Ragsdale v. Bowles , 16 Ala. 62 ( 1849 )

DARGAN, J.

This was an action on the case for a malicious prosecution. The defendant demurred to the third count, and his demurrer was overruled, which is assigned as error. The objection to the count is, that it does not aver with sufficient certainty, that the plaintiff was acquitted of the charge preferred against him, or that the prosecution has been terminated by any judicial, investigation. The averments are, that the defendant falsely, maliciously, and without probable cause, charged the said plaintiff with the crime of felony; and upon said charge, falsely, maliciously and without probable cause, caused the said plaintiff to be arrested by his body, and to be imprisoned,- and kept and detained in prison for a long time, to wit :■ for the space of one day, then next following, and at the expiration of which said time, he the said defendant caused the said plaintiff to be released, and set at liberty, and wholly abandoned his said prosecution.

It is necessary, in order to sustain this action, to show that the prosecution has been determined and ended, and if this is not shown by the declaration, the defendant may demur. 2 Chitty, 607, & notes; 2 Greenl. Ev. §§ 452; 3 Gill & Johnson, 377; Morgan v. Hughes, 2 Term Rep. 225. The words em•ployed by the pleader in this case, do not convey the idea with any reasonable certainty, that the charge was investigated judicially. That the defendant caused the plaintiff to be released and set at liberty, and abandoned the' prosecution, does not show that the prosecution is ended by the judgment of any judicial tribunal, or that the defendant was discharged, after judicial investigation. The count is therefore bad, considered as a count for a malicious prosecution.

But we incline to think it a good count, if we consider it' a count for false imprisonment, and in this point of view, it is not necessary to examine, whether the form of action is trespass or dase, for the demurrer being to this count alone, if it be a good count in trespass, the court should have overruled the demurrer, notwithstanding it is joined with two others in case. If counts, in case and trespass are joined, and theré is a demurrer to one count only, it must be overruled,-for the defendant can avail himself of the misjoinder only by demurring to the whole declaration. Chitty Pl. 206; Smith v. Merwin, 15 Wend. 184.

Considering this then, as a count in trespass for false imprisonment, and there is no averment in it that would prohibit its being so considéred, th% demurrer was properly overruled.

Let the judgment be affirmed.