Taylor v. Smith , 104 Ala. 537 ( 1894 )

HARALSON, J. —

1. At common law bail was not allowable as a matter of right, but rested in sound judicial discretion. By the Bill of Rights in our present constitution, as it was in the previous ones, it is provided that all persons shall, before conviction, be bailable with sufficient sureties, except for capital offenses, when the proof is evident or the presumption great; and that excessive bail shall not, in any case, be required.

When an indictment has been found against one for a misdemeanor, it is provided by statute that the defendant must be discharged by the sheriff, or his deputy, on giving sufficient bail; but the amount of bail must in no case be less than $50. — Code, § 4408. And by section 4275 it is provided, that when the offense is described in a warrent of arrest, and it is executed by the sheriff or his deputy, such sheriff or deputy may, on the request of the defendant, discharge him on sufficient bail for his appearance at the next term of the court having jurisdiction of the offense, to answer any indictment which may be found against him therefor ; and if such court is in session, for his appearence at such court. It is thus made manifest, that the policy of our law is to afford to the citizen every reasonable facility for obtaining a discharge from arrest, before conviction, on giving security for appearence to answer the accusation preferred against him. On the arrest of a defendant charged with a misdemeanor, whether before or after indictment, without any order of court, he is entitled to be admitted to bail. “It is a matter of right, and on the sheriff, in whose custody he may be, devolves the duty unconditionally of discharging him on sufficient bail. The duty of the sheriff is purely ministerial, and for the manner of its exercise he stands answerable, as he is for the exercise of other ministerial duties.”— Hammons v. The State, 59 Ala. 168.

2. The appellant’s counsel rests his case upon the one point, that the general charge should not have been given for the defendants, because the complaint charges that the defendant Smith wrongfully refused to admit the plaintiff to bail for his appearence to- answer the charge of a misdemeanor for which he was arrested, as to which, the evidence was conflicting. If this were the real and only issue in the case, the general charge could not be sustained, for the reason urged. In the great and confusing mass of amendments, demurrers, pleas and replications, without the rulings of the court upon them, so far as appears, our labors would have been greatly lightened, if it had been made plain to us, as it lias not been, that this was the only issue in the case, or what the issue really was.

3. The defendants’ counsel rests the defense on the two grounds : that the original complaint was in trespass, and the amendments, on which the cause was tried,were in case, and the cause of action was barred by the limitation of one year, at the time the amendments were allowed and filed; and that, without reference to any ' other issue in the cause, the plaintiff took issue on the 10th plea, which was established without conflict of evidence, and on this plea, they were entitled to the general charge.

4. It is often difficult to draw the line between an action in trespass and one in case, although much has been written on the subject. It came to us from the common law, and out of respect to a venerable technicality, more than for any other reason, perhaps, the distinction has been preserved in our Codes. Until recently, the two causes of action could not be united in one complaint, but that ancient rule has been dispensed with by legislative enactment. The counsel for defendants in this case, have encountered the bewilderment which has often overtaken others before them, in ascertaining whether this is an action in trespass or case. Perhaps we can not better define the two, than .was done in Pruitt v. Ellington, 59 Ala. 457, where this language was employed : “For a tort committed with force and intentionally, the immediate consequence of which is injury, trespass is the appropriate remedy. If the injury proceeds from mere negligence, or is not the. immediate consequence .of the tort, case is the appropriate remedy.” See Bell v. Troy, 35 Ala. 184; Ala. M. R. R. Co. v. Martin & Bro., 100 Ala., 511.

Tested by this rule, the original and amended complaints were in case. The damages complained of and as alleged' were consequential, were committed by the' sheriff under color of his office, and proceeded from a negligent disregard of official duty, and were not the immediate result of the tort alleged to have been committed. The original complaint being in case, the amendments were within the Us pendens — being themselves in case — and related back to the commencement of the suit. As the original cause of action was not barred, at the time the suit was commenced, the amendments were not subject to the pleas of the statute of limitations. — Evans v. Richardson, 76 Ala. 329 ; Mohr v. Lemle, 69 Ala. 180 ; King v. Avery, 37 Ala. 169.

4. This brings us to plea No. 10, which was nob demurred or replied to. Issue was taken on it. We are not invited, therefore, to pass upon its sufficiency. The averments of the plea are in substance, that the plaintiff was arrested on a warrant issued by a justice of the peace returnable to the criminal court of Jefferson county; that the warrant charged the plaintiff with the commission of a misdemeanor; that the defendant, J. S. Smith, on the failure of plaintiff to give a good and sufficient bail bond for his appearance before the criminal court of Jefferson county, committed him to jail ; that he retained him there until he executed a good and sufficient bail bond ; that as soon as he executed such a bond, the said Smith, as sheriff, released and discharged the plaintiff from prison and set him at liberty. Each of these allegations, as made, was proved, and there is no conflict in the evidence introduced to' sustain these averments. This, then, was sufficient to support the general charge as given, without reference to the issues on the other pleas, on which plaintiff may not have been entitled to the general charge.

5. In such a case, if the plea upon which alone the general charge could be sustained is immaterial or insufficient, as after the trial was suggestad as to this plea, the plaintiff’s remedy is by motion fora repleader, or for judgment notwithstanding the verdiet. The plaintiff did move for such judgment, which the court refused to render. — Winter & Loeb v. Pool, 100 Ala. 503 ; Farrow v. Andrews & Co., 69 Ala. 96; Ilamner v. Pounds, 57 Ala. 348; Locke v. Locke, Ib. 473; Mudge v. Treat, Ib. 1; 1 Chitty on Pl., 668. But if there was error in this matter .it was not here insisted on, and will be treated as waived.

The judgment of the court below is affirmed.