Holly v. Carson

39 Ala. 345

Opinion

PHELAN, J.

The complaint in this case, though designed, no doubt, as an “ action on the case for a malicious prosecution,” and manifestly so considered and treated by the court below, is in fact a complaint in trespass. The form of complaint given in the Code at page 554, under the head “ For false imprisonment,” is the one adopted in this case; and this court has decided, in the case of Williams v. Ivey, (37 Ala. R. 244,) that such a complaint is in trespass, and not in case. To make it “case for a malicious prosecution,” it was necessary that it should have contained aver-ments — 1st, that the arrest was made under process; and, 2d, that the prosecution was ended and determined.—2 Chitty’s Pl. 206, and notes; Ragsdale v. Bowles, 16 Ala. 62. It contained neither.

[2.] In this view of the case, all the testimony introduced by the plaintiff,' showing the affidavit of defendant for plaintiff’s arrest, the warrant, and defendant’s arrest under it, and the giving of bond for his appearance to answer the charge of forgery, were irrelevant, and, had they been objected to, should have been excluded. Eor the same reason, the testimony of Wm. Davis, of what was said and done before the grand jury, on the charge of forgery made by defendant against the plaintiff; and the testimony of the witness Ganey, in relation to the calculation of interest on the note in the civil suit between them, out of which the charge of forgery grew, being all irrelevant to the issue, and having been objected to by defendant, should have. been excluded by the court.

For this error, the judgment below is reversed, and the cause remanded~