Opinion of the Court.

the United States, upon the foreclosure of mortgages, is to decree a surrender of the possession and title papers by the mortgagor and those claiming under him.

It is only inferentially that we can understand the decree required a report of the sale to be made by the master, but if it was his duty so to report, we must presume the master performed it to the satisfaction of the court, and that objections to the report were then and there made, if any existed, to it. It is not a reasonable presumption the master would give a certificate of sale and a deed, had not the court approved his report.

It is also complained by appellants that this portion of the decree is erroneous: "And it is further ordered, adjudged, and decreed that if the moneys arising from such sale shall be insufficient to pay the amount so due, etc., with the interest, costs, and expenses of sale, said master shall specify the amount of such deficiency in his report of sale, and on the coming in and confirmation of the report, the defendant Frederick Baker, who is personally liable for the payment of the debt secured by said mortgage, pay to the complainant the amount of such deficiency with interest thereon from the date of said last mentioned report, and that said complainant have execution therefor."

This kind of decree is authorized by the act of February 16, 1865, Sess. Laws, 1865, p. 36, and the court in pronouncing it very reasonably presumed the premises, when sold, would fetch at least the interest which had accrued on the decree.

Should the master report they did not, on sale, fetch the interest, and application is made for an execution to collect the balance, the court in ordering an execution would order and direct that the interest should not be compounded.

It is barely possible a case may arise wherein, upon a sale, the property sold may not fetch the interest which has accrued upon the decree. In this case it is not shown or pretended that any injury has accrued to appellants by the decree as it stands, nor can we perceive that any wrong or injustice is to be the consequence.

Syllabus. Opinion of the Court.

With the modification made as to the costs of the demurrer of Clarinda Baker, and the order to the circuit court on directing an execution, if one be applied for, that compound interest shall not be computed, the decree is affirmed.

Decree affirmed.

EDWIN LEE BROWN et al.

v.

CITY OF CHICAGO.

1. SPECIAL ASSESSMENT-party applying for judgment. The authority of a city collector to apply for judgment on special assessments is abrogated by the new constitution.

2. SAME-certificate of publication of notice. Where the certificate of publication of notice of the meeting of commissioners to make the assessment under an ordinance fails to state the date of the last paper containing the notice, or any thing from which it can be inferred, the defect will be fatal to the judgment, on error.

APPEAL from the Superior Court of Cook County.

Per CURIAM: This is an appeal from a judgment of the Superior Court of Cook County, rendered at the March term, 1871, upon the application of the collector of the city of Chicago, upon a special assessment warrant for the opening or extension of Franklin Street, in said city.

Two errors are assigned, each of which is fatal. First, that the authority of the collector to apply for judgment was abrogated by the new constitution. Second, the certificate of publication of notice of meeting of commissioners to make the assessment, fails to state the date of the last paper containing the notice, or any thing from which it can be inferred.

The judgment is reversed and the cause remanded. Judgment reversed.

Syllabus. Opinion of the Court.

JOHN H. WICKER

2

v.

ROMINE V. HOTCHKISS.

Where a party pro

MALICIOUS PROSECUTION-of the want of probable cause. cured an indictment to be found against another, it was held, in an action for malicious prosecution against him, that, if in so doing he acted under the advice of counsel, after having communicated to such counsel all the facts bearing upon the guilt or innocence of the accused, of which he had knowledge, or could, by reasonable diligence have ascertained, the advice thus given was a protection against such prosecution.

APPEAL from the Circuit Court of Cook County; the Hou. JOHN G. ROGERS, Judge, presiding.

Messrs. GOUDY & CHANDLER, and Mr. E. W. EVANS, for the appellant.

Messrs. E. & A. VAN BUREN, for the appellee.

Mr. JUSTICE THORNTON delivered the opinion of the Court:

This was an action on the case for malicious prosecution. The gravamen is the procurement of an indictment for larceny, maliciously and without probable cause; and the consequence the arrest and imprisonment.

There must be proof of both malice and of want of probable cause, to render the party liable in this action.

If there was probable cause for procuring the indictment, there can be no liability upon the defendant; and if he communicated to counsel all the facts, bearing upon the guilt or innocence of the accused, of which he had knowledge, or could by reasonable diligence have ascertained, he ought not to be compelled to respond to the large verdict for $15,000.

Was there probable cause for the prosecution?

The receipt, signed by the plaintiff and read upon the trial, was conclusive evidence that the defendant owned the cattle at the time they were shipped to Chicago, if there was no proof

62 107 52a 37

Opinion of the Court.

to explain it. The letter of January 22, 1867, does not change the effect of the receipt. The latter expressly acknowledged the cattle to belong to Wicker, and Hotchkiss agreed to fatten them at his own expense; and when they were sold, Wicker was to be paid a fixed sum, with ten per cent interest thereon, and out of the proceeds of the sale all necessary expenses of transportation, etc., were to be paid, and the overplus, if any, was to be paid to Hotchkiss. His interest was entirely contingent. If the sale was not for a good price, he had none.

Hotchkiss was exceedingly anxious to contract the cattle at a figure which would leave a surplus for him, and for this purpose he evidently wrote to Wicker, and received the reply of January 22d. He testified that it was a reply to one he had written on the 19th of January, which was not introduced. The subsequent letters of Hotchkiss confirm the only construction which can be given to the receipt. He expresses anxiety to have the cattle contracted, so that he can obtain money to purchase corn; begs Wicker to come and see them; asks for a copy of the receipt; says that he can sell for about seventy dollars a yoke for work cattle; and with Wicker's consent will sell a few.

Why did he wish any consent if he had the right to dispose of them? The consent was not given; and immediately after the failure to consummate an agreement with Wicker to fix a price upon the cattle, or to procure an advance of money from him, he wrote three letters, without date, complaining of a disease of the skin, which had appeared upon the cattle; that some of them were losing fifteen or twenty pounds per week; and yet, in a letter of January 30th, evidently a short time previous to the letters without date, he spoke of the cattle as having done better than any he ever fed, and that he could make them the best cattle which had been shipped from the county. There was matter in these letters calculated to rouse the suspicion of any man.

What followed? Hotchkiss drove thirty-two head of the cattle to a station further from Chicago than the station on the railroad usual for shipment from his neighborhood;

Opinion of the Court.

shipped them in the night; and sold them in Chicago without the knowledge or consent of Wicker, and appropriated the proceeds of the sale to his own use.

Such were the facts known to Wicker when the prosecution was instituted. The proof, upon the trial, developed some circumstances which might somewhat relieve the conduct of Hotchkiss, but they were unknown to Wicker at the time the indictment was procured.

Wicker knew that he owned the cattle; that Hotchkiss had agreed to feed them until the 1st of May; that the receipt contained an acknowledgment of Wicker's right to sell; and when he ascertained that a sale had been made, under such circumstances, before the expiration of the time for which the cattle were to be fed-and secretly and without any communication with him-a strong suspicion would not only be aroused, but an honest belief created that the party was guilty of crime. There was reasonable ground for belief of guilt; and there can not be any liability in an action for malicious prosecution.

Did the prosecutor submit to counsel all the facts within his knowledge, capable of proof, or which he might have known by the exercise of reasonable diligence, and did he act in good faith upon the advice given?

The testimony of Mr. Reed, the State's attorney of Cook County, was, substantially, that Mr. Evans, an attorney of this court, and the prosecutor, came to his office and communicated to him the facts about the shipment of the cattle at an unusual station, in the night time; that Hotchkiss had been employed to feed them; that he had no interest in them and was to be paid for his services; that he had sold them in Chicago without the knowledge or consent of the prosecutor; and then the receipt was shown; and Mr. Reed stated that he thought the party was guilty of larceny.

Counsel for appellee urge that material facts were withheld from the counsel, and that absolute falsehoods were stated. The facts alleged to have been withheld were some arrangements with one Miller, months prior to the date of the