The jury returned a verdict for $1 damages and costs, and being inquired of by the court at the request of the defendant, the jury said that they found that the trespass was a joint one committed by the defendant and Grumley. The defendant moved for a new trial. In granting the motion Hinman, C. J., of the supreme court of errors, said: "We think the closing part of this instruction was incorrect. It is, as we suppose, settled law that a release, discharge or satisfaction of one or more of several joint trespassers is a discharge of them all, in the same manner that a discharge of one of several joint debtors, or a payment and satisfaction of the joint debt by one, is a satisfaction as to all, since a party injured by a trespass committed by several can have but one satisfaction for his injury, no more than one who has a debt against several can be entitled to be more than once paid. It is true, undoubtedly, that for a joint trespass they may all be sued jointly, or separate suits may be brought against each, because trespasses committed by several, while they are in fact the joint act of all, are also the separate acts of each individually, each being liable in law for whatever was done by them all or any of them; and if suits are separately brought against each they may be all pursued to final judgment, and the plaintiff may elect which of the separate judgments he will enforce and collect. But having received the damages recovered against any one, and his costs recovered against all, he must be content with that, as otherwise he would recover more than one satisfaction for his injury. . . . The principle upon which this case turns was adopted by this court in the case of Canfield v. The Eleventh School District, 19 Conn., 529, where it was held that when a debt was paid there was nothing left for which nominal damages or costs could be recovered, though the payment was subsequent to the commencement of the suit. . . . In this case the issue upon the second plea should, we think, have been found for the defendant, which would have disposed of the case, and no doubt would have been so found but for the charge which allowed the jury to render their verdict for the plaintiff for nominal damages, although the injury resulting from the trespass had been settled and satisfied." Ayer v. Ashmead, 31 Conn., 447 (1863). Citing Bird v. Randall, 3 Burr., 1345; Davis v. Jones, 4 B. & C., 506; Cocke v. Jannor, Hob., 66; Livingston v. Bishop, 1 Johns., 290; Brown v. Marsh, 7 Vt., 327; Sheldon v. Kibbe, 3 Conn., 214; Knickerbocker v. Colver, 8 Conn., 111. 2. I. The prosecution of the plaintiff. 3. Identification of the defendant as the prosecutor. 4. The end of the prosecution. (1) In civil cases. (2) In criminal cases. (3) In actions for the abuse of process. (4) In actions for false imprisonment. 5. The record conclusive evidence of acquittal or conviction. 6. Contents of lost records may be shown by parol evidence - Applications of the law. (1) Loss of the complaint before the magistrate. (2) Evidence of matters not appearing in the record not admissible. 7. II. Malice and want of probable cause. A. Maliciously instituting the prosecution. Application of the law. (1) Malice and want of probable cause not inferred from the discharge of the accused. (2) Malicious suing of a warrant, evidence of probable cause. (3) Evidence of matters arising after the prosecution of the alleged malicious suit. (4) Evidence on the question of probable cause and malice. B. And without reasonable or proper cause. Application of the law. (1) Pleadings in former suits between the parties - Letters and account books. (2) Entries of the public prosecutor may be explained. (3) Want of probable cause not established. 8. Evidence of character Plaintiff may show it affirmatively - Par ticular instances of bad conduct, improper. 9. The rule stated by Taylor, J. Applications of the rule. (1) Character of informant in criminal cases (2) Bad character of plaintiff's mother not competent. 10. Advice of counsel. An illustration. Advice of counsel - Its sufficiency as a defense a question for the jury. 12. Malice and the want of probable cause must concur. 13. Actions against magistrates. Applications of the law. Testimony before the magistrate on the preliminary examination, competent. 14. Magistrates are bound by the records they keep. 15. 16. 17. 18. 19. Applications of the law. (1) Matters outside of the record inadmissible, etc. (2) The papers should be produced. Actions for malicious arrests. Want of probable cause in actions for malicious arrests. Evidence on the part of the defendant. Under the plea of not guilty. 20. Matters not relevant to the issue. The rule illustrated. Matters having no relevancy to the issue. 21. Credibility of witnesses and weight of testimony. An illustration. Credibility of witnesses- The province of the jury. 22. In actions for false imprisonment. 23. Burden of proof, when upon the plaintiff to show the imprisonment false. An exception to the rule illustrated. The plaintiff must show the imprisonment false, when. 24. Irregularities and informalities of proceedings. 25. Want of probable cause. 26. The rule stated. 27. Malice in actions for false imprisonment. 28. General damages. 29. Compensatory damages, elements of. 30. Special damages. 31. The defendant's evidence. 32. What may be shown under the plea of not guilty. (1) In bar of the action. (2) In mitigation of damages. § 1. Malicious prosecution - Burden of proof. In order to maintain an action for a malicious prosecution, the burden. of proof under the plea of the general issue is upon the plaintiff to show by a preponderance of the evidence these propositions: I. That he has been prosecuted by the defendant either in a criminal or civil proceeding, and that the prosecution is at an end. II. That the prosecution complained of was instituted maliciously and without probable cause. III. That he has by reason of such prosecution sustained damages.1 2. I. The prosecution of the plaintiff.- As a general rule in the order of proofs before malice or want of probable cause is shown, the plaintiff should prove the fact of the prosecution complained of. This is usually done by duly authenticated copies of the record and proceedings in the prosecution complained of, and for this the record is competent. But it seems that it is not sufficient to give in evidence the original indictment; because it does not prove the caption, which is a material averment in the declaration. If the prosecution was by means of a charge preferred before a magistrate, the proceedings should be produced; or, in case they have been lost, secondary evidence should be given. And where the proceedings have been laid aside as useless, secondary evidence will be admissible, after slight proof of their destruction. In case the suit is for causing the plaintiff to be maliciously arrested and detained until bail is given, it is sufficient for him to show a detention without proving that he gave bail, for the detention is the principal gravamen, and is in itself prima facie evidence of an arrest, though the mere giving of bail is not such evidence. If, however, the action is brought for maliciously causing the plaintiff to be held to bail, evidence of a previous arrest is unnecessary. § 3. Identification of the defendant as the prosecutor.Some evidence of the identity of the defendant must also be given, and that he was the prosecutor in the proceedings which are charged to be malicious. One of the grand jury before whom a bill of indictment has been preferred may, it has been said, be called to prove the fact that the defendant was the 12 Greenl. Ev., § 449; Baylie's Onus Probandi, 184; Abbott's Tr. Ev., 652; 3 Phillips' Ev., 567; Bloss v. Gregor, 15 La. Ann., 421 (1860). 2 Granger v. Warrington, 8 Ill. (3 Gil.), 299; 2 Greenl. Ev., § 450; Abb. Tr. Ev., 652. 33 Phillips' Ev., 568; Edwards v. Williams, 2 Esp. N. P., 37. 4 Freeman v. Arkell, 2 B. & C., 496; 2 Greenl. Ev., § 450. 52 Greenl. Ev., § 451; Bristow v. Haywood, 1 Stark., 48; Whaley v. Pepper, 7 C. & P., 506. 6 Berry v. Adamson, 6 B. & C., 528; 2 C. & P., 503; 2 Greenl. Ev., $451. 72 Greenl. Ev., § 451; Small v. Gray, 2 C. & P., 605; Berry v. Adamson, 6 B. & C., 528; 2 C. & P., 503. prosecutor. The indorsement of the defendant's name on a bill of indictment which has been laid before the grand jury shows that he was sworn to the bill, though it is not the only competent proof of that fact; but it is not any evidence of his being the prosecutor. It may also be shown that the defendant employed counsel or other persons to assist in the prosecution, or that he gave instructions, paid expenses, procured witnesses, or was otherwise active in forwarding the prosecution. But it is not sufficient to show that the defendant was a member of the grand jury and employed counsel to prosecute the plaintiff. 4. The end of the prosecution. (1) In criminal cases: The prosecution which is charged to be malicious must be shown to have been determined; otherwise it may possibly happen that the plaintiff may recover in the action, and yet, if the prosecution is not determined, may be afterwards convicted of the original charge. If the bill of indictment was returned by the grand jury not a true bill, or if the plaintiff was acquitted on the trial of the prosecution, these facts can only be proved by the original record, or by an examined copy of the record. An allegation that the plaintiff was duly and in a law ful manner acquitted by a jury of the country is proved by the record, from which it appears that the jury found the plaintiff not guilty, and thereupon judgment was entered that the plaintiff should go acquitted; 7 and the action will not be defeated by showing that the plaintiff was acquitted on a defect in the indictment. An entry of a nolle prosequi by the attorney-general is held in England not to be such a termination of the prosecution as will enable the plaintiff to maintain the action; and this doc4 Barrett v. Choteau, 94 Mo., 13 (1887). 1 Sykes v. Dunbar, Selw. N. P., p. 1305; Freeman v. Arkell, 1 C. & P., 137; 3 Phillips, Ev., 568; 2 Greenl. Ev., § 450. 2 Bull. N. P., 14, per Holt, C. J.; Johnson v. Browning, 6 Mod., 216; Girlington v. Pitfield, 1 Vent., 47; 3 Phillips, Ev., 568, 569; 2 Greenl. Ev., § 450. 32 Greenl. Ev., § 450; Bitting v. Ten Eyck, 82 Ind., 421; 42 Am. Rep., 505 (1882). 5 Mills v. McCoy, 4 Cow. (N. Y.), 406 (1825); Watts v. Clegg, 48 Ala., 561 (1872); John v. Bridgman, 27 Ohio St., 22 (1875); Brewer v. Jacobs, 22 Fed. Rep., 217 (1884). 63 Phillips, Ev., 575; 2 Greenl. Ev., § 452. 72 Greenl. Ev., § 452; 3 Phillips, Ev., 568. |