Sturdevant v. Gains

ORMOND, 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 trespass. In Taylor v. Rainbow, [2 H. & M. 423,] this recital was held sufficient to characterize the declaration as one in case, and this decision has been adhered to [438] in many subsequent cases. [See Lomax v. Hood, 3 H. & M. 276.] It is also apparent that the pleader intended to charge the imprisonment as resulting from legal process, as he alleges that the plaintiff was discharged therefrom by the judge of the county court on habeas corpus, that the prosecution is ended and determined, and that the detention was without probable cause, allegations which would be wholly unnecessary in a count in trespass vi et arrrds, and appropriate only to a count in case for a malicious prosecution. Although therefore this count is exceedingly inartificial, and the demurrer to it was properly sustained, judging of it from its structure, we cannot say that it was intended to be a count in trespass. [See Savignac v. Roome, 6 D. & E. 125.] The 12th rule of practice, for the government of the circuit and county courts, requires the court to reject pleas in abatement, unless it appear from the endorsement of the clerk that they were filed in proper time. Such was the predicament of the plea in this case, but it is supposed that as there was leave to amend the declaration, the rule does not apply. It is true that the defendant could not plead until there was a declaration to plead to, and if the time to amend had been extended to the next term of the court, the plea in abatement would have been in time. But the recoid does not disclose that such was the fact. No time appears to have been given, and the amendment may, for aught this court can know, have been made instanter. It is not therefore shown upon the record that the court erred in rejecting the plea on motion of the plaintiff. We do not consider it necessary that we should decide whether the admission by the plaintiff, that the affidavit and warrant under which he was arrested, at the instance of the defendant, were those acted on and issued by the justice of the peace, made the papers evidence, so as to authorize him to read them after-wards, the defendant having declined to avail himself of the admission, because we think the proof that they were in the handwriting of the justice before whom the affidavit was taken, and by whom the warrant was issued, was sufficient evidence, prima facie at least, to authorize their introduction as evidence of the authority under which the arrest was made. To hold that no proof but that of the justice himself was sufficient testimony of the genuineness of the affidavit and warrant, would frequently amount [439] to a denial of justice, as he might be dead or beyond the jurisdiction of the court. Such appears to have been the fact in this instance. We think the preliminary proof offered in this case, of the loss of the writ of habeas corpus, and the discharge of the plaintiff from imprisonment, was sufficient to authorize secondary proof of its contents. This question has been repeatedly before this court. In the recent case of Jones v. Scott, [2 Ala. Rep. 61,] it is stated that no fixed rule can be laid down applicable to this class of cases; “that in general a search must be made where the lost paper was last known to be, and that where the presumption can arise that the paper may be improperly withheld — much stricter proof will be required of the loss, and a more rigid search exacted than in a case where no such presumption can be made.” These remarks are quite applicable to this case. Search was made where the paper was last known to be, only three days before — the document itself was of such a nature that there could not well be any dispute about its contents, and therefore no conceivable motive could exist for withholding it. We cannot say that half an hour’s search in a lawyer’s office, was not sufficient to ascertain whether the paper was not where it was left, nor in the absence of any fact indicating that it might be found elsewhere, can we perceive that there was any necessity to search elsewhere for it. If the admission that' the paper, on further search where it was last known to be, or elsewhere, might still be discovered, would preclude the secondary evidence, it would annihilate the rule in all cases where the lost paper was not proved to be destroyed as well-as lost, as othei’wise there must always be a possibility that it may yet be found. Let the judgment of the court below be affirmed.