Mitchinson v. Cross

Citations

• 58 Ill. 366

Syllabus

<p>1. Evidence—construction of act of 1867. Under the act of February 14th, 1867, husband and wife are competent witnesses for or against each other, only in the cases mentioned in the exceptions to section five of that act.</p> <p>2. So, in a suit for malicious prosecution, wherein the plaintiff sought to prove by bis wife the want of probable cause for the prosecution complained of, by showing that the alleged slanderous words upon which it was based, and which imputed to the defendant adulterous intercourse with the witness before her marriage with the plaintiff, were true, it was held, she was an incompetent witness.</p> <p>3. Malicious fbosecution, The gist of the action for malicious prosecution is, that the prosecutor acted without probable cause. If there is no malice, or if there is probable cause, the action will not lie. Malice, without want of probable cause, will not support the action; both must concur; though malice may be inferred from want of probable cause.</p> <p>4. Same—degree of proof required to show want of probable cause. The want of the element of probable cause is the main ground of the action, and it must be clearly shown—slight evidence will not suffice. The absence of probable cause can not be inferred from malice.</p> <p>5. Jury—must determine questions of fact. In such an action it is error for the court to assume, in an instruction, the abandonment of the alleged malicious prosecution, that being a question of fact to be determined by the jury.</p> <p>6. Evidence—admissibility of in action for malicious prosecution, to show want of probable cause. In an action for malicious prosecution to recover for damages to the plaintiff by reason of his arrest under a capias ad respondendum sued out in an action on the case brought by the defendant agai..st the plaintiff for slanderous words alleged to have been uttered and spoken by the latter, imputing to the former adulterous intercourse with a certain woman, the plaintiff sought to prove the