202 Ill. 551 | Ill. | 1903
delivered the opinion of the court:
It is first contended that the court erred in declining" to take the case from the jury. The evidence fairly tended to show want of probable cause for the arrest, and malice, and the court did not err in submitting the case to the jury.
It is next contended that the appellee having averred in the declaration that the appellant conspired, etc., with G. Lasher, Francis W. Savage and John Johnson, he must recover judgment against two or more of the defendants or none. The unlawful acts done in pursuance of a conspiracy, and not the fact of the conspiracy, are the gist-of the cause of action in an -action on the case for malicious prosecution. (Bonney v. King, 201 Ill. 47; Hamilton v. Smith, 39 Mich. 222.) In the Hamilton case the law governing a charge of conspiracy in a declaration like this is well stated by Graves, J., as follows (p. 230): “In very ancient times all actions for malicious prosecution were laid, where two or more defendants were involved, with a charge of conspiracy, and this practice is supposed to have been adopted from analogy to the statutory form of the old writ of conspiracy. But the early practice has been long obsolete: The action is not for conspiracy, but is simply an action on the case. Thé gist of it is not the conspiracy, but the damage to the plaintiff by the wrongful acts of the defendants; and this is equally actionable whether it be the result of conspiracy or not. As matter of pleading the charge of conspiracy is mere surplusage and only entitled to be looked at as a matter of aggravation, and the insertion of the averment of it does not change the nature of the action at all. It is still an action on the case and to be tried and disposed of accordingly. (2 Selw. N. P. 1062; 2 Saund. Pl. & Ev. 320, note; Savile v. Roberts, 1 Ld. Raym. 374; Parker v. Huntington, 2 Gray, 124; Tappan v. Powers, 2 Hall, (N. Y.) 277; Herron v. Hughes, 25 Cal. 555; Hinchman v. Richie, Brightly, (Pa.) 143; Page v. Parker, 40 N. H. 66; 2 Chitty’s Pl. — 16th ed.— 498.) That in point of fact there was a conspiracy would be competent to be proved without any charge of it, and satisfactory evidence of it would be ground for letting in the acts and doings of each against both.”
In actions for malicious prosecutions, as in most other actions of tort, persons jointly engag'ed in the acts complained of may be united as defendants, or sued severally in separate suits until plaintiff’s claim is barred by the satisfaction of a judgment in his favor. (13 Ency. of Pl. & Pr. p. 427.) The case was dismissed as to G. Lasher and. Francis W. Savag'e, and John Johnson was not served. The court did not err in proceeding with the trial of the case as against the appellant. Davis v. Taylor, 41 Ill. 405; Illinois Central Railroad Co. v. Foulks, 191 id. 57.
It is also contended that the court erred in admitting proof of the acts and declarations of Johnson and Savage when the appellant was not present. The court, from the evidence, was justified in holding that the appellant and Johnson and Savage were acting together in causing the arrest of the appellee, and the conspiracy being established, everything said, written or done by either of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done or written by every one of them and may be proved against each. Hamilton v. Smith, supra.
It is further contended the damages are excessive. That question was settled by the judgment of the Appellate Court, and it is not open to review in this court. Illinois Central Railroad Co. v. Turner, 194 Ill. 575.
Finding no reversible error in this record, the judgment of the Appellate Court will be affirmed.
Judgment affirmed.
