court of Illinois. 5. Malice defined. MALICE. 6. Malice may be inferred from want of probable cause. 7. Defendant's instruction-Under a general denial — Burden of proof. 8. Doing an unlawful act to obtain a lawful end. PROBABLE CAUSE. 9. The want of it must appear from the evidence. 10. What is want of probable cause. 11. The burden of proof. 12. An honest belief in plaintiff's guilt. 13. Prosecutor acting in good faith. 14. The true inquiry. 15. Reasonable grounds of suspicion. 16. Good character on the question of probable cause. 17. Malice and want of probable cause must concur. 18. Existence of facts a question for the jury. 19. Facts constituting probable cause. 20. Facts not constituting probable cause. 21. Reasonable inquiry as to facts. 22. Allowance to be made for injury to prosecutor. 23. Possession of stolen property. 26. The doctrine announced by the supreme court of Iowa. 27. The doctrine laid down by Hilliard and Wait. 28. Advice by counsel mistaken in the law. FALSE IMPRISONMENT. 29. False imprisonment defined. 30. What is an arrest. 31. Duress and threats. § 32. What information the defendant must act upon. 33. Estoppel of plaintiff — False representations. 34. Persons assisting officers. 35. Permitting a convicted party to go at large-Arresting him afterwards. 36. Void warrants in mitigation of damages. 37. Arbitrary arrests - Joint liability. 38. Duty of officers making arrests. 39. Trespassers are jointly and severally liable. 40. When not liable as joint trespassers. 41. Who are liable as joint trespassers. 42. Form of verdict when part of defendants guilty. 43. Liability of infants — Ratification. 44. Damages. DAMAGES. 45. Compensatory when exemplary damages are not claimed. 46. Exemplary damages defined. 47. Exemplary damages in false imprisonment. 48. The same in malicious prosecution. 49. The defendant's wealth may be considered. 50. Good faith in mitigation of damages. § 1. Preliminary discussion - Instructions and requests for instructions.-There are few questions of law more difficult of apprehension by the average trial juror than those which govern the trials of actions for malicious prosecutions. This is the experience of every trial lawyer. It seems difficult for them to realize that under our law a person, in fact innocent of the offense for which he has been prosecuted, has no remedy against the prosecutor who has caused his arrest and imprisonment, unless he can show affirmatively that the prosecutor was actuated by malice and without probable cause. All men are more or less at all times the victims of circumstances; and where circumstances combine in such a way as to induce the prosecutor, acting honestly and in good faith, to draw conclusions of guilt, the victim must suffer for the public good. There is perhaps no branch of the law of procedure in which the members of the bar, especially the younger members, feel the need of assistance so much as in the preparation of their instructions in those jurisdictions where it is the practice for the attorneys to prepare them, and the requests for instructions where they are given orally from the bench. It is not the design of the author to enter upon any general |