McLeod v. McLeod

SOMERVILLE, J.

— Where several parties sue jointly as plaintiffs, it is a plain principle that coll must be entitled to recover in the action, or none can be permitted to do so. If any one of the several plaintiffs is incompetent to sue, or the evidence sustains the action only as to one or more, and not as to the others, the whole action must fail. The only remedy of the parties plaintiff in such case is to amend the complaint by striking out the names of such as have no cause o;f action. Hardeman v. Sims, 3 Ala. 747 ; Cochran v. Cunningham, 16 Ala. 448 ; Walker v. Fenner, 28 Ala. 367 ; Hutton v. Williams, 60 Ala. 107 ; 1 Chit, on PI. 54; Waterman on Tresp. § 986 ; Code, 1876, § 3156. The ruling of the court below holding otherwise, was erroneous.

The rule is, furthermore, an elementary one, that where there is no community of interest, parties can not join as co-plaintiffs in any action. In all actions for injuries to the person, as assault, false imprisonment, malicious prosecution, and the like, each person injured must sue separately for the wrong or tort which he has sustained or suffered. The tort done the one is not the same as the tort done the other, but is several and distinct. The right of action, in all such cases, must, of necessity, be several, and not joint. — Diecy on Parties, 401, [381] ;. Coryton v. Lithebye, 2 Wins. Saund. 117 a; 2 Brick. Dig. 338, § 12S. The present being an action for malicious prosecution, instituted against- the defendant by three co-plaintiffs suing jointly, there was a clear misjoinder of parties plaintiff.

It may be now considered as well settled, that an action for malicious prosecution will not lie, unless it be shown by the plaintiff, among other things, that he w7as prosecuted through the agency of the defendant, riot only maliciously, but also- ■without probable cause. Neither of these elements alone will do, but both must concur to make the defendant liable. — 2' Greenl. on Ev. § 453. Probable cause, in this connection, is defined by Mr. Greenleaf to be “ such conduct on the part of the accused as may induce the court to infer that the prosecution was undertaken from public motives.” — 2 Greenl. on Ev. § 454. It has been said by a learned judge to be “ such a state of facts, in the mind of the prosecutor, as would lead a man of ordinary caution and prudence to believe, or entertain an honest and *46 strong suspicion, that the person arrested is guilty.”- — Per Shaw, C. J., in Bacon v. Towne, 4 Cash. 238; Barron v. Mason, 31 Vt. 189 . And the grounds of belief must-be such as “would influence the mind of a reasonable person,” nothing less than this being sufficient to justify a serious and formal charge against another. — Cooley on Torts, 182. It matters not how causeless in fact may have been the prosecution, if the defendant acted in good faith and 'without malice in preferring the charge, this is a full defense to the action. Hence, it has often been held, and is the established doctrine of this court, that a defendant in an action for malicious prosecution “ may rebut the-presumption of -mal ice, arising from the want of probable cause, by proof of his having first obtained the cidvice and opinion of counsel in respect to the plaintiff’s liability to the prosecution, and of his action under that advice.” — Leaird v. Davis, 17 Ala. 27, 29 . Mr. (Ireenleaf seems to base the relevancy of evidence as to the advice of counsel upon the idea that it goes to establish, the fact of probable cause, rather than to rebut the inference of malice arising from the absence of such cause; but whichever view be correct, it is now generally agreed that if a full and fair statement of all the facts be made to learned legal counsel, and the defendant has honestly acted on such advice, this furnishes a complete defense to the whole action, and is not limited to a mitigation of damages merely. Leaird v. Davis, 17 Ala. 27 ; McPherson v. Chandler, 11 Ala. 916 ; Cooley on Torts, 183-184; 2 Greenl. on Ev. § 459; Walter v. Sample, 25 Penn. St. 275. Of course the advice of counsel obtained mala, fide will avail nothing, when it is resorted to as a mere shelter to cover up a previously fixed determination to make the arrest in question, (Ross v. Junis, 26 Ill. 259 ); nor would it be competent to rebut the existence of actual or express malice.- — 2 Greenl. on Ev. § 459; Stevens v. Bassett, 14 Shepl. 266.

The evidence in this case showed that the defendant, before he procured the arrest of the plaintiffs, acted under legal advice, and that he laid before his adviser certain facts which are im, proof. The defendant testified that “ he had made & full- and, fair statement of all the facts to his attorney.” The court properly charged the jury that the advice was admissible, but that they must judge for themselves whether the statement was full and fair, the allegation of the defendant to that effect not being sufficient. It was mere matter of opinion, and nothing more. The facts of the case and those laid before the attorney were all in evidence, and the comparison was one for the jury, and not for the witness.

The prosecution upon which the present action for damages is based, was one for trespass after warning, under section 4419 *47 of the Code of 18'76. As was said in Watson v. The State, 63 Ala. 19, 23 , this “ statute is intended for the protection of the possession of real estate against the entry of intruders or trespassers; and it can not be made to serve all the purposes of an action of trespass gucvre clausum fregit, nor converted into an action of ejectment, in which the title and right of possession may he determined.” If the plaintiffs, therefore, were in actual possession of any portion of the land, claiming title thereto, either adverse or permissive, as against the appellant, they could not he lawfully prosecuted for continuing their occupancy after a warning not to do so. The statute does not cover cases of this character. And while it is true that such a case would not constitute probable cause for a prosecution under the above statute (§ 14:19, Code), yet, if the facts were fairly and truthfully stated to counsel, and the advice to prosecute was honestly followed, the evidence touching these points, as we have above shown, would be competent to rebut the presumption of malice arising from a want of probable cause. And the court, in effect. so charged the jury.

For the error, however, first above considered, .the judgment must be reversed and the cause remanded.