Barrett v. Spaids

Citations

• 70 Ill. 408

Syllabus

<p>1. Malicious prosecution—of the neeessary elements. The one most important element is, want of probable cause. Malice is unimportant, if there be probable cause. Malice and want of probable cause must both be present. The gist of the action is, that the prosecutor, or party suing out the writ, acted maliciously, and without probable cause. If there is no malice, or if there be, and there was probable cause, the action will not lie.</p> <p>2. Probable cause—what constitute§. A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged, constitutes probable cause.</p> <p>3. Where the plaintiff had been, for several years prior to January, 1869, engaged in an extensive mercantile business, and had received large shipments of goods during the latter part of December, 1868, and up to January 2d, 1869, through the defendants, as common carriers, on which he failed to pay the freight, and had received, through the hands of the defendants, as common carriers, packages containing very considerable sums of money, being the returns from goods shipped by him to his customers, and had given checks to defendants for freight at several different times, all of which were dishonored at the bank on which they were drawn, for the reason that he had no funds there to pay them; and, on the second or third day of January, when the defendants demanded payment of their bills for freight, told them he had no money, and that since the first day of January he had been doing business as agent: Held, that these facts constitute probable cause for swearing that the plaintiff had, within two years, fraudulently conveyed or assigned his property and effects, so as to hinder and delay his creditors, and to cause an attachment on that ground to be issued against his property.</p> <p>4. Same—acting upon, advice of counsel. In an action for malicious prosecution in resp