Dally v. Young

3 Ill. App. 39

• Court: Appellate Court of Illinois
• Decided: November 15, 1878
• Status: Published

Opinion

Per Curiam.

This was a suit brought by appellee against appellants, Charles M. Dally, E. Lathrop and the Remington Sewing Machine Company, in case, for a malicious prosecution.

The declaration avers that on the 9th day of January, 1876, the defendants, Charles M. Dally acting for himself and on behalf and at the instigation of the defendants E. Lathrop and Remington Sewing Machine- Company, appeared before a justice of the peace and' falsely, maliciously, and without any reasonable and probable cause charged the plaintiff with having in his possession $1,000, in promissory notes, drawn in favor of the Remington Sewing- Machine Company, and $90 in money of the goods and chattels of said company, and that he had embezzled the same.

A verdict and judgment were rendered against all the defendants below for $3,000 and the case is brought here and pumerons errors assigned, but as this case will be submitted to a jury again, we do not feel called upon to discuss questions involving a consideration of the evidence. We have examined the record carefully, but find no evidence in it showing or tending to show that defendant Lathrop either aided, abetted, advised or consented to the prosecution of appellee, or that he ever had any knowledge of such prosecution until after he was discharged from arrest and the prosecution dismissed.

The judgment at law must be a unit, and being erroneous as to one, must be reversed as to all. Jansen et al. v. Varnum, 11 Chicago Legal News, 59.

It is true, Lathrop was the general agent of the company at Chicago, and that Dally was a sub-agent at Bloomington, and subject to his jurisdiction in all matters pertaining to the business of the company, but this circumstance of itself woirld not make him liable for a criminal prosecution commenced by Dally without his knowledge or consent.

Where an agent institutes a malicious prosecution of his own head, .and without the instigation or direction of his principal, the latter will not be liable for the same, unless he adopts and continues the same with knowledge of all the circumstances. 2 Addison on Torts, p. 758; Burnop v. Albert, Taney’s C. C. Dec. 244; Stevens v. Midland Co. R. W. Co. 10 E. C. L. R. 351. Judgment reversed and cause remanded.

Reversed and remanded.