Lawrence v. Hagerman.

at the institution of the suit, given bond with security to pay all damages the defendant may sustain by reason of the attachment having been wrongfully sued out."

We have examined the cases referred to in support of the text, and find the doctrine fully sustained. Sanders v. Hughes, 2 Brevard, 495; Bonnell v. Jones, 13 Ala. 490; Smith v. Story, 4 Humph. 169; Pettit v. Mercer, 8 B. Mon. 51; Senecal v. Smith, 9 Rob. 418.

The case of Chapman v. Pickersgill, 2 Wils. 145, was an action brought for falsely and maliciously suing out a commission of bankruptcy. An objection, like the one taken in this case, was urged, that the action would not lie, there being a remedy given by the statute. It was held that the action was maintainable at common law, independent of the statute, which provided a remedy. There is great force in the reasoning of the lord chief justice who delivered the opinion of the court, where he said: "This is an action for a tort; torts are infinitely various, not limited or confined, for there is nothing in nature but may be an instrument of mischief, and this of suing out a commission of bankruptcy, falsely and maliciously, is of the most injurious consequences in a trading community." This brief paragraph embodies the true philosophy of the law. The law has wisely provided a remedy, ample in its scope, for all the consequences that may naturally flow from every wrongful act.

In this instance the grounds of the action are, that the writ was falsely and maliciously, and without probable cause, sued out, and by reason of the premises the appellee's business was broken up, and his credit and financial reputation impaired. The remedy by action on the bond would not afford complete indemnity, and would not extend to the consequential damages sustained, and hence resort must be had to the common-law action on the case for malicious prosecution. If such an action cannot be maintained, it necessarily follows that there are injuries flowing from wanton and malicious acts, for which the law would afford no redress. Our remedial laws will bear no such narrow and illiberal construction. For every injury to property, credit or reputation, the law has provided an appropriate remedy.

In Gorton v. Brown, 27 Ill. 499, it was said by this court that the action will lie, for it is reasonable that, when an injury is done to a person, either in reputation, property, credit, or in his profession or trade, he ought to have an action of some kind to repair himself.

We perceive no reason for making a distinction in cases of mali

Lawrence v. Hagerman,

cious prosecution instituted on criminal charges or in civil actions. The consequences may be ruinous in either case. A man's business, credit and reputation may be as effectually destroyed by a malicious prosecution in a civil action as upon a criminal charge.

We entertain no doubt, upon principle and upon authority, that at action on the case for maliciously, and without probable cause, suing out a writ of attachment is maintainable for the injury of the business, credit and reputation of the defendant, notwithstanding the statute has required the plaintiff to give a bond, conditioned to pay all damages that may be occasioned by the wrongful suing out of the writ. It is a more complete remedy of which a party may avail, independent of the statutory remedy. Chapman v. Pickersgill, 2 Wils. 145; Fortman v. Rottier, 8 Ohio, 548; Bump v. Betts, 19 Wend. 421.

It is insisted that the verdict is not only unsupported, but that it is against the weight of the evidence, and that it is excessive and oppressive in its amount.

We have carefully considered the evidence, and find that there is testimony from which the jury could properly find that the writ was sued out and the levy made without any probable cause, and that there were no grounds whatever that would justify the appellant in resorting to such violent measures to enforce the collection of his debt. The evidence negatives the inference that the appellant, as a reasonable man, could have entertained the belief that the appellee was about to leave the State, with a view to remove his property, or that he was about to incumber or dispose of his property, with a view to hinder or delay his creditors in the collection of their just debts. We must, in all such cases, rely largely upon the verdict of the jury, as presenting the truth. It was a question of fact, submitted to the jury for their determination, and we cannot say that their conclusion is not warranted by the evidence. It has been repeatedly held, by this court, that where the jury have passed on the questions of fact involved, under proper directions from the court, their finding will not be disturbed in the appellate court, unless it is clearly against the weight of the evidence.

We cannot regard the verdict as being excessive, in view of all the consequences that followed from the suing out of the writ, if it was, in fact, malicious and without probable cause, as the jury have found. The loss on the stock, and the money actually paid out in the defense of the suit in the circuit and supreme courts, amounted,

Lawrence v. Hagerman.

according to the version of the appellee's testimony, to between $700 and $1,000. The evidence is uncontradicted, that, at and before the date of the levy under the attachment writ, the appellee was doing a prosperous business, with a good and advantageous credit. His business was utterly broken up, and his credit impaired, by the ill-advised and inconsiderate act of the appellant. The act of the appellant was hasty and inconsiderate, to say the least of it. There is evidence, if the jury gave full credence to it, from which they could find that he acted with express malice. The law, however, would imply malice from the want of probable cause.

We think that the case was fairly presented to the jury, and their finding cannot be disturbed. Many of the errors complained of in the rejection of evidence were cured in a subsequent part of the trial by the admission of the evidence objected to. That some slight errors may appear in the record is more than probable; but we are unable to detect any substantial error for which the judgment ought to be reversed.

The instructions, taken and considered together, state the law with sufficient accuracy, and could not have misled the jury on the controverted facts.

We are satisfied that substantial justice has been done, and that, if a new trial should be awarded, and the trivial errors that appear in the record corrected, the result in the end would be the same It would avail the appellant nothing to award a new trial on the evidence presented in the record. It appears, affirmatively as well as negatively, that there was no probable cause for suing out the writ of attachment, and the consequences to the appellee were most disastrous, and the appellant cannot escape liability for the injuries occasioned by his unwarrantable acts. A verdict that would hold him guiltless, under any view that we have been able to take of the case, could not be permitted to stand. There is but little in the record, under the most favorable view, that palliates the conduct of the appellant.

The judgment must be affirmed.

Judgment afirmed.

Phelps v. Northup.

PHELPS, appellant, v. NORTHUp.

(56 Ill. 156.)

Parol acceptance of order.

Defendants, having a note for collection, received an order from the owner requesting them to pay a portion of the proceeds when collected to plaintiffs. The order having been accepted by parol, defendants subsequently trans. ferred the note to C, to whom it was paid. Held, that the parol acceptance was binding, and that defendants were liable to plaintiffs for the amount of the order.

ACTION of assumpsit to recover the amount of an order.

Defendants had a note made by one Struthers belonging to one Rose for collection. Subsequently Rose gave plaintiffs a written order requesting defendants to pay plaintiffs a portion of the proceeds of the Struthers note when collected. It appears that this order was not accepted in writing, but there was evidence that it was accepted by parol. Defendants afterward transferred the note to one Cratty to whom it was paid. The judgment was for plaintiffs Defendants appealed.

Johnson & Hopkins and Thomas Cratty, for appellants.

O'Brien & Harmon and H. W. Wells, for appellees.

MCALLISTER, J. There was sufficient testimony, if believed, to warrant the jury in finding an acceptance, which might be by parol. And there is no such weight or preponderance of evidence the other way as would justify our interference with the verdict. We are to assume, therefore, that the order was accepted. If so, the legal effect was an undertaking on the part of appellants to pay the amount when the note in their possession for collection was collected, and there can be no doubt that, but for their act disabling them from collecting the Struthers note by transferring it, without appellees' consent, to Cratty, it would have been collected by appellants, and then their refusal to pay would have been a breach of their undertaking. If they had the power to disable themselves from collecting the note, in violation of the rights of appellees, and thus get rid VOL. VIII. -86

Phelps v. Northup.

of their contract, the law would aid them in the commission of a fraud. The contract itself imports that they would use due diligence to collect the Struthers note. Allowing the note to be withdrawn from their hands, and delivering it over to another, while appellees' crder was in their hands and accepted by them, was a positive breach of duty, and as much a breach of their contract as if they had collected the note, and then refused to pay appellees. White v. Snell, 9 Pick. 16.

In Yeates v. Groves, 1 Ves. Jr. 280, Lord THURLOW decided that an order to pay a debt out of a particular fund, belonging to the debtor, constituted an equitable assignment of the fund pro tanto, and gave the creditor a specific, equitable lien thereon, although the order had not been accepted by the holder of the fund before the debtor's bankruptcy.

In Israel v. Douglass, 1 H. Black. 239, Lord LOUGHBOROUGH said, "This debt is, with the consent of the parties, assigned to the plaintiff (the payee); Douglass (the drawee) has notice of it and assents, by which assent he becomes liable to the plaintiffs." Ex parte Alderson, 1 Mad. 53; Lett v. Morris, 4 Sim. 607; Weston v. Barker, 12 Johns. 279; Taylor v. Bates, 5 Cow. 376; Wheeler v. Wheeler, 9 id. 34; Bradley v. Root, 5 Paige, 632.

It follows from these authorities, that the order upon appellants, notice to them, and their assent, bound the fund in their hands. Rose had no right to withdraw, nor they to surrender or assign it over to Cratty. The surrender and transfer of the Struthers note to Cratty was clearly a fraud upon appellees, a breach of appellants' contract, and they were, therefore, liable in this action.

We have examined the instructions given on behalf of appellees, and such on behalf of appellants as were refused, and find no error in either the giving or refusing of instructions.

The judgment of the court below must be affirmed.

Judgment affirmed.