Williams v. Ivey , 37 Ala. 244 ( 1861 )

STONE, J.

The first, count in the'original complaint is a substantial copy of the form furnished by the Code,, (page 554,) “for assault and battery,” and is clearly a count in trespass. The second count -isacopy of the next succeeding form, the caption of which assumes to be “for false imprisonment.” The correctness of the ruling of the circuit court, on the demurrer for misjoinder, depends on the inquiry,- whether the second count is in trespass,■-.or in •case. The circuit court held it to be a count in case. We 'hold, that it was a- count in trespass vi et armisi for the following reasons i

First — The caption to the form, for false imprisonment, indicates the action of trespass, (2 Chitty’s PI. m. p. 857;,} and is a very inappropriate designation of an action on the case for a malicious prosecution. — 2 Chitty’s PL m. p. 600.

Second — The count contains mvwords descriptive of an arrest uhder process, or of discharge therefrom, which are essential in a complaint for a malicious prosecution. — Ragsdale v. Bowles, 16 Ala. 62; Sheppard v. Furniss, 19 Ala. 760.

In the two cases cited supra, from 16th and 19th Ala., the declarations contained clearer marks of the action for malicious prosecution, than the second count in the present complaint does ; yfel this court ruled each of those counts to be in trespass.

In the trial of the cause, the circuit court proceeded on ¿lie opinion, that the second count in the complaint, on which the trial was had,'was- a count in case. Hence, that court excluded much evidence of assault and battery, imprisonment without process, &c., which was legal evidence in an action of trespass vi ei armis. This ruling of the court being based on an erroneous judgment as to the form of action, it results that the circuit court erred in this particular. We seed, scarcely add, that on a trial in trespass for an assault and battery, and for false imprisonment, testimony of a prosecution under warrant and arrest, which are not void on their face, is not relevant. — Duckworth v. Johnson, 7 Ala. 578; Crosby v. Hawthorn, 25 Ala. 221.

Reversed and remanded.