It is true that when it appeared that the district attorney had dismissed the prosecution against the appellant, at the appellee's request, it devolved on him to show that his reasons for making this request of the district attorney, "were such that from them no inference of lack of probable cause can properly be drawn," 3 Rest. Torts, Sec. 665, Comment on subsec. 1.
Among such reasons, and the one sought here to be shown, is that the dismissal of the prosecution was pursuant to an agreement of compromise, not with the appellant, but with her husband. Had such a settlement been made by the appellee with the appellant, or with another authorized by her to make it, or if it had been *Page 42 accepted by her after being informed thereof, evidence of it would have been competent. 3 Rest. Torts, Secs. 660 and 665; 34 Am. Jur., Malicious Prosecution, Sec. 42; Jones v. Donald Co.,137 Miss. 602, 102 So. 540; Brown v. Kisner, 192 Miss. 746,6 So.2d 611.
The reason therefor is, "that in such case there is such an admission of probable cause that the plaintiff cannot afterwards retract it," and claim that the prosecution was instituted without probable cause. 34 Am. Jur., Malicious Prosecution, Sec. 42, 38 C.J. 444, Note 13(a); 67 A.L.R., p. 517. It follows from this that the request to dismiss the prosecution in order to prevent it from having thereby terminated favorably to the appellant must have been made by her, or by another authorized by her to so do, or have been accepted by her after being informed thereof. There is no evidence here that the appellant's husband (he, by the way, denied having this conversation with the appellee) was authorized to make this adjustment with the appellee, or that she knew that he had so done. The appellee may have supposed that the appellant's husband was acting with her consent; but he did so at his peril, and under our statute removing the disabilities of coverture, the husband can act for his wife when, but not unless, she has authorized him so to do. This evidence, therefore, was not admissible under the count for malicious prosecution. It is true that the admission of the evidence was harmless, insofar as it affects that count of the declaraton, for the reason that the appellee was entitled to a directed verdict of not guilty on that count. But it was prejudicial as to the count for slander, for it contained an admission by the appellant's husband who, the jury would naturally believe, knew what he was talking about, that the appellant had taken the appellee's pickets, and that she did it for spite, thereby powerfully reinforcing the appellee's evidence to the like effect. No part of this evidence was competent, consequently the rule invoked in the controlling opinion that when a part of a witness' answer to a question is competent *Page 43 an objection thereto, not confined to the incompetent part thereof, will be overruled, has no application here.
The judgment of the court below should be reversed, but insofar only as it covers the first count of the declaration, and the cause should be remanded for a new trial on that count.
Roberds, J., concurs in this dissenting opinion.