below (the present plaintiff in error) took an appeal to the Appellate Court. The Appellate Court has affirmed the judgment of the Circuit Court, and the present appeal is prosecuted from such judgment of

affirmance.

The original action, for the alleged prosecution of which without probable cause the present action is brought, was begun by the defendant in error against the plaintiff in error on February 1, 1892, in the County of Kalamazoo, in the State of Michigan. The Michigan suit so begun by defendant in error against plaintiff in error was an action of trespass on the case, in which a declaration was filed by the Michigan Buggy Company, and a plea of not guilty by Smith. That action was tried in Michigan before the Court and a jury, and the jury returned a verdict in favor of the defendant therein (the plaintiff in error here). The Michigan Buggy Company, the present defendant in error, was a corporation organized under the laws of Michigan, having its place of business and principal office at Kalamazoo, in that State. From July, 1891, up to February 1, 1892, the plaintiff in error, Smith, had been in the service of the defendant in error, the Michigan Buggy Company, as a travelling salesman. By his contract of employment, the territory over which he was required to travel in order to sell the buggies and carriages manufactured by the defendant in error was the State of Illinois. The suit brought against the plaintiff in error by the defendant in error in Michigan was for the purpose of recovering damages for fraudulent representations alleged to have been made by the plaintiff in error to the defendant in error in order to obtain employment with it. The declaration in the Michigan action charged that the plaintiff in error had represented that during two years prior to his employment by defendant in error he had sold, while employed by another company engaged in manufacturing carriages, by the name of the Abbott Buggy Company, from $60,000 to $65,000 worth of buggies and carriages per year in each of said two years among his friends and acquaintances in Illinois. The declaration in that suit also alleged that the plaintiff in error had represented to the defendant in error that the persons among whom he had made such sales were his friends and acquaintances, and that he could control their trade, and turn it over to the defendant in error, if the defendant in error would employ him as requested, and that he furthermore represented that he was a first-class salesman in the line of the business in which the defendant in error was engaged, and that he could sell for the defendant in error as many buggies and carriages per year as he had sold for the Abbott Buggy Company during the two years in which he had been engaged in making sales for the last-named company. The declaration then charged that these statements and representations were false, that the plaintiff in error had not sold as many goods within the time stated as he represented, that he was not able to control such a trade as he represented that he could control, and that he was not such a first-class salesman as he represented

himself to be. It was also alleged in such declaration that through these representations the defendant in error had been induced to make a contract with the plaintiff in error, and to pay him large sums of money, and that the defendant in error had thereby suffered and sustained a great amount of loss, etc.

Smith, Shedd, Underwood, and Hall, for plaintiff in error. . ., An action on the case will lie for the malicious prosecution, without probable cause, of a civil action, irrespective of whether or not there has been any interference with the person or property of the defendant. In such an action actual damages are recoverable, and punitive damages in the discretion of the jury.

...

Meek, Meek, and Cochrane, for defendant in error. An action for damages will not lie where there has been no arrest of the person or seizure of the property. Gorton v. Brown, 27 Ill. 488. A mere suit, however malicious or unfounded, cannot be made the ground of an action for damages if the defendant or his goods be not seized. Kramer v. Stock, 10 Watts, 117; Meyer v. Walter, 64 Pa. 289. . . . It is not enough for the plaintiff to declare, generally, that the defendant brought an action against him ex malitia et sine causa per quod, and put him to a great charge, etc., but he must allege and show the grievance specially. MAGRUDER, J. (after stating the facts). The suit which was begun by the defendant in error against the plaintiff in error in Michigan was an ordinary civil suit, and resulted in favor of plaintiff in error. It is alleged in the declaration in the case at bar that the suit in Michigan was a malicious prosecution, and without probable cause. But it is not alleged or claimed that in that suit the plaintiff in error was arrested, ̧ or that any of his property was seized; nor does it appear that the plaintiff in error therein suffered any special damage, over and above the ordinary expenses and trouble which are attendant upon the defence of an ordinary civil suit. The question, therefore, which is presented in this case, and the only question which we deem it necessary to consider, is whether damages can be recovered for the malicious prosecution without probable cause of an ordinary civil suit, begun by personal service of process, and unaccompanied either by an arrest of the person or by seizure of property.

It is well settled that malicious prosecution is a proper action for the recovery of damages for the institution of a civil suit with malice and without probable cause, where the defendant is deprived of his personal liberty, or where there is an attachment or seizure of his property. But whether malicious prosecution will lie in such case in the absence of any interference with personal liberty, and in the absence of any seizure of property is a question upon which the authorities are very much divided.

The question above indicated has never been squarely decided in any case that has come before this Court. In Gorton v. Brown, 27 Ill. 489, it was held that an action could not be maintained for maliciously suing

out a writ of injunction. The conclusion reached in that case, however, was based mainly upon the ground that the party had a sufficient remedy upon the injunction bond given when the injunction was obtained, and that such bond was designed by the statute to cover the damages suffered by the party enjoined. But the drift of the opinion in that case was against the maintenance of an action for malicious prosecution without probable cause of an ordinary civil suit, unaccompanied by arrest or seizure of property. In Gorton v. Brown, supra, we said (page 493): "We are well aware that elementary writers and respectable courts have held that an action on the case will lie for an abuse of the process of the courts, where special damages are alleged, and against a party for prosecuting a causeless action, prompted by malice, by which the defendant has sustained some injury, for which he has no other recourse or remedy. Such actions, however, for the most part, are actions wherein arrests have been made, and bail demanded, or the party put to some other expense and inconvenience, which cannot be compensated in any other mode than by an action. Such actions, except where a malicious arrest is charged, are not favored by the courts, and ought not to be; for, in a litigious community, every successful defendant would bring his action for a malicious prosecution, and the dockets of the courts would be crowded with such suits."

The question here under consideration has been much discussed of late years in legal periodicals and in text-books, as well as in judicial decisions rendered by the Courts in many of the States. We have examined the discussions upon this subject with great care, and are inclined to hold in accordance with the intimation made in Gorton v. Brown, supra, that such actions ought not to be maintained.

An able discussion of this subject, and an extensive review of the authorities in relation thereto down to the year 1878, may be found in 21 Amer. Law Reg. pp. 281, 353. The articles there published were written by Mr. John D. Lawson. After his review of the cases, Mr. Lawson announces it as his own opinion "that, while the weight of authority denies the action, the weight of reason allows it." The conclusion announced by the author of these articles has been followed by Courts of last resort in several of the western and newly-created States. But, as the weight of authority denies the action, we, as a Court, feel it our duty to be governed by the weight of authority, rather than by the conclusion of any law writer, however able and ingenious his reasoning may be. The author of these articles, after giving the substance of the English and American decisions upon this subject, fairly and frankly states the following conclusion therefrom, before he announces his own judgment in opposition to such conclusion, to wit: "We have now reviewed all the American cases pro and con, and the weight of authority appears to be against the right of action for the unfounded and malicious prosecution of an ordinary civil action. With the majority are all but one of the text writers we have cited, Swift, Townsend, Addison, and the editors of the American Leading Cases, who follow the English adjudications; Mr.

Weeks, who limits the right to 'extremely vexatious suits, where special damage has been actually suffered'; and Judge Cooley, who discourages the remedy, without positively denying the right. On the other side is Mr. Hilliard, who evidently favors the action, but unfortunately relies upon cases which do not sustain it at all."

Another review of the authorities may be found in 41 Cent. Law J. p. 449. The learned author of the article on "Malicious Prosecution” in 14 Am. & Eng. Enc. Law, beginning on page 32, also refers to and states the substance of the cases on both sides of the question. It is there said:

"At common law the defendant in an action maliciously brought without probable cause has a right of action against the plaintiff in such action after its termination in favor of such defendant, and this regardless of whether the plaintiff had interfered with either the person or property of the defendant. But, after the enactment of the statute of Marlbridge, in the fifty-second year of Henry III, giving costs to successful defendants by way of damage against the plaintiff pro falso clamore, it came to be held that an action for malicious prosecution would not lie in civil actions, unless in cases where there had been arrest of the person, or seizure of property, or other special injury, which would not necessarily result in all suits prosecuted to recover for like causes of action. And this is the rule adopted by some of the courts of this country. The contrary rule, adopted by courts equal in number and respectability, is that an action can be maintained, where neither the person nor the property was seized, for damages accruing in suits brought maliciously and without probable cause.”

We prefer to adopt, as the sounder rule, the rule first stated in the passage last above quoted. We are of the opinion, and so hold, that an action for the malicious prosecution of a civil suit without probable cause will not lie where the process in the suit so prosecuted is by summons only, and is not accompanied by arrest of the person, or seizure of the property, or other special injury not necessarily resulting in all suits prosecuted to recover for like causes of action. This conclusion is sustained by the following authorities, to wit: Poots v. Imlay, 4 N. J. Law, 330; Bitz v. Meyer, 40 N. J. Law 252; Muldoon v. Rickey, 103 Pa. St. 110; Kramer v. Stock, 10 Watts, 115; Eberly v. Rupp, 90 Pa. St. 259; Mayer v. Walter, 64 Pa. St. 283; Wetmore v. Mellinger, 64 Iowa, 741, 18 N. W. 870; Smith v. Hintrager, 67 Iowa, 109, 24 N. W. 744; McNamee v. Minke, 49 Md. 122; Supreme Lodge v. Unverzagt, 76 Md. 104, 24 Atl. 323; Terry v. Davis, 114 N. C. 31, 18 S. E. 943; Ely v. Davis, 111 N. C. 24, 15 S. E. 878; Mitchell v. Railroad Co., 75 Ga. 398; Newell, Mal. Pros. § 32.

Those who favor the doctrine that the Courts ought to permit suits of this character to be brought and prosecuted urge in support of it the common-law maxim that for every wrong the law furnishes a remedy. It is said that, when a civil suit is maliciously prosecuted without probable cause, the defendant undergoes expenses, and suffers injury from loss of time, and often from loss of credit, and that these wrongs he

must endure without a remedy, if he cannot bring suit for damages for the prosecution of such malicious action. On the other hand, it must be remembered that the Courts are open to every citizen; and every man has a right to come into a court of justice, and claim what he deems to be his right, without fear of being prosecuted for heavy damages. If such actions are allowed, it might oftentimes happen that an honest suitor would be deterred from ascertaining his legal rights, through fear of being obliged to defend a subsequent suit charging him with malicious prosecution.

It is urged that the costs which are awarded to the successful defendant in a civil suit, malicious in its character, and brought against him without probable cause, are inadequate compensation for the injury which he suffers. But the question of the amount of costs which are to be allowed the successful party is a question to be determined by the Legislature, and not by the Courts. As was said by Chief Justice Kirkpatrick in Potts v. Imlay, supra:

"The courts of law are open to every citizen, and he may sue toties quoties upon the penalty of lawful costs only. These are considered as a sufficient compensation for the mere expenses of the defendant in his defence. They are given to him for this purpose, and he cannot rise up in a court of justice, and say the Legislature has not given him enough. If we were legislators, indeed, perhaps we should be inclined to say that the costs, in all cases where costs are given, should completely indemnify the party for all his necessary expenses, both of time and money; but those to whom this high trust is committed in this State have thought, and, we will presume, have wisely thought, otherwise."

Such ordinary trouble and expense as arise from the ordinary forms of legal controversy should be endured by the law-abiding citizen as one of the inevitable burdens which men must sustain under civil government. Muldoon v. Rickey, supra. In the case at bar there was introduced in evidence a transcript of the record of the action which was tried in Michigan. This transcript shows that a considerably larger bill of costs is allowed against the defeated party in a civil action in the State of Michigan than is allowed in the State of Illinois and in many of the other States. It appears from the defendant's bill of costs in the Michigan suit that the present plaintiff in error was allowed attorney's fees for services before notice of trial, after notice of trial, and during the trial, and upon continuance of the cause, and that he was furthermore allowed a reporter's fee and witness' fees on trial, including days and miles travelled by the plaintiff in error, and a witness who went to Michigan from Illinois to testify. The total taxation of costs in behalf of plaintiff in error in the Michigan suit was $74.70.

Those who favor this species of action also claim that, if the Courts refuse to allow such actions to be maintained, litigation will be encouraged, and causeless and unfounded civil suits will be apt to be brought. On the contrary, the danger is that litigation will be promoted and encouraged by permitting such suits as the present action to