
    EWING vs. SANFORD.
    1. In actions for malicious prosecution, two things are essential to be established by the plaintiff: first, the absence of all probable cause for such a prosecution on the part of the defendant; and secondly, that the pi-oseeution was malicious.
    2. The defendant may successfully defend, by showing either that there was probable cause for the prosecution, or, admitting that there was not probable cause, that he had not been actuated by what the law terms malice.
    3. Ho matter how far a man may be impelled by malice, in prosecuting another on a criminal charge, the law, from motives of public policy, will hold him harmless, when sued for a malicious prosecution, provided ho can show probable cause.
    4. On the other hand, if he cannot show probable cause, the law will imply malice from the absence of probable cause, unless he can show, by way of repelling this implication, that such facts and circumstances existed, as, although not amounting to probable cause, were calculated to produce at the time, in the mind of a prudent and reasonable man, a well grounded belief or suspicion of the party’s guilt; and that he was not, therefore, actuated by malice, in commencing the prosecution.
    5. The refusal to give a charge in the precise language asked by counsel, is not error, provided the charge that is given is a full and fair exposition of the law,
    6. B. prosecuted S, for stealing a slave, which S. afterwards recovered from B. in an action at law; and after the termination of the prosecution, S. brought an action on the ease for malicious prosecution against B- It was held:
    
    That the record of the suit for the recovery of the slave was admissible evidence for the plaintiff
    
      1. In case for malicious prosecution, it was consented, at the close of the trial, that the clerk might receive the verdict; during the recess of the court, the jury returned their verdict to the clerk as follows: “We, the jury, find for the plaintiff, and assess his damages at $2,500,” and requested him to have it put in proper form by the court, if it was not correct, after which they were discharged for the day, and separated; the jury were in court the next morning, and renewed their request to the court, whereupon the court, against the defendant’s objection, directed the verdict to be entered in proper form. Held:
    
    That there was no error in the alteration of the verdict.
    Error to tbe Circuit Court of Mobile.
    Tried before tbe Hon. Lymah GibboNS.
    Tbis was an action for a malicious prosecution brought by Sanford against Ewing. Tbe prosecution instituted by Ewing against Sanford, was for tbe larceny of a slave, a woman named Eliza.
    Tbe evidence of tbe cause showed, that tbe negro woman Eliza bad been levied upon as tbe property of T. Sanford. James Sanford, tbe plaintiff, was present at tbe sale, and forbid tbe sale, and gave notice that be should claim and bold tbe said slave, as bis property, notwithstanding tbe sale. Tbe defendant bought tbe slave at said sale, and placed her with one Oarmelick. Plaintiff got her out of tbe possession of Oarmelick without violence.
    Defendant consulted several attorneys, before ho made tbe oath for tbe arrest of tbe plaintiff on the charge of larceny, and, by most of them, be was dissuaded from making tbe oath, though, as to tbe counsel given him by one of tbe attorneys, tbe testimony was conflicting.
    Tbe plaintiff was committed to prison on tbe charge by a justice of tbe peace, and was discharged tbe next day, on habeas carpus, by a Judge of tbe Circuit Court.
    A. McKinstry, Esq., an attorney at the time tbe affidavit was made by defendant, and who bad been consulted by him, was asked by defendant, on cross-examination, “if be did not tell tbe defendant that tbe plaintiff bad no title to the negro, and that she was subject to tbe execution under which she was sold? ” Tbe witness answered affirmatively. To rebut this evidence, and to show that tbe plaintiff had title to said slave, the plaintiff introduced tbe record and judgment of a suit in tbe Circuit Court by plaintiff against tbe defendant for this slave, in which plaintiff recovered, which judgment was rendered subsequent to tbe arrest, and after tbe slave bad been delivered by tbe justice to tbe defendant. To tbe admission of this record, defendant excepted.
    Testimony was introduced by defendant, conducing to show that tbe slave was not tbe property of tbe plaintiff at tbe time of tbe sale, but was then subject to tbe execution against T. Sanford. He proved that plaintiff refused to make claim, and give bond for tbe trial of tbe right of property under tbe statute, and that tbe slave was found at tbe house of tbe plaintiff after she was taken from tbe possession of Car-melick. He also introduced evidence conducing to show that be was advised to tbe course be pursued in making tbe affidavit by competent legal counsel, to whom tbe facts and circumstances of tbe case were fully stated. There was, also, testimony that be was dissuaded by other counsel.
    Tbe court, after giving certain instructions to tbe jury, on tbe subject of malice and probable cause, and tbe measure of damages, was requested, by tbe counsel for tbe defendant, to instruct the jury as follows: “That if defendant believed, at tbe time be made tbe affidavit, that tbe conduct of Sanford, forming such ground of accusation, amounted to tbe offence charged, then this action cannot be sustained, and they must find for tbe defendant.” This tbe court refused as asked, but gave it with this qualification, “ that if they found that tbe de* fendant, not being a lawyer, bad first advised with a lawyer, and, on a fair and honest statement of the facts to him, be bad founded bis belief upon tbe counsel or advice tbe lawyer bad given him, then, if be believed the facts amounted to a larceny, be would be justified, and the plaintiff could not recover.” To tbe refusal and to tbe charge as given, defendant excepted.
    Counsel for defendant further asked tbe court to charge: “ That although Ewing, in this action, may not be able to sbow probable cause for prosecuting Sanford, or Sanford may show a state of facts from which the want of it is inferable, yet, if the defendant acted under an honest belief that the plaintiff was guilty of the offence charged, plaintiff cannot recover.’' This the court refused, but gave it with the same qualification as the last.
    The court was asked to charge: “That if the jury found that the magistrate, before whom the plaintiff was brought, upon hearing the evidence pro and con, bound over the plaintiff to answer the charge on which he was arrested, that this was prima fade evidence of probable cause.” This the court refused.
    One charge given by the court was in these words: “If they (the jury) found that the defendant had prosecuted the plaintiff without probable cause, and with malice, either express or implied, then the plaintiff was entitled to a verdict, and the defendant was guilty as charged; and the jury must make him pay for the wrong he has done.”
    The parties consented, at the close of the trial, that the clerk might receive the verdict. It appeared that the jury, during the night, had rendered to the clerk the following verdict: “We, the jury, find for the plaintiff, and assess his damages at $2,500,” and had made of the clerk a request that the same might be j>ut in proper by the court, if it was not so. The next morning the jury were in court, and renewed the request to the court. The defendant’s counsel objected, that there was no such verdict as would authorize a judgment against the defendant; but the court directed the clerk to alter the verdict so as to make it read as follows: “ We, the jury, find the defendant guilty, and assess the damages at $2,500,” defendant’s counsel objecting. It appeared that the. jury, after rendering their verdict the night before, had been discharged for the day, and separated.
    The charges aforesaid, and the refusal to charge as requested, and without qualification, and the alteration of the verdict aforesaid, are assigned for error.
    Boyles, for plaintiff in error:
    1. McKinstry was asked by defendant’s counsel, whether he, as the professional adviser of Ewing, did not tell him, before tbe arrest was made, tbat James Sanford bad no title whatever to tbe’negro woman, Eliza; to wbieb be replied, tbat be did. This was entirely competent, as tending to rebut tbe presumption of malice, and Avas elicited for no other purpose. To rebut this evidence, tbe court permitted tbe plaintiff to read to tbe jury tbe record of tbe suit bad between tbe parties subsequent to tbe arrest, for tbe recovery of tbe slave. This testimony Avas Avbolly irrelevant, and calculated to mislead tbe jury, and should have been excluded. 1 Saunders’ PI. and Ev. 491; 1 Dana, 14; 3 Peters, 320; 4 Litt. 272; 11 Mass. 140; 7 S. & E. 156.
    2. Tbe court erred in tbe charges given and refused. If tbe magistrate before whom tbe plaintiff was brought, after bearing all tbe evidence pro and cora, bound him over to appear at tbe Criminal Court to ansAver tbe charge, this was prima facie evidence of probable cause; and tbe court should have so charged, on defendant’s request. 4 Wend. 591; 4 Munf. 462 ; 14 Maine, 362; 22 ib. 212; 2 Dev. & Bat. 492; 15 Mass. 243, and cases there cited. Tbe next two charges requested by defendant’s counsel, should have been given as asked. They are in tbe precise language employed by this court in 11 Ala. 916; which Avas re-affirmed in 17 ib. 28. Grood faith and an honest belief imply tbe absence of malice. 17 Ala, 28; 19 ib. 321; 1 Mees. & W. 583; 1 Hals. 166; 2 Munf. 23; 6 Bing. 183; 4 Ired. 382; 5 S. & E. 438.
    3. Tbe court erred in altering tbe verdict after tbe jury bad been discharged. 7 Por. 218; 6 Mass. 1; 10 Sbep. 316; 3 Ala. 359; 1 Mis. 401; 1 Stew. 36; 1 Branch, 189; 3 Blackf. 256; 11 Ohio, 482; 7 Hals. 252. After a verdict is received and recorded, and tbe jury dismissed, they cannot alter it on tbe ground of mistake. 16 S. & E. 414; 1 Texas, 50; 9 Ired. 28; 2 Greenl. 37, and cases there cited.
    JOHN A. Campbell, contra:
    
    1. Tbe judgment for Sanford against Ewing Avas competent in every aspect of tbe case.
    Sanford declares that tbe accusation Avas false. Tbe proof tbat tbe slave Avas bis, establishes tbe allegation.
    2. Tbe first charge asked, Avbicb is complained of, makes tbe belief of EAving tbe criterion upon Avbicb an accusation is to be founded. If be believes it, according to this prayer, tbat is enough. No authority goes to the extent.
    3. The next charge, which only differs from the other, makes it depend upon the honesty of the belief. An honest belief is a very equivocal term.
    The law is, that probable cause must exist, and without it, malice is to be inferred.
    4. Now, malice is to be rebutted by proof that the party adopted all the precautions which prudent men adopt before performing an act of responsibility, viz: taking counsel of competent men, who, upon hearing all that he has said, have advised his proceedings. If he has not done this, his act is hasty, ill considered and tortious, and, therefore, malicious-His hasty, ill considered and tortious act is, in point of law, malicious. The act has been shown to be without probable cause; that is, without a reasonable foundation. Here is evidence of hurry, inconsiderateness, recklessness and improvidence.
    In the case before the court, there is a distinct finding by the jury that he did not act under, but against the advice of counsel. This finding is conclusive upon the subject of malice. This was a direct issue, as is shown by the evidence.
   PHELAN, J.

— It nowhere appears that the charge of the judge, in which he told the jury, that if they found the defendant guilty as charged, “ they must make him pay for the wrong he had done,” was excepted to. There is nothing in these words but a sound principle, at all events. The counsel commented on the manner of the judge saying it was angry and menacing. There is nothing in the bill of exceptions or in the words themselves, that gives any indication that the manner of the judge was wanting in moderation or propriety, if we even had power to take notice of that.

The court was requested to charge, “ that if defendant believed at the time he made the affidavit that the conduct of Sanford, forming such ground of accusation, amounted to the offence charged,” they, the jury, must find for the defendant.

In actions for malicious prosecution, two things are essential to be established by the plaintiff: 1. The absence of all probable cause for such a prosecution on the part of the de-fendan ; 2. That the prosecution was malicious.

The defendant may successfully defend, by showing, either that there was probable cause for the prosecution, or, admitting that there was not probable cause, still, that he had not been actuated by bad motives, or what the law terms malice.

Wherever, in actions of this class, the defendant, although unable to show a state of facts sufficient to establish the truth of the accusation which was preferred against the plaintiff, is nevertheless able to bring forward such a state of facts and circumstances, as were calculated to induce, in the mind of a reasonable and prudent man, a well-grounded belie t of the guilt of the party, this will be sufficient for his protection. To hold men to more than this, would so greatly discourage prosecutions, that the public good would suffer for the want of seasonable cooperation upon the part of private individuals, in aid of the public authorities, in suppressing crime.

Malice is either express or implied; express, when evinced by threats, old grudges, &c.; implied, when we can find no good or justifiable motive for an act calculated to do harm to another. When we can find no good or justifiable motive for an act calculated to do injury to another, we imply necessarily a bad motive, or malice.

No matter how far a man may be impelled by malice in prosecuting another on a criminal charge, provided he can show probable cause, the law, from motives of public policy, will hold him harmless, when sued for a malicious prosecution.

On the other hand, if ho cannot show probable cause, the law will imply malice, from the absence of probable cause, unless he can show, by way of repelling this implication, that such facts and circumstances existed, that, although not amounting to what is called probable cause, they were calculated to produce at the time, in the mind of a prudent and reasonable man, a well-grounded belief or suspicion of the party’s guilt, and that he was not, therefore, actuated by malice, in commencing the prosecution.

In Chandler v. McPherson, 11 Ala. 916, the court say, that “if the defendant acted under an honest belief that the plaintiff was guilty of the offence with which he was charged, no recovery can be had against him.” In the subsequent case of Long v. Rodgers, 19 Ala. 321, this honest belief is explained, and declared to be, not “ a belief founded in the caprice, prejudice, or idle dreams of tbe prosecutor, iu tbe absence of all facts and circumstances wbicb would generate sucb suspicion of guilt in tbe mind of a reasonably prudent man,” but a belief founded on facts and circumstances wbicb, although not amounting to probable cause, would yet induce, in tbe mind of a reasonable and prudent man, so serious a suspicion of tbe ¡carty’s guilt, as to repel effectually tbe idea that be acted from malice in prosecuting hnn. See also, Ewing v. Sanford, 19 Ala. 605. Tbe charge requested of tbe court falls short of this, by making tbe belief of tbe party alone, without further qualification, sufficient to exonerate him, and for that reason tbe court acted properly in refusing it. ' Tbe charge that was given by tbe court as qualified, was going fully as far as the law would justify in favor of tbe plaintiff.

Tbe refusal to give a charge correct in itself, in tbe precise words requested by counsel, is not error, if tbe charge given by tbe court on tbe point in question is a full and fair exposition of tbe law. A charge, correct in itself, may mislead a jury sometimes for want of fullness, simplicity or clearness of expression. It is true, a court may, and commonly ought, to give a charge wbicb is correct in itself, though liable to any of these objections, in tbe very words that are proposed, and then add explanations afterwards. But this court has bolden in a late case, and after careful consideration, that it was not error to refuse to adopt tbe very words of tbe counsel, provided tbe charge that was given was a full and fair exposition of tbe law; and that decision will be followed. Long v. Rodgers, 19 Ala. 321.

Thus, tbe charge that was asked, in wbicb tbe court was requested to instruct tbe jury, that an “honest belief” of Sanford’s guilt on the part of defendant, even in tbe absence of proof of probable cause, would be sufficient to excuse him, may be, strictly speaking, correct, if we interpret tbe word “honest” according to tbe signification put upon it in 19 Ala. 321. But tbe court was not bound to give it as tbe counsel asked it. It did not really contain within itself an instruction calculated to enlighten the jury fully. Had it been given as tbe defendant asked it, tbe court would have been bound, in order to prevent a probable misapprehension, to have gone on. and explained wbat was meant by an bonest belief.

After having just before given an elaborate and correct charge on the subject of malice and probable cause, fully explaining and setting forth the principles of law applicable to the case, which the defendant suffered to pass without exception, the court was requested by the counsel for the defendant, to charge the jury, that if the magistrate, on the trial of the warrant, bound over the defendant to answer the charge, that this was prima facie evidence of probable cause.” This charge the court refused to give.

In view of the proof of the cause, and the charge already given, the court properly refused to enunciate, without further explanation, the principle, however correct abstractly considered, that was contained in the charge requested by the defendant. Without explanation, which the court was not bound to give, the simple enunciation of that principle would give it a seeming importance, more calculated to mislead, than to enlighten the jury. All the facts connected with the arrest of the plaintiff, his trial and commitment by the magistrate, and his subsequent discharge, were before the jury; and to charge as to the effect of the commitment by the magistrate merely, without reference to the other proof in the cause, would not have been proper.

The admission of the record of the suit between these parties, in which Sanford recovered of Ewing a judgment for the same negro woman which Ewing had prosecuted him for stealing, was proper, under any aspect of the case. To repel the truth of the charge preferred by Ewing, was one of the duties that devolved on Sanford under the allegations of his declaration, and there was no proof more proper for such a purpose, than a recovery of the very slave he was charged with stealing, in a suit against the person who preferred the charge, and to whom she had been delivered by the magistrate.

The last assignment relates to the alteration made in the form of the verdict by direction of the court. The verdict as rendered, was in substance the same, both before and after the alteration directed by the court. It was a correction as to matter of form only, and this the court may properly direct at any time. In an action on tbe case, a verdict saying, “We, tbe jury, find for tbe plaintiff, and assess bis damages at $2500,” is equivalent to saying, “We, tbe jury, find tbe defendant guilty, and assess tbe damages at $2500.” “We find for tbe plaintiff,” is, in other words, “We find the issue for tbe plaintiff.

There is no error in tbe record, and tbe judgment below is affirmed.  