*254ON APPLICATION POE BEHEAEING.
MAYF'IELD, J.It is most earnestly insisted by counsel for appellant that a rehearing should be granted in this case; that there is manifest error in this record, in that the trial court should have given the affirmative charge, as requested, to find a verdict for defendant.
After several careful examinations of this record, we are not able to agree with the contention of counsel for appellant, for the following reason, which we will again epitomize, on account of the repeated and earnest insistences of counsel for apellant.
The action is for malicious prosecution, claiming damages as for two malicious prosecutions of plaintiff by the defendant, on the charges of “enticing away laborers” of the defendant. The undisputed evidence shows that these two prosecutions, as alleged, were instituted and prosecuted by the agents of the defendant, and that the grand jury failed to indict in both cases, and that the prosecutions were ended in favor, and by the discharge, of plaintiff before this action for malicious prosecution was begun; that the plaintiff was arrested, detained, and imprisoned in jail, in consequence of the prosecution, and as the result of the acts, agency, and advice, of the defendant or of its attorney.
These facts being undisputed, they were certainly sufficient to carry the case to the jury upon the general issue.
The defendant undertook to rebut plaintiff’s case, and to show that there was probable cause for the institution of the prosecutions', and that there was no malice, which, if conclusively done, would have entitled it to the affirmative charge.
But was the evidence conclusice as to this? We think not.
*255It is most earnestly insisted by counsel for appellant,, on this rehearing, that plaintiff was actually guilty of the charges preferred by the defendant, and for which he was prosecuted, notwithstanding the grand jury had twice refused to indict him on an ex parte hearing. Our answer to this is that, if that is true, the record before us does not so show it; and of course we are bound by the record. We do not so find that all evidence in this record shows that plaintiff was guilty as charged, or that there was probable cause for defendant’s agent’s: believing him to be so guilty.
The mere fact that plaintiff was in Huntsville on the occasion when arrested, for the purpose of accompanying certain persons from Huntsville to Atlanta, and to pay their transportation and expenses, and that those persons were employees of defendant, does not conclusively show that plaintiff had enticed such employees away from defendant, within the meaning of the Criminal Code. Certainly plaintiff’s evidence did not show conclusively, nor admit, that he was guilty of the criminal offense charged. A part of his evidence is as follows. “The charge on which I was arrested from Naught’s court was ‘enticing laborers from the Abingdon Mills.’ I did not solicit anybody, and did not offer anybody any sum of money or higher wages at all. I came here with the money for the purpose of paying transportation of certain hands who had already been hired to go to Atlanta. I did not employ or offer to employ any one, and did not have any authority from the Fulton Bag & Cotton Company to employ anybody, or offer any hands employment. After my arrest, and after I made bond, I went back to Atlanta that afternoon. I did not return to Huntsville until the following January, when I came back for trial. I was tried for carrying on the business of an emigrant agent, with*256out license, and was tried in this courthouse. Mr. Pride and Ca'pt. T-Iumes were the attorneys for the prosecution on my trial for carrying- on the business of an emigrant agent. Mr. Sanders and Mr. Herring and Mr. Brown were all present at the trial, and I think they were all witnesses against me, and they were assisting the attorneys. Immediately after that trial I was re-arrested in the courthouse before I had gotten out of the courthouse, on a charge of enticing away laborers from the Abingdon Mills. * * * When I was carried up to Mr. Yaught’s office that night in August, Mr. Herring said to me, T am glad we got you, old fellow, not on your account, but on account of the Fulton Bag & Cotton Mills.’ Mr. Herring was assistant superintendent of the Abingdon Mills.”
There is abundant evidence in this record tending to show that the arrangement for the hands to go from the Huntsville Mill to the Atlanta Mill were made by correspondence between the Huntsville employees and the Atlanta employers, and without any criminal participation therein on the part of this plaintiff or of any other person. We do not understand that this statute absolutely prohibits employees of one cotton mill from ever seeking or obtaining employment elsewhere, and that, if they ever do thereafter obtain employment in another mill, all other persons who aid them in going to such new employer or cotton mill are guilty of violating this statute.
The plaintiff further testified: “The only parties whose expenses or debts I had authority to pay were shown by some letters I had, which were written to Mr. S. F. Brown. The hands I now remember were Maggie Couch, and Bessie Merritt. That money was simply an advance on the part of the mill to these people. When I was in Huntsville before, in 1906, I was here as a *257drummer, and did not know anything about the Abingdon Mills. I did not make any contract with Maggie Couch and the parties who came to see me at the hotel. I notified them that I was here for the Fulton Bag & Cotton Mills, to carry them back to Atlanta, and that I would buy the tickets, pay freight on household goods, ■etc. I did not offer any money to any others.”
The defendant also insists that it was entitled to the affirmative charge, for the reason that the prosecutions were instituted and prosecuted under the advice of counsel, and were therefore with probable cause and without malice.
We do not think the evidence in this case was so conclusive as to take the questions from the jury. It is true that the evidence does show that two attorneys were consulted and advised with, about the prosecutions; but it also shows that one of these attorneys was a stockholder, an officer, and a director, of the defendant corporation, and that he was employed by it to prosecute the plaintiff, in addition to the prosecuting attorney for the state. The other attorney consulted was the •county solicitor. He was twice examined as a witness, and testified, in part, as follows: “Capt. Humes assisted me in the trial of the case against Grogan, in the law and equity court, and suggested the mitin g of this affidavit. He assisted me in prosecuting Mr. Grogan, and it was at his suggestion and dictation that I made out this affidavit. That affidavit and warrant were written in the courtroom immediately after the trial of Grogan on the charge of carrying on the business of an emigrant agent without license. The matter was discussed with "Mr. Brown, Mr. Herring, and Mr. Sanders, my recollection is, in the courtroom. We discussed the verdict in the other case, and then it was that this complaint was prepared, and the warrant issued. Brown and Herring *258and Sanders did all the talking to me all the time. I did not request Capt. Humes to assist in the prosecution of that case. Mr. Brown told me that they were going to have Capt. Humes assist. I told Mr. Sanders and Mr. Herring and Mr. Brown, when they came to consult me about baying Grogan arrested, that I thought it would be best to wait until we could find out that some of tbe employees bad signed up, or gone to tbe depot, to be there and see that they started to move to tbe depot. I wanted them to be sure and know that be was here for that purpose before they made any arrest: I advised
them all tbe time not to make arrest until they were certain that be bad committed some overt act before be was arrested, and I felt that we would be pretty certain of' bis guilt if be bad done these things that I have related. When tbe affidavit was sworn out in tbe courtroom after tbe first trial, Capt. Humes and I and Mr. Sanders, were present, and I think Mr. Brown, Capt. Humes, and I beard all tbe evidence on tbe trial of Grogan for carrying on tbe business of an emigrant agent. Capt. Humes Avas a reputable practicing attorney and dictated the-affidavit to me, after we bad beard all tbe evidence. I concurred Avith. Capt. Humes, in thinking that, unden tbe evidence in 'that case, Grogan was guilty of enticing aAvay laborers; but I thought at the time, and so told Capt. Humes that I thought, it would be dangerous for tbe company to swear out the second affidavit. I did not think it good policy to swear out the second affidavit.”'
It has been repeatedly held that the question as to thebona fides of obtaining tbe advice of counsel, and whether a full and fair statement of tbe facts was made-to counsel, is usually one for tbe jury. — 2 Greenf. Ev., 459; McLeod v. McLeod, 73 Ala. 42. See former report of this case, 167 Ala. 146, 52 South. 596-599. So these-were all clearly questions for tbe jury.
*259We do not mean to say that there was no evidence in conflict with that quoted above; but the testimony quoted was in evidence, besides the undisputed facts which we have before stated. This, under all the authorities,, was sufficient to carry the questions to the jury. For the trial court to have taken all these questions, and instructed a verdict for the defendant, would clearly have been a usurpation by the court of the functions of the-jury. This case has already been tried twice, each time by a different jury, and each jury has found for the-plaintiff and for substantial damages. There is nothing-to show bias or prejudice against this defendant or in favor of the plaintiff. The plaintiff, who was prosecuted, was a non-resident of the state at the time of his-arrest and at the time of his trial, while those who procured and instituted the prosecutions were resident citizens of the state and the county. A trial court has twice heard all the' evidence, seen the witnesses, and observed their manner and demeanor; and in each instance-it refused the defendant’s motion to set aside the judgment. Two grand juries of Madison county have refused to indict the defendant on ex parte hearings of the prosecutors, and a petit jury has refused to convict him of a kindred offense of being or acting as an emigrant agent without a license. This court, on a former-appeal, when the evidence was practically the same as it is noAV, held that the right of the plaintiff to recover was a question of fact for the jury, and reversed the case for another trial; and it Avould have been unusual for the tidal court, on a second trial, Avith the evidence-practically what it Avas before, to instruct the jury to-find for the defendant, when this court had held that it should not so instruct the jury.
- So the application for a rehearing on this appeal is, for all practical purposes, the second application as to*260tlie question of the general'affirmative charge. We are therefore somewhat surprised that counsel for appellant should have been so severely shocked at the court’s action, on this second appeal, in saying exactly what it had said on the former appeal. It is no doubt often hard for counsel to see the correctness of verdicts and judgments against their clients. It is likewise a natural and meritorious trait of character that counsel should feel a deep interest in the result of the suits of their clients; but it does seem that in this case, after so many trials with the same result, and after consideration of all the undisputed facts, counsel should become reconciled to its loss, without thinking that the court has failed to give it the proper attention.