delivered the opinion of the Court.
This is a suit for malicious prosecution. The charge is that appellant, maliciously, and • without probable cause, procured the arrest and prosecution of appellee for larceny and embezzlement.
There were two indictments presented by this grand jury. One of these was nolled by the state’s attorney for somé informality, and another presented to take its place. Appellee was tried and acquitted upon both. He then brought this suit for malicious prosecution and recovered judgment for §1,200 damages.
The case against appellant is based upon the allegation that one Schultz, as agent of appellant, procured the indictment and prosecution of appellee, and that appellant is liable for his acts as such agent. Schultz was a traveling freight agent. There is no evidence that he had authority to institute or prosecute criminal proceedings. Both Sutton and Bayley, superintendents of the road, testify that so far as they knew he had not. Bayley testifies that “ the superintendent has entire charge of the division as to transportation matters, and everything that occurs upon the division is supposed to be under his supervision.” There is no evidence that appellant adopted or ratified what Schultz did. He was an agent to look after lost or missent freight. If, then, appellant, as principal, is liable for his acts, it must be because they came within the apparent scope of his authority as agent. This can not be proved by Schultz’s declaration. Agency can not be shown by the statements of the agent. Greenleaf on Ev., Sec. 113.
“Agency can not be proved by the declarations themselves, no matter how publicly made.” Jones on Ev., Sec. 359, and authorities cited. If this judgment is sustained, it *24must- be upon the declaration of Schultz, admitted in evidence.
This is apparent from the' uncontradicted testimony of Gillespie, the state’s attorney, who conducted the prosecution. ■
His testimony is to the effect that neither appellant nor Schultz procured the indictment of appellee, or knew that he ivas implicated until after the indictments were presented by the grand jury.
Freight had been missing at Tunnel Station, and after some investigation Schultz reported to the state’s attorney, Avho caused a warrant to issue for one Jones, the station agent at Tunnel. After Jones’ arrest, and while in jail, he sent for the state’s attorney, made confession of his guilt, and in it implicated appellee, who was a freight conductor on the road. The state’s attorney sent Jones before the grand jury, and upon his testimony, and the testimony of other witnesses whose names are not disclosed in the record, appellee was indicted.
In reference to these matters the state’s attorney testifies :
Q. I want a direct ansAver to the question whether the defendant company had anything to do with procuring either of these witnesses to go before the grand jury. A. They did not—nothing whatever.
Q. Up to the time that Jones.made his confession and statement to the grand jury, did you know anything about Jenkins (appellee) being implicated? A. Ho, sir.
Q. Had Mr. Schultz charged Jenkins with being implicated in the transaction? A. Ho, sir, he made no such charge to me at all.
Q. I notice the name of Mr. Schultz appearing upon the back of the indictment; Avho placed it there ? A. I did. -
Q. By whose authority? A. I did it by my own authority.
Q. State to the jury whether ór not in the further prosecution of these cases you did it upon your own responsibility as state’s attorney of Johnson county ? A. Tes, sir, I did.
*25Q. State whether or not the defendant railway company, either directly or indirectly, had anything to do with instigating or carrying on this indictment or either of these indictments found there 2 A. It had not. I had nothing to do with any of the railroad company’s agents, except Hr. Schultz. I had some correspondence with Mr. Bayley about this matter, and had some correspondence with Mr. Sutton.
Q. Did you require them to do anything about it ? A. I simply required them to furnish me with a list of the property lost from the freight cars and other facts within their knowledge.
Q. * * * These other indictments as well as the first one, you sa)’- you carried on and prosecuted under your official duty as state’s attorney of Johnson county 2 A. I did.
Q. And without any suggestion or interference upon the part of the defendant railway company 2 A. Yes, sir.
The state’s attorney further testifies that after the indictment he made inquiry of Schultz in reference to the case, and that at his request Schultz sat beside him at the trials, to give him information as to witnesses, Schultz having traced the lost freight and having a memorandum from which he gave information. Upon cross-examination of the state’s attorney by counsel for appellee he asked:
Q. Whether or not Schultz knew or intimated that Jenkins had been implicated in the matter 2 A. No, sir.
The importance, then, of restricting the declarations of Schultz within well defined rules of evidence is apparent.
In Jenks v. Burr, 56 Ill. 450, the court says: “ Before the declaration of an agent can ever be admitted as evidence, it must appear that at the very time of making the declaration, he was transacting or doing something about the business of his principal, so that his acts and declaration become and form of themselves a part of the res gestae.”
In Michigan C. R. R. Co. v. Gougar, 55 Ill. 503, the court cites with approval from Luby v. Hudson R. R. R. Co., 17 N. Y. 131, as follows :
*26“ The declarations of an agent or servant do not in general bind the principal. To be admissible, they must be in the nature of original, and not hearsay evidence. They must be made not only during the continuance of the agency, but in regard to a transaction depending at the very time.’ Chicago, B. & Q. R. R. Co. v. Lee, 60 Ill. 501; Greenleaf on Evidence, Sec. 113; Jones on Evidence, Sec. 25 c.
Against the objection of appellant, a deposition of J. II. McLaughlin was read for appellee. In it he stated that “in April or May, 1894, at Evansville, in the evening, in front of the Wellington hotel, Schultz told me that the Big Four would send Jenkins to the penitentiary if it cost them ten thousand dollars, and that Jenkins could not railroad any more, even if he got out of it; I think—am almost positive—that Schultz told me that the Big Four Company will follow Jenkins up with his record, and that he would not be able to hold a job any longer than they knew where he was.”
So far as the record discloses, this conversation was not had while Schultz ■ “ was transacting or doing something about the business of his principal.” It was in no sense a part of the res gesta. It was a conversation on an evening, in frtint of a hotel. Its admission was manifest error, and the evidence was of a character to prejudice the jury against appellant.
The same objection applies to the admission of the testimony of appellee as to what Schultz said to him at Mt. Carmel, in March or April, 1894. “ He told me that I was going to the pen.” I says “ Why ? ” He says, “ You are taxed with this stealing down here and I have the tracks on you pretty strong. You might as well go down and plead guilty and take a year, because you can’t do anything, any place, anywhere.” He said that the “Big Four” would spend fifteen or twenty thousand dollars to send me to the “ pen.” I kind of laughed and told him he was joking and he says, “ You’ll find out.” From a careful examination of the record, we do not think that it sufficiently appears that Schultz was engaged in the busi*27ness of the company at the time of this conversation to make this testimony admissible. It seems that he was on his way to Belknap; when he expected to reach there, does not appear. What he was doing at Mt. Carmel, how long he had been there, or how long he expected to stay, or where at Mt. Carmel the conversation took place, is not shown. It might have been at a street corner, or in a saloon, or at any indifferent place at which idle conversation was indulged.
The testimony is of a very material character. It is sought by it to charge a principal by the talk of his agent. It ought clearly to appear that it was a part of the res gestee; that the age nt was there attending to the business of bis principal, and that this business was the prosecuting appellee.
Counsel for appellant insist that the introduction of the record showing the acquittal of appellee was error, citing Skidmore v. Bricker, 77 Ill. 164.
There was no general objection made at the trial to the introduction of the record of acquittal. The objections were technical, namely, that the record was not complete.
We construe the decision in the case above cited to be, that the record of acquittal is only competent to show the termination of the prosecution, and that no inference of “ want of probable cause ” can be drawn from it, and that its general admission without limitation is error.
“ The acquittal of a defendant upon the trial of a criminal charge affords no evidence that such charge was preferred without probable cause.” Text. Am. & Eng. Ency. Law, Vol. 14-65; Griffin v. Chubb, 7 Texas, 614; Heldt v. Webster, 60 Texas, 207.
“ To presume that every person who has been acquitted by a verdict was prosecuted maliciously, would not only be unreasonable and false, but subversive of justice. * * * Such a consequence could not be admitted as the law of the land, and hence the verdict of acquittal is no evidence of malice or of the want of probable cause for the prosecution.” Garrard v. Willet, 4 J. J. Marshall (Ky.), 630.
*28The effect that a verdict of acquittal is liable to have upon a jury, when read without limitation, was doubtless the reason for the decision in Skidmore v. Bricker, 77 Ill. 164.
It is urged that the first, second and fourth instructions as given for appellee are bad in not defining probable cause. “ Probable cause may be said to be a mixed question of law and fact. After the facts are given in evidence, it is for the court to say, in its, instructions to the jury, whether or not they make up probable cause.” Israel v. Brooks, 23 Ill. 575.
“ Whether the facts proven in an action constitute probable cause for commencing a criminal proceeding against a party charged has always been regarded as a question of law.” Angelo v. Paul, 85 Ill. 106; Wade v. Walden, 23 Ill. 425.
Such being the law, the court should have so defined probable cause or instructed the jury as to what facts or circumstance, if proven, constitute probable cause, as to have enabled the jury to apply the law to the facts. As instructed they were left without guidance to pass upon questions of both, law and fact.
For the reasons stated, the judgment is reversed and the case remanded.