Rosenberg v. Hart

Garnett, P. J. This was an action for malicious prosecution, judgment being given in the Circuit Court for the plaintiff, and the defendants appeal. The court instructed the jury that if they believed from the evidence the defendants, or any of them, were guilty of the arrest and prosecution, and that such arrest was malicious and withoxxt probable cause, then vindictive damages might be given. There are two fatal errors in this instruction. Ho principle of law warrants a recovery against three defendants if only one is found guilty from the evidence. Blackman v. Blom, opinion filed in this court April 3, 1889. The instruction tells the jury that the defendants may be found guilty if the arrest was made maliciously and without probable caxxse. Suppose, however, the prosecution did not terminate in acquittal ? The jury was not informed that an acquittal was one of the conditions of recovery by plaintiff. There was a strong tendency in the evidence to prove that the prosecution came to an end through, a compromise, between the parties. If that was the manner in which the matter was disposed of there can be no recovery, as a compromise is not equivalent to acquittal. Emery v. Ginnan, 24 Ill. App. 65; Fadner v. Filer, opinion filed in this court December 7, 1888. The errors in this instruction are not cured by anything appearing elsewhere in the record. We think the Circuit Court committed no eiTor in allowing the restoration of a part of the bill of exceptions showing that all of the evidence was embraced therein. The judgment is reversed and the cause remanded. Reversed and remanded.