{
  "id": 443460,
  "name": "Eliezer M. Thorpe, Plaintiff in Error, v. James Balliett, Defendant in Error",
  "name_abbreviation": "Thorpe v. Balliett",
  "decision_date": "1861-01",
  "docket_number": "",
  "first_page": "339",
  "last_page": "341",
  "citations": [
    {
      "type": "official",
      "cite": "25 Ill. 339"
    }
  ],
  "court": {
    "name_abbreviation": "Ill.",
    "id": 8772,
    "name": "Illinois Supreme Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "23 Ill. 575",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        5802233
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill/23/0575-01"
      ]
    }
  ],
  "analysis": {
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    "ocr_confidence": 0.607,
    "pagerank": {
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    "simhash": "1:de7bc865cb5f019d",
    "word_count": 775
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  "last_updated": "2023-07-14T17:06:49.902665+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Eliezer M. Thorpe, Plaintiff in Error, v. James Balliett, Defendant in Error."
    ],
    "opinions": [
      {
        "text": "Walker, J.\nIt is urged that the court below erred in giving the fourth instruction asked by defendant in error, and refusing to give the last asked by plaintiff in error. The instruction given, informs the jury that the discharge of the plaintiff, by the examining justice of the peace, was prima facie evidence of the want of probable cause for the prosecution of Thorpe. The instruction refused to be given, asserts the reverse of that proposition. Then, if it was proper to give one, it follows that the other should have been refused. In the case of Israel v. Brooks, 23 Ill. 575, we held that the discharge of the person accused by the examining magistrate, is not evidence of the want of probable cause, but to establish that fact, something more must be proved. That case is in point, and is decisive of this. The court should have refused the instruction given, and have given the one refused. The judgment of the court below must therefore be reversed, and the cause remanded.\nJudgment reversed.",
        "type": "majority",
        "author": "Walker, J."
      }
    ],
    "attorneys": [
      "Tupper & Nelson, for Plaintiff in Error.",
      "A. J. Gallagher, and Prather & Malone, for Defendants in Error."
    ],
    "corrections": "",
    "head_matter": "Eliezer M. Thorpe, Plaintiff in Error, v. James Balliett, Defendant in Error.\nERROR TO MACON.\nThe discharge by an examining magistrate of a person accused of a crime, is not such evidence of a want of probable cause, as will maintain an action for a malicious prosecution.\nThis is an action on the case, brought by plaintiff in error against defendant in error, for malicious prosecution.\nThe declaration contains three counts.\nThe first count alleges, that plaintiff in error, on the 12th day of September, 1859, before E. G. Falconer, justice of the peace, charged defendant in error with having knowingly and designedly, by false pretense,obtained from the plaintiff in error, \u00a7650.\nThe second count alleges, that plaintiff in error, on the 13th day of September, 1859, charged defendant in error with having committed a certain other offense, punishable by law, to wit, a felony.\nThe third count alleges, that plaintiff in error, on the 13th day of September, 1859, charged defendant in error with having committed a certain other offense punishable by law, to wit, that of obtaining from the plaintiff in error, knowingly and designedly, by false pretenses, (then and there meaning that said defendant in error had obtained money from plaintiff in error, by false pretenses,) obtained from the said plaintiff in error, $650, he, said defendant in error, intending to defraud and cheat the said plaintiff in error out of the said $650.\nPlea, general issue. Trial by jury.\nThe proof showed that one E. G. Falconer, an acting justice of the peace, issued the warrant. That he did so on affidavit written and made by Thorpe; that the warrant and affidavit were attached, and that he gave the warrant to John M. Lowry, constable, to be executed.\nGeorge Goodman testified, that he was acting juctice; that defendant in error was brought before him on a charge in handwriting of plaintiff in error. That he discharged defendant in error on ground of insufficiency of affidavit. That Thorpe prepared another affidavit, which he attached to the old warrant, erased Falconer\u2019s name, and inserted his own in same warrant.\nJohn M. Lowry, a constable, proved an arrest. \u2022\nJesse Hart proved words between Thorpe and Balliett; that they quarreled together, and Thorpe threatened to have him arrested.\nJ. S. Post proved that as an attorney he was employed by Thorpe to prosecute before Goodman, and did so.\nThe court instructed the jury for the plaintiff \u2014 that if they believed, from the evidence, that Balliett was discharged by the examining magistrate upon the investigation of the charge preferred by Thorpe, then such discharge is prima facie evidence of a want of probable cause for such prosecution on the part of Thorpe.\nThat threats made by Thorpe that he would cause Balliett to be arrested and prosecuted for other and different reasons than the charges made in the affidavit, may also be taken into consideration by the jury'in determining the want of probable cause for such prosecution.\nThe court refused to give the following instruction for the defendant: \u201c That the want of probable cause is not shown by the fact alone that the plaintiff was acquitted before the magistrate.\u201d Exception taken. Verdict for plaintiff, $300.\nMotion for new trial overruled. Judgment for plaintiff upon the verdict.\nThe errors assigned are, the admitting the affidavit and warrant marked exhibit \u201c A \u201d in evidence; in giving defendant\u2019s instructions; in refusing plaintiff\u2019s instruction; in overruling plaintiff\u2019s motion for a new trial; and in giving judgment for defendant.\nTupper & Nelson, for Plaintiff in Error.\nA. J. Gallagher, and Prather & Malone, for Defendants in Error."
  },
  "file_name": "0339-01",
  "first_page_order": 345,
  "last_page_order": 347
}