73 Ala. 42 | Ala. | 1882
— 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
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
For the error, however, first above considered, .the judgment must be reversed and the cause remanded.