¶1delivered the opinion of the court.
¶2The only question presented for decision is as to whether there was error in overruling plaintiff’s demurrer to the defendants’ plea of the statute of limitations. The determination of this question involves mainly the consideration as to whether the original declaration states a cause of action, and secondly, as claimed by appellant’s counsel, the filing of pleas of the general issue thereto admitted its sufficiency, so that the appellees can not now be heard to claim that the original declaration did not state a cause of action.
¶3It seems too plain to require the citation of authority to establish the proposition, that any plea to a declaration, which fails to state a cause of action, can supply such defect. The following, however, may be cited : Reeves v. Forman, 26 Ill. 318; Phelps v. I. C. R. R. Co., 94 Ill. 548-54; I. C. R. R. Co. v. Campbell, 170 Ill. 163; Gould on Pldg., 441, Sec. 36.
¶4The case of By. Co. v. Warner, 108 Ill. 538, cited in support of appellant’s contention, fails, in our opinion, to sustain it. In that case the declaration was held to be “ clearly sufficient after verdict ”—was not where the declaration failed to state a cause of action, as here.
¶5As to whether the original declaration states a cause of action, there is some doubt under the authorities. Appellant relies in support of the original declaration upon a citation from 2d Addison on Torts, p. 77, and on two Illinois cases, viz.: Israel v. Brooks, 23 Ill. 575, and Shoonover v. Myers, 28 Ill. 312. The language from Addison is as follows: “A conviction of the plaintiff, By a magistrate, so long as it has not been reversed on appeal, affords a conclusive answer to the charge that the complaint or information which led to it was founded in malice, and was preferred without reasonable or probable cause,” and is a correct statement of the law as far as it goes, but is insufficient to sustain appellant’s contention. We have examined the authorities cited by the author in support of the text, and find that they support his statement, but not the inference sought to be made, namely, that when there has been a reversal on appeal, the conviction is not conclusive. A review of them is unnecessary.
¶6The case of Israel, supra, does not decide the point here under consideration, but only that when one charged with crime is discharged by a magistrate, such discharge is not l)rima faoie evidence of a want of probable cause for the prosecution. Mor does the Schoonover case decide the point, but only that where an accused is brought before the magistrate and waives examination and voluntarily gives bail for his appearance to the Circuit Court, he is not thereby precluded from saying that the prosecution was maliciously instituted.
¶7The decisions of the courts incline toward an encouragement of criminal prosecutions when they are instituted in good faith, without malice, and for the purpose of punishing violators of the law, and for that reason suits for malicious prosecution are not favored and have been critically examined. Reynolds v. Kennedy, 1 Wilson, 232; McBean v. Ritchie, 18 Ill. 114; Hurd v. Shaw, 20 Ill. 354; Israel case, supra; Barrett v. Spaids, 70 Ill. 408; Angelo v. Faul, 85 Ill. 106; Adams v. Bicknell, 25 N. E. Rep. 804 (Ind. 1890); Albers v. Merchants’ Ex. of St. L., 138 Mo. 140 (1897).
¶8It is not, however, a plausible position to assume, that if the discharge of a person charged with crime is not prima facia evidence of the want of probable cause for the prosecution, as held in the Israel case, sttpra, the converse of that proposition should also be true, namely, that his conviction should not be conclusive evidence of probable cause for his prosecution. The authorities, however, bearing upon the latter proposition, answer it • in the negative, with few exceptions.
¶9As seems to have been held by the learned trial judge, the weight of authority establishes the following in substance, to wit: That when a justice of the peace has jurisdiction to render final judgment in the examination of a criminal charge, and is not simply a committing magistrate, when the hearing is fair, without fraud, and the testimony for the prosecution free from perjury and results in the conviction of the defendant, such conviction is conclusive on the question of probable cause for the prosecution, though on appeal the defendant may be acquitted. Reynolds v. Kennedy, 1 Wilson, 232: Whitney v. Peckham, 15 Mass. 243; Parker v. Parley, 10 Cush. 281; Griffis v. Sellars, 2 Devx. & Batt. (31 Amer. Dec.) 492; Bitting v. Ten Eyck, 82 Ind. 424; Adams v. Bicknell, 126 Ind. 211, and cases cited; Welch v. R. R. Co., 14 R. I. 609; Boogher v. Hough, 99 Mo. 183; Burt v. Place, 4 Wend. 591; Adams v. Bicknell, 25 N. E. Rep. (Ind.) 804; Olson v. Neal, 63 la. 216; Livestock Co. v. Butchers’ Union, 120 U. S. 141, and cases cited; Cooley on Torts, 2d Ed., p. 214, and cases cited.
¶10Mr. Cooley states the rule thus broadly, p. 214, supra:
t£ If the defendant is convicted in the first instance, and appeals, and is acquitted in the appeal, the conviction below is conclusive of probable cause.”
¶11The Griffis case, supra, seems to have been thoroughly considered, and sustains the statement of Mr. Cooley. The Indiana cases, as also the later decisions, including Rhode Island, modify the rule as stated by Judge Cooley to the extent that conviction, in the first instance, is conclusive on the question of probable cause, unless it was obtained by unfair means, fraud or false testimony.
¶12The Livestock Co. case, supra, seems to have been thoroughly considered, the court being unanimous. After quoting from Payson v. Cassell, 22 Me. 212-16, viz., “If there be a conviction before a magistrate having jurisdiction of the subject-matter, not obtained by undue means, it will be conclusive evidence of probable cause,” the court say:
“ This seems to reconcile the apparent contradiction in the authorities and states the rule which we think to be well grounded in reason, fair and just to both parties, and consistent with the principle on which the action for malicious prosecution is founded.”
¶13Following are some of the reported cases which hold that a commitment by, or conviction before the justice is only prima faoie, and not conclusive evidence of probable cause. Bauer v. Clay, 8 Kas. 580-5; Ewing v. Sanford, 19 Ala. 605-9; Ricord v. R. R. Co., 15 Nev. 167-80; Hale v. Boylen, 22 W. Va. 234-41; Bacon v. Towne, 4 Cush. 217-36; Gannea v. R. R. Co., 51 Calif. 140; Deimer v. Herber, 75 Calif. 287.
¶14Most of these are cases where the jurisdiction of the magistrate was merely for purposes of examination and commitment to the grand jury.
¶15In the absence of a direct decision of the question by our Supreme Court, we feel constrained to follow what seems to us the weight of authority and the more reasonable rule, and therefore hold that the original declaration fails to state a cause of action, in that it shows that the justice heard the evidence in the cause, it being a matter of which he had final jurisdiction, and found that the plaintiff was guilty of the offense charged against him, and contains no allegation that the conviction was brought about by unfair or fraudulent means or by false or perjured testimony.
¶16The original declaration failing to state a cause of action and the amended declaration having been filed more than two years after the cause of action accrued, the demurrer to the plea of the statute of limitations was properly overruled. Eylenfeldt v. Ill. Steel Co., 165 Ill. 187.
¶17The judgment of the Circuit Court is therefore affirmed.