Gilbert v. Emmons

Citations

• 42 Ill. 143

Syllabus

<p>1. Allegations and proof — m&rment of an acquittal hy a grand jury, in a declaration for a malicious prosecution — what will support it. In a declaration for malicious prosecution of the plaintiff by the defendant, on a charge of larceny, it was averred that the grand jury “ adjudged and determined that the said plaintiff was not guilty of the said supposed offense, and refused and did not find or present a bill of indictment against the said plaintiff for the said supposed offense or for any offense whatever, and then and there caused the said plaintiff to be discharged out of custody, fully accquitted and discharged of the said supposed offense.” The proof that the grand jury ignored the bill, was held to support this averment.</p> <p>2. Malicious prosecution—whether a trial by jury is necessary, before am, action will lie. It is not essential, in order that a party may maintain an action for malicious prosecution, that there should be a trial by jury and a verdict of acquittal rendered upon the charge preferred against him.</p> <p>8. Former decisions. The case of Hurd v. Shaw, 20 Ill. 856, so far as a contrary rule is intimated therein, is overruled.</p> <p>4. Malicious prosecution—in an action against two, what concurrence will render both liable. One person cannot be made liable in damages because he knows that another person is about to commit an unlawful act, even though he fails to protest against it, and therefore, in the ordinary use of language, may be said to have consented to it.</p> <p>5. So, where one of two partners was about to commence a prosecution against a party, upon a charge of having stolen the money of the firm, the mere “ knowledge and consent ” of the other partner that he should have the person accused arrested, would not render the partner so knowing and consenting, liable to an action for malicious prosecution, at the suit of the person arrested.</p> <p>6. Something further would be necessary in order to make him liable. It would be