Sturdevant v. Gains
Supreme Court of Alabama
Ekroe, to the Circuit Court of Wilcox. The writ in this case was sued out by the defendant in error, against the plaintiff in error, to answer in a plea of trespass vi et armis. At the return term, the plaintiff obtained leave to amend his declaration.
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Ekroe, to the Circuit Court of Wilcox. The writ in this case was sued out by the defendant in error, against the plaintiff in error, to answer in a plea of trespass vi et armis. At the return term, the plaintiff obtained leave to amend his declaration. A declaration was afterwards filed, ihe first count of which is in the ordinary form for a malicious prosecution; the second count is, and also for that whereas, the said defendant, at to wit, &c., did cause to he seized, arrested and imprisoned in-the common jail of Wilcox county, the body of the said plamtiflj and there caused him to be…
1Opinion of the CourtOrmond, J.
The question of misjoinder depends upon the character of the second count, whether it is in trespass or in case. The count is very inartificially drawn, but we are to determine its species from its general form and structure. Unaided by the writ, we think it manifest that it was designed by the pleader to be a count in case. It is not alleged, directly and positively, jds in trespass it should have been) that the imprisonment complained of was the immediate abt of the defendant, but it is stated by way of recital; “ that whereas, &c.” This is contrary to all the precedents in an action of…
2Cases cited1 opinion
- Jones v. ScottSupreme Court of Alabama · 1841
3Cited by4 opinions
- Cobb v. Miller, Ripley & Co.Supreme Court of Alabama · 1846
- Shields v. ByrdSupreme Court of Alabama · 1849
- Comstock v. Meek & Co.Supreme Court of Alabama · 1845
- Abrams v. SealeSupreme Court of Alabama · 1870