{
  "id": 2607160,
  "name": "Frederick Collins et al. v. William B. Hayte",
  "name_abbreviation": "Collins v. Hayte",
  "decision_date": "1869-01",
  "docket_number": "",
  "first_page": "337",
  "last_page": "351",
  "citations": [
    {
      "type": "official",
      "cite": "50 Ill. 337"
    }
  ],
  "court": {
    "name_abbreviation": "Ill.",
    "id": 8772,
    "name": "Illinois Supreme Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
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  "last_updated": "2023-07-14T17:50:26.600758+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Frederick Collins et al. v. William B. Hayte."
    ],
    "opinions": [
      {
        "text": "Mr. Chief Justice Breese\ndelivered the opinion of the Court:\nW e have confined our attention chiefly to the three errors first assigned by appellants, which are as follows ; Excluding legal and proper evidence offered by appellants, and in sustaining objections to legal and proper questions put by appellants; refusing to permit appellants to propound to witnesses at the trial, legal and proper questions, and in refusing to permit proper questions put to witnesses by appellants to be answered ; permitting appellee to put illegal and improper questions to the witnesses, and to give illegal evidence to the jm7-\nWe have looked carefully into the testimony found in the bill of exceptions, and are satisfied that much of the evidence offered by appellants and excluded, should have been received.\nThe action was case, for a malicious arrest, the plaintiff having been arrested by defendants in an action brought by them against him and others for enticing away their apprentices, which action was dismissed by them, no trial having been had.\nThe facts briefly are, that appellants were extensively engaged in the iron foundry business at Quincy, employing a very large capital, and doing a heavy and profitable business under the \u201c free\u201d system, as distinguished from the antagonist system of the \u201c moulders\u2019 union.\u201d They had at one time in 1864, carried on their establishment under the rules and control of this union, but changed it to a free foundry, and adopted a system of apprenticeship and journeyman work prohibited under the system of the moulders\u2019 union. On this change by appellants, the union moulders employed by them quit work, and in June, 1866, all the apprentices of appellants quit their employment.\nAppellee being considered, with others, an active instigator of the \u201c strike\u201d by their apprentices, and who belonged to the moulders\u2019 union, was prosecuted for his alleged unlawful conduct in enticing away their apprentices, and bail required in a large sum of money, which resulted in his short imprisonment.\n\u2022 It is in vain to say, when the evidence is considered, that appellee was not actively hostile to appellants\u2019 establishment. Many witnesses establish this fact.\nThat the moulders\u2019 union were directly implicated in the attempt to break up appellants\u2019 free establishment, is abundantly proved, and that appellee was an active participant therein appears to be well established by the testimony.\nThis design existing with the moulders\u2019 union, it became very important to show that the witnesses for the plaintiff became members of that union after they left appellants, but when the question was asked, on cross-examination, where great latitude is allowed, of a witness if he had joined the moulders\u2019 union, the court would not permit the question to be put. In this the court erred, for although it did not, technically, pertain to the matter of the direct examination of the witness, still it was admissible to show the influences under which the witness was placed by joining the moulders\u2019 union.\nAll the questions put to Smeiderkamp, on cross-examination, and rejected by the court, should, on the above principle, have been allowed, and so with Mailing and Carter. The refusal of the court to permit them to answer the questions put on cross-examination was erroneous.\nThe question put to defendants\u2019 witness, Pfeiffer, by the defendants, as to what he learned was the object of the meeting at the engine house, was so applicable to the whole matter in controversy, the witness having stated appellee was at that meeting, that it is difficult to perceive on what ground it was excluded, and so of the question which immediately followed it, and excluded, \u201c Was, or was not, this meeting held at the place of meeting of the moulders\u2019 union ?\u201d The objection was not, that the question was leading, but that it was an improper question in itself. We think, as a conspiracy was sought to be proved by appellants by members of this union against them, these questions were very proper, as tending in that direction. So the question put to Lopaz, of the same nature, should have been answered by him, for the reasons given.\nThis question put to Emery, a witness for defendants, \u201c State whether there was any complaint among the apprentices before the strike,\u201d in the view we take of the case, was pertinent, whether appellee was connected with the \u201c complaints\u201d or not. An effort was made by defendants to connect him with the strike, and defendants should have been allowed to show there was really no complaint by the apprentices. The inference would then be a fair one, that they struck by reason of the officious intermeddling and unwarranted conduct of plaintiff and others. All the questions propounded to this witness, which were disallowed by the court, should have been allowed, and the same may be said of those put to McElfrish, who was a member of the moulders\u2019 union, and stood in the position of an unwilling witness, with whom great latitude of examination is allowed.\nWhen the nature of the action is considered, the onus of proof of probable cause being on the appellants, justice requires they should not be closely circumscribed in their efforts to that end. It is the duty of every citizen, knowing a criminal offense has been committed, to give notice thereof to the authorities, and if a prosecution is instituted and fails, he ought to be allowed to go into an examination of all the facts and circumstances attending the case, in order to his own justification. Were not this so, but few persons would be found willing to incur the risk of a prosecution against a suspected malefactor, an action for a malicious prosecution to ensue upon his acquittal.\nBut we do not intend to go into any examination of the proof in this case, as going to show probable cause, but only to state a safe principle, that in such actions great latitude of inquiry is, and should be, indulged.\nAnother error was refusing to permit Mr. Bushnell, one of appellants\u2019 counsel, who had stated that they had consulted him and stated the facts of the case, to answer what opinion he gave them as to their right of action and arrest of appellee. The court would only allow him to be asked if he advised bringing the suit by appellants.\nHow it is very apparent this latter question was an impertinent one, so far as Mr. Bushnell, or any other high-minded lawyer, might be concerned, for such lawyers do not advise clients to bring suits. They give them the law on the facts stated. We question very much if Mr. Bushnell ever advised a client to bring an action. The appellants had a right to have the specific question asked of Mr. Bushnell, answered by him\u2014 did he advise appellants that they had a right of action, not, did he advise the action brought.\nBringing an action after taking competent legal advice that a right of action exists, will, in most cases, relieve it from the charge of having been brought maliciously and without probable cause. Appellants were entitled to have the precise question put and answered by Mr. Bushnell.\nFor these errors, the judgment of the circuit court is reversed and the cause remanded.\nJudgment reversed.",
        "type": "majority",
        "author": "Mr. Chief Justice Breese"
      }
    ],
    "attorneys": [
      "Mr. N. Bushnell, Messrs. Skinner & Marsh and Messrs. Wheat & Marcy, for the appellants.",
      "Mr. Jackson Grimshaw and Messrs. Warren & Wheat, for the appellee."
    ],
    "corrections": "",
    "head_matter": "Frederick Collins et al. v. William B. Hayte.\n1. Evidence\u2014in suits for malicious prosecution. Where a party gives notice to the authorities of an alleged criminal offense, and a prosecution is instituted thereon, and fails, in an action against him for malicious prosecution, he ought to be allowed to go into an examination of all the facts and circumstances attending the case, in order to his own justification. In such action the onus of proof of probable cause being upon the defendant, he should not be closely circumscribed in his efforts to that end, but should be allowed great latitude of inquiry.\n2. In this case, the prosecution complained of as being malicious, was instituted by the proprietors of a foundry wherein the operatives were journeymen and apprentices employed contrary to the rules of an organization called the \u201c Moulders\u2019 Union.\u201d Certain persons connected with that \u2018\u2018 Union,\u201d conspired to entice away the apprentices, and to interfere with the prosecution of the business of their employers; the latter commenced an action on the case against the alleged conspirators, and sued out a capias therein, on which the parties were arrested and held to bail, after which the suit was dismissed by the parties bringing it, without being brought to a trial. One of the parties so arrested thereupon instituted this suit for the alleged malicious prosecution, in respect thereto: Held, in the latter suit, when a witness for the plaintiff was introduced to exonerate him as one of the conspirators, that it was competent to show, on the cross-examination of such witness by the defendants, that he had become a member of the \u201c Union\u201d after he left the defendants\u2019 employment; although it did not technically pertain to the matter of the direct examination, it was admissible as showing the influences under which the witness was placed, by joining the \u201cUnion.\u201d\n3. So it is competent in such a case, for the defendants to prove what was the object of a meeting of their employees, which was attended by the plaintiff, and to ask if such meeting was not held at the place of meeting of the \u201cMoulders\u2019 Union.\u201d As it was sought to show a conspiracy by the members of that \u201cUnion,\u201d such an inquiry was proper as tending to that end.\n4. It would also be competent for the defendants to prove whether the apprentices made any complaints before the \u201c strike,\u201d and what connection the plaintiff had with such complaints, and all questions would be allowable which would have a tendency to show the improper action of defendants\u2019 employees was by reason of the officious intermeddling of the plaintiff and others.\n6. Malicious prosecution\u2014of the advice of counsel. In an action for an alleged malicious prosecution and arrest, under process in a civil action, it is competent for the defendant to prove by his attorney what opinion the latter gave him as to his right of action and arrest of the plaintiff, and it is improper to limit the inquiry as to whether the attorney advised the suit to be brought.\n6. Bringing an action after taking competent legal advice that a right of action exists, will, in most eases, relieve it from the charge of having been brought maliciously and without probable cause.\nAppeal from the Circuit Court of Adams county; the Hon. Joseph Sibley, Judge, presiding.\nThis was an action on the case, brought in the court below, by William B. Hayte, against Frederick Collins, Allen Comstock, Enoch Comstock, Timothy H. Castle and Charles H. Winn, for an alleged malicious prosecution, arrest and imprisonment.\nThe declaration alleges that on the 2d of July, 1866, the defendants, maliciously and without probable cause, instituted an action on the case against the plaintiff and five others, suing out a capias in said action, and caused bail in the sum of $50,000 to be endorsed thereon by the clerk, and the plaintiff to be arrested on said capias and imprisoned for the space of six hours, until he gave bail on said capias; that the defendants failed to prosecute their suit with effect, and dismissed it at the March term, 1867, making the usual averments as to pain of body and mind, hindrance of business, loss of credit, expenses of defense, &c.\nThe defendants pleaded not guilty.\nThe various questions arising in regard to the admissibility of evidence, will best be understood by recurring to the facts out of which the original prosecution against the plaintiff arose. Those facts, as they are alleged to have existed, are presented in the affidavit of one of the defendants, upon which the capias issued in that proceeding, as follows:\nThat on June 27tli, 1866, the plaintiffs (in that suit) were, and for four years had been, manufacturing stoves, &c., at a foundry in Quincy, and then had in their employment in said business, a large number of employees, whose names were set forth, working for them under printed and written contracts, of various dates, then having considerable length of time to run, by which contracts the employees were bound to work for plaintiffs and learn the trade of moulding, for certain terms specified in the contracts, the plaintiffs agreeing to cause the employees to be instructed in moulding in the best manner, furnish them employment, and pay them certain specified wages.\nThat at the time of the alleged enticement of the said employees, these contracts were in full force, and plaintiffs had fully complied with them. Refers to a schedule annexed, as setting forth names of employees, terms of service, rate of wages, unexpired terms of service, estimated average weekly value of each employee\u2019s service during his unexpired term, and estimated excess of such value over the wages stipulated in the contracts. That the employees, when they began work, were wholly unskilled in moulding; that they had already acquired considerable skill, and would have continued to improve during their unexpired terms, and the values assigned to their weekly services in the schedule, are an average estimate, founded upon the ordinary and usual progressive increase in skill and efficiency, as shown by experience in like cases; that, estimating the value of their services for the unexpired terms at what they were worth at the time they were enticed away, the aggregate would be at least $25,000 over and above the wages stipulated in the contract.\nThat on or about the 27th day of June, A. D. 1866, John Keho, Henry B. Carter and Edward Malone, (who had been journeymen in the foundry for a few days prior thereto,) together with Samuel Wood, William B. Hayte and John C. Eisher, (who were not connected with the foundry,) combining and confederating themselves together, of their fraud and malice, to deprive affiant and said Frederick Collins, Allen Comstock, Enoch Comstock and Charles H. Winn, of the services of their said employees, and to injure, break up and destroy their said manufacturing business, did unlawfully, &c., entice, persuade and procure all of said employees in said schedule mentioned (being then and there engaged in the service aforesaid, under the contract aforesaid,) to depart from and out of the said service and employment of the said Frederick Collins, &c., and to wholly abandon said service, by means of which enticement, procurement and persuasion, the said employees, afterwards, and on the 27th day of June, A. D. 1866, unlawfully, &c., and without the assent of said Frederick Collins, &c., departed from and out of their said service and employment, and have ever since remained, and still do remain absent from said service and employment, and have wholly refused to return into their said service and employment, and have wholly abandoned their said contracts, and refuse to be further bound by or to comply with the same, whereby said Frederick Collins, &c., have wholly lost the benefit of said contracts, and of the services of their said employees, and sustained damage to the amount of $25,000, at the lowest computation, and said damage, in the ordinary course of business, would amount to a much larger sum.\nThat the employees so enticed away, constituted almost the entire force of hands at the foundry, and that the business had thereby become necessarily wholly suspended.\nThat the business requires the regular service of skilled employees, who are very difficult to obtain without great effort and long space of time, labor\u00e9is skilled in the trade being scarce in the United States, and particularly in the west; that the business requires a large outlay in buildings, material, &c., which are of little value compared to their cost, except in the continued and regular use of the same ; that the expenditure and outlays of plaintiffs have been over $100,000, whereby and by means of said employees the same hath become an extensive business, and profitable, in an amount not less than $200,000 per annum, which, by means of the premises, is destroyed.; that said employees have been collected, instructed and prepared for such services with a view to said business and outlay, by great diligence, expense, and long efforts, and for such sole purpose, and that the damage reasonably and necessarily resulting from the stoppage, delay and hindrance of the said business is not less than $25,000.\nThat said Frederick Collins, &c., are about to commence a suit, and that there is danger that the judgment will be lost unless the parties are held to bail.\nA schedule attached to the affidavit, contains the names of 34 employees, their unexpired terms ranging from 34 weeks to 900 days ; weekly wages ranging from $5 to $8; the weekly value of their services ranging from $15 to $23; and the excess in value of the unexpired terms, over the stipulated wages, being estimated in the aggregate at $37,640.\nA capias was issued upon this affidavit, against Hayte and the other alleged conspirators, upon which bail was endorsed to the amount of $50,000. Hayte was arrested under the capias, and after remaining in jail about two hours he was taken before a Circuit Judge, upon habeas corpvs, gave bond for his appearance before the judge the next morning, when, after a hearing, he was again confined in jail about two hours, and then released upon bail of $10,000. This arrest was made in July, 1866. At the October term following,the cause was continued, and at the March term, 1867, it was dismissed by the plaintiffs therein. Those are the proceedings upon which this action for malicious prosecution was brought by Hayte.\nOn the trial below, the plaintiff, Hayte, introduced several witnesses who had been in the employment of the defendants in their foundry, and examined them in relation to the apprentices of. the defendants leaving their establishment, and the cause of their doing so, and in relation to a \u201c strike\u201d among the employees generally, of the defendants.\nOne of those witnesses, Smeiderlmmp, stated, on his examination in chief, that a meeting was held by those engaged in the \u201c strike,\u201d and a paper prepared, setting forth the terms they demanded from the defendants, and a committee was appointed, of which the witness was one, to present that paper to one of the defendants. The object of the \u201cstrike,\u201d was, as avowed by this witness, to prevent any more apprentices being taken into defendants\u2019 foundry, and to raise the wages of journeymen.\nOn the cross-examination, the defendants\u2019 counsel propounded to the witness the following questions: \u201c Have you joined the Moulders\u2019 Union?\u201d \u201cWhen did you join the Moulders\u2019 Union ?\u201d \u201c Were you or were you not, during the time of the strike, told by some of the members of the Moulders\u2019 Union, that if you would then join the Moulders\u2019 Union, it would save you $300 ?\u201d These questions were severally objected to, on the ground that they were not pertinent to the matter of the direct examination, and the objection was sustained, to which the defendants excepted.\nThe witness then stated that the committee waited on Com-stock, one of the defendants, with the paper mentioned, but that he did not look at it. The defendants\u2019 counsel asked him, \u201c Did or did not that paper require Mr. Comstock to agree to different wages for the apprentices ?\u201d Objected to, as not pertinent to the matter of the direct examination, and objection sustained.\nThe witness proceeded: \u201c When the paper was presented, Comstock wanted to talk with us apprentices, by ourselves. We wouldn\u2019t do that; we were ordered not to talk unless the whole committee were present.\u201d\nQuestion by defendants\u2019 counsel: \u201c Before the strike, were you, or not, followed and insulted by members of the Moulders\u2019 Union, for being an apprentice?\u201d Objected to, as not pertinent to the matter of the direct examination. Objection sustained; exception by defendants.\n\u201c The meeting of which I have spoken, was a meeting of the boys and jours of the shop. It was not after the strike; it was before the strike. We boys had made up our minds to do what we had done ; but we got up the meeting to get us all together. We had previously determined to strike. I think we worked the day previous to the meeting. The object of the meeting was to get up a proposition to make to defendants. Wood was there; Fisher was not. Comstock & Co. afterwards agreed to a paper similar to the one we presented to Allen Comstock.\u201d\nHairing, another witness for the plaintiff, on his cross-examination by the defendants, was also asked: \u201c Have you joined the moulders\u2019 union ?\u201d and \u201c When did you join the moulders\u2019 union ?\u201d These questions were objected to as not being pertinent to the matter of the direct examination, and the objection sustained.\nThe witness had stated, on his direct examination, that he was one of defendants\u2019 apprentices at the time of the \u201c strike,\u201d and that he did not think Hayte persuaded the boys to leave.\nCarter, who was also an employee of defendants, was a witness for the plaintiff, and his testimony tended to exonerate Hayte from any connection with the strike or the conspiracy. On his cross-examination, the defendants\u2019 counsel asked him: \u201cDid you, during the strike, \u00f3r immediately afterwards, join the moulders\u2019 union?\u201d and \u201cWere any of the apprentices named in the affidavit of Castle, taken into the moulders\u2019 union about the time of the strike ?\u201d Objections were sustained to these questions, on the same ground as the others.\nMuch testimony was introduced by the defendants, to show a conspiracy to injure the establishment of the defendants, and to induce their apprentices to leave them, for the reason that the defendants conducted their foundry on the \u201c free\u201d system, and not subject to the rules of the \u201cmoulders\u2019 union,\u201d and the evidence tended to connect Hayte, the plaintiff, with that conspiracy.\nCharles Pfeiffer, examined for the defendants, testified: \u201cAt the time of the strike in defendants\u2019 foundry, my brother was security on the contract of one of the apprentices. I was at a meeting at Ho. 4 engine house; I think Hayte was there. I know Hayte said something to the apprentices. Wood was there. Wood said the boys should go back to work again. Hayte said Comstock had broke his word so often that they could not believe him. At that meeting Joseph Lopaz stated that Comstock had agreed not to take any more apprentices. Wood said, \u2018then the boys may go back.\u2019 Hayte said Com-stock had broke his word so often that he couldn\u2019t trust him. The house was crowded.\u201d\nQuestion by defendants\u2019 counsel: \u201cWhat did you learn at that meeting was the object of the meeting ?\u201d Objected to. Objection sustained; exception by defendants.\n\u201cAt this meeting, Wood, Hayte and Castle made speeches. Hayte was participating in the meeting. From Hayte and others\u2019 talk, I learned that the object of the meeting was to prevent Comstock taking more apprentices. What Hayte said was in his speech. The apprentices were then on a strike.\u201d\nQuestion by defendants\u2019 counsel: \u201cWas, or was not, this meeting held at the place of meeting of the moulders\u2019 union ?\u201d Objected to. Objection sustained ; exception by defendants\u2019 counsel.\nCross-examined:\n\u201c This meeting was held in the upper story of the engine house. Lopaz, Conyers and Worth were there. This is the only meeting I attended.\u201d\nBe-examined:\n\u201c Others beside Hayte, at that meeting, made the remark, \u2018 not to go back.\u2019 It was a general remark through the meeting.\u201d\nSimilar questions were propounded to Lopaz, another of defendants\u2019 witnesses, and ruled out by the court.\nIS. IT. Emery, examined for the defendants: \u201c Have been in defendants\u2019 employ 11-J years. Bemember the strike in 1866. The men named in the schedule of Castle\u2019s affidavit were all in defendants\u2019 employ at the time of the strike. They all struck. For eight years a portion of my business has been at defendants\u2019 foundry. I was clerk at foundry, counted work, shipped, sometimes had general charge of it.\u201d\nQuestions by defendants\u2019 counsel. \u201c State whether there was any complaint among the apprentices before the strike ?\u201d Objected to, for the reason, among others, that \u201csaid question was not admissible unless defendants proposed to connect Hayte with the complaints.\u201d Objection sustained; exception by defendants.\n\u201cHad there, or had there not, been any dissatisfaction expressed among the hands in the foundry of defendants, before the strike ?\u201d Objected to, for the same reason as the last preceding question. Objection sustained; exception by defendants.\n\u201c I saw Hr. Hayte at the steamboat landing when I went there with Comstock to receive a man who was coming to work for us. I thought Hayte tried to get access to the man. Hayte was stationed at the levee at that time; Fisher was with him. I saw Hayte, and I believe Fisher, standing on the levee when the steamboat landed; I did not see Hayte do anything. I have seen Hayte around the foundry of defendants, and once, at least, inside of it; I told him my instructions were to request him to stay out of there; he went out. This was in 1864, before I learned of his getting in at the window. I have often seen him around the foundry in the morning, about the commencement of work hours.\u201d\nQuestions by defendants\u2019 counsel: \u201c State whether or not the boys were operated upon by fear, during the strike?\u201d \u201cWere the apprentices over-worked, or not?\u201d \u201cWere, or were not, the boys paid more than the prices mentioned in their indentures ?\u201d \u201c State whether at the time of the strike, or for a long period before that, any floor-rent had been charged ?\u201d Which were objected to, as leading and irrelevant, and objection sustained.\nCross.-examined:\n\u201c I once saw Hayte standing on the levee with Fisher, in 1864. Never saw Hayte at the foundry hut once; he said he wanted a fish-pole ; I sent and got it for him.\u201d\nWilliam McMfrish, examined for defendants: \u201c I live in Quincy. Have worked for defendants as a moulder. (Plaintiff\u2019s counsel here admitted that Hayte was a member of the moulders\u2019 union in 1866.) I had a good many conversations with Hayte in 1864. I can\u2019t positively say that Hayte ever told me he was in the employ of the moulders\u2019 union. To the best of my recollection, what Hayte told me was, that he was employed to state the truth as to the moulders\u2019 union\u2014 not precisely to prevent men from going to work for defendants. I was employed at that time in the store of Mr. \"Roberts, near the depot and steamboat landing.\u201d\nQuestion by defendants\u2019 counsel: \u201c When did you cease to be a member of the moulders\u2019 union?\u201d Objected to, as irrelevant. Objection sustained ; exception by defendants.\n\u201c I can\u2019t tell what Hayte said as to what wages he got from the union. He was employed in that way perhaps a month, and perhaps two months. I don\u2019t think I saw him more than two or three times while he was so employed.\u201d\n. Question by defendants\u2019 counsel: \u201c What object or purpose was there in employing Mr. Hayte for the service of which you have spoken?\u201d Objected to. Objection sustained; exception by defendants.\n\u201c Hayte may have said to me that he would battle Comstock on the principle. I don\u2019t know whether the union men made any threats. I suppose a part of Hayte\u2019s object was to prevent the defendants from getting journeymen to instruct their apprentices, but I do not know what his object was.\u201d\nQuestion by defendants\u2019 counsel: \u201c Was, or was not, Hayte hostile to the apprentice system ?\u201d 0 bjected to, as leading and irrelevant. Objection sustained; exception by defendants.\nWehemiak Bushn\u00e9ll, examined for defendants ; \u201c I am a practicing lawyer; have practiced as. an attorney for thirty. years. I was one of the counsel for the present defendants in their suit against Wood, Hayte and others mentioned in the declaration in this case. They stated to me the facts in the case before we brought the suit.\u201d\nDefendants\u2019 counsel then propounded the following question to the witness: \u201c Upon their stating the facts in that case to you, what opinion, if any, did you give them as to their right to maintain that suit, and to cause the defendants in that suit to be arrested ?\u201d To which question the plaintiff\u2019s counsel objected, and stated to the court, at the time, that they made no controversy about the fact that the witness did advise the bringing of the said suit, and then asked the court not to allow the said question to be answered by the witness; and the court thereupon did sustain the objection, and refused to permit the witness to answer the said question; to which opinion and decision of the court the defendants at the time excepted. The court at the same time offered to allow the witness to answer whether he did advise the bringing of the said suit, and if so, to state it; but the counsel for the defendants then and there declined to accept of said offer.\nThe defendants\u2019 counsel then propounded the following question to the witness: \u201c What advice did you give the defendants in relation to bringing that suit, and having the defendants arrested ?\u201d To which question the plaintiff\u2019s counsel objected, and asked the court not to permit the witness to answer the same, and the court sustained the said objection, and refused to permit the witness to answer the same; and the court at the same time offered to permit the witness to answer whether he had advised the bringing of the said suit, and if so, to state the advice given; but the defendants\u2019 counsel then and there declined to accept said offer; to which opinion and decision of the court, in sustaining the said objection, and refusing to permit the witness to answer the same,the said defendants, by their counsel, at the time of the giving of said opinion and decision, excepted.\nThis portion of the testimony given on the trial, presents the questions arising in the case, as to the propriety of the rulings of the court below in regard to the admissibility of testimony sought to be introduced by the defendants.\nThe jury returned a verdict for the plaintiff, assessing his damages at $661, for which judgment was rendered. The defendants thereupon took this appeal.\nMr. N. Bushnell, Messrs. Skinner & Marsh and Messrs. Wheat & Marcy, for the appellants.\nMr. Jackson Grimshaw and Messrs. Warren & Wheat, for the appellee.\nThis and the following case, decided at the January term, 1868, were necessarily omitted from their proper place in the reports of that term."
  },
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