Benford v. Daniels. rather draw a different conclusion from the orders above referred to. The letters of administration are general-a general order was made at the time, for the sale of the personal estate, without exemption as to the slaves. The failure of the administrator to make, and of the court to require annual returns of the monies received, and the expenses incurred, and the disposition of all monies received from the estate, and accounts of funds paid or expended for the distributees, -all these are persuasive to show, that the estate was in process of settlement under the general law. There was then, nothing of record which would authorize the court, some six years after the order was passed granting administration to make the amendment in the order, changing the character of the administration. The argument of the defendant's counsel, that the leave granted annually to the administrator to sell the crops, and the receipt of his accounts of sales, establish that the orphans' court had granted the order to keep the estate together under the ten years' statute, is untenable, inasmuch as none of these orders were made at the term when it is insisted the authority sought to be supplied by the amendment, was conferred; and it cannot be that the court, where there is no record evidence to amend by, can make the evidence which is to be the predicate of its subsequent action in making the amendment. If such were permissible, the statute, (Dig. 322, § 55,) would be entirely evaded. This only authorizes amendments when the record furnishes sufficient matter to amend by. In Thompson v. Miller, 2 Stew. 470, it was shown by parol evidence, that at a previous term of the court, an order had been made requiring the plaintiff, who was a non-resident, to give security for cost, and the order not appearing on the minutes, it was entered nunc pro tunc, but this court say, "we have no hesitation in saying, the order of the court below, entered nunc pro tunc, on oral testimony, was erroneous-such orders or judgments are only authorized where predicated on matter of record, or some entry or memorandum made by, or under the authority of the court." This case is referred to without disapproval in the case of Brown v. Bartlett, 2 Ala. Rep. 29, and the same principle is reaffirmed in Armstrong v. Robertson and Barnwell, 2 Ala. Rep. 164, in which the name of Benford v. Daniels. Franklin Robertson, instead of Franklin Armstrong, was inserted in the judgment entry by mistake. See also, Andrews, adm'r, v. The Branch Bank of Mobile, 10 Ala. Rep. 375. These authorities, sustained as they are, by numerous decisions of other states having similar statutes, (see McKey v. Moore, 4 Bibb, 321; Varnon v. Moore, 1 Monr. Rep. 214; Waldo v. Spence, 4 Conn. Rep. 71; People v. McDonald, 1 Cow. Rep. 189; Atkins v. Sawyer, 1 Pick. Rep. 351,) are quite sufficient to show there was no warrant for the entry made nunc pro tunc in the case at bar. The effect of the entry was to give the court a jurisdiction which it did not possess before the act of 1835, and to change materially the administration of the estate, and we feel satisfied the court erred in receiving and acting upon the parol evidence, in making the amendment, as shown by the bill of exceptions. 2. The law, as applicable to this administration, required the administrator to receive the assets of the estate, to pay the debts which were a charge upon the estate, and to pay the residue to the persons entitled to receive it. Willis's adm'rs v. The Heirs of Willis, 9 Ala. Rep. 330. If under a misapprehension as to the fact that the record showed he had authority to keep the estate together, he has gone on to incur expenses in keeping up the farm and supporting the hands, and rearing the infant children, and has expended his own labor in the management of the business, we will not say he is without remedy; all we now decide is, he cannot be relieved in the orphans' court, to the extent that court has gone in its decision. As he had no authority for keeping the estate together, and working the slaves on the plantation, the distributees may elect whether they will take the profits of the business, or will go against the administrator for the reasonable rents of the land, and use of the personal property. See Steele v. Knox, 10 Ala. Rep. 608. If they elect to take the hire for the slaves, the administrator will be allowed for his services in taking care and providing for such of them as could render no service; so also, if they take the profits, the nett proceeds of the farm and hands should be charged against him, and it is competent for the orphans' court, if the administrator has in good fath personally super Harris v. Mauldin, et als. intended the hands as an overseer, (and we think the evidence very satisfactorily shows the fact,) to allow him whatever sum a prudent man would have been justified in paying an overseer, taking into consideration the situation of the estate. See Harris v. Martin, 9 Ala. Rep. 895; O'Neil v. Donnell, Ib. 734. It is unnecessary for us to notice the many items objected to in the account furnished by the administrator on final settlement. The views above expressed, will furnish a sufficient guide as to them upon another settlement. The decree of the orphans' court is reversed, and the cause remanded. HARRIS v. MAULDIN, ET ALS. 1. One or more of several wrong doers, against whom nothing is proved, may be acquitted, and examined as a witness for his co-defendants; but where the least evidence is given against one of several wrong doers, who is sued jointly, he cannot be discharged on the trial, for the purpose of being examined as a witness. Error to the Circuit Court of Talladega. Judgment by his Honor George W. Stone. CASE for a malicious prosecution, by the plaintiff in error, against the defendants in error. The questions presented, arise out of a bill of exceptions, and present the following facts: The defendant Mauldin, sued out, and obtained a warrant to arrest the plaintiff, for an assault with intent to murder him; and it was in proof that Mauldin procured one Miller, to go with him and one Coley, six miles to get the warrant. That they left after night, got to the magistrate's near 10 o'clock at night, and obtained the warrant, Miller Harris v. Mauldin, et als. being deputed to act as constable. That Mauldin, and Mil ler, went to the house of defendant Simmons, and woke him up, and at Miller's request he went with them, two miles and a half, to point out the plaintiff to the constable, to whom the plaintiff was unknown. That Simmons went with them, to where the plaintiff had camped with his wagon, woke him up, and he was arrested by the constable. The defendants Burns, and Dobbins, lived more than twenty-five miles from Mauldin's, but were at Mauldin's house, where Mauldin, Miller, and Coley, set out to obtain the warrant, and were acquainted with the plaintiff. It was in proof, that the difficulty between the plaintiff, and Mauldin, grew out of a claim which the former asserted to a slave, which the latter had hired to the defendant Burns, and which Burns delivered up to the plaintiff on his demand. Burns and Dobbins were with Mauldin, when the latter attempted to take the negro from the plaintiff, which he prevented, by raising an axe. Dobbins and Burns were both present at Mauldin's house the next morning after the arrest. Dobbins and Mauldin both told the plaintiff, that if the warrant was pushed it would send him to the penitentiary. On the way to the justice of the peace, they stopped at Simmons's house, and Mauldin, alledging that he was sick, or drunk, went to bed. Burns and Dobbins informed the plaintiff, that Mauldin had authorized them to settle the prosecution, if he would give up the bill of sale to the slave in controversy, and make a deduction upon a note which he held against Mauldin. This was done, and the constable entered on the warrant, satisfied by consent of parties. The plaintiff was a resident of Georgia. The defendants' counsel then insisted, that there was no evidence against Burns, Dobbins and Simmons, and that they desired to examine them as witnesses, and prayed the court to discharge them. The court refused to discharge them, but held, that there was no proof against Burns and and Simmons, and instructed the jury to find a verdict of not guilty as to them; to which the plaintiff excepted. Burns was then introduced as a witness for the defendants, and the plaintiff again excepted. These matters are now assigned as error. Harris v. Mauldin, et als. S. F. RICE and J. T. MORGAN, for plaintiff in error. 1. In Alabama, the presiding judge has no power to nonsuit a plaintiff, either as to all the defendants, or as to a portion only of the defendants. And he cannot direct an acquittal by one of several tortfeasors, because that is equivalent to a non-suit as to such tortfeasar. 5 Ala. Rep. 341. 2. There was evidence showing that Burns, Dobbins and Simmons, were engaged in the malicious prosecution of the plaintiff, and were aiding and assisting Mauldin to deprive him of his liberty, in order to force him into a compromise. of his rights; and however slight the evidence was, the court could not lawfully compel the jury to acquit them, even if our practice allowed a judge in any case to direct a non-suit. Brown v. Howard, 14 Johns. Rep. 119. 3. If the warrant was maliciously sued out by Mauldin, and the arrest was malicious, all the acts done by Simmons, Burns and Dobbins, with a view of assisting Mauldin in the prosecution of his designs, if done with malice, or without reasonable or probable cause, render them equally liable to the action, as if they had procured the issuance of the warrant. Clifton v. Grayson, 2 Stew. R. 412, and cases there cited. 4. Simmons got up out of his bed, and went two miles, and actually put Harris in custody, under the guise of presenting him to the constable as an acquaintance. Simmons and Dobbins told Harris that if the case was prosecuted it would send him to the penitentiary. Burns and Dobbins were both present when the difficulty occurred, in which Harris drew his axe; were present when Harris was arrested at Mauldin's house-and Burns and Dobbins settled the prosecution upon the unjust terms stated in Rucker's deposition. All their conduct evinces a preconcerted plan to put Harris in duress, under process sued out without cause, and to compel him to buy out the prosecution at a great sacrifice. These are the highest evidences of malice. L. E. PARSONS, for defendants, referred the court to 3 Phil. Ev. 1552; 6 J. J. Marsh. 53; 6 Car. & Payne, 213. COLLIER, C. J.-It is said to be an indisputable rule, that |