Nicholson v. Killpatrick

ANDERSON, C. J. It may be that the bail of a defendant bad the right to arrest him without process of axxy description under the common law; yet it is settled in this state that the only authority he has to arrest the defendant is under a cex’tified copy of the bond as prescribed by section 6351 of the Code of 1907. This court in construing said statute held that the right there given was exclusive, and not cumulative (Gray v. Strickland, 163 Ala. 344, 50 South. 152), and we are not inclined to depart from said holding. . Special plea 5 was, therefore, subject to an apt ground of demurrer. We caxxnot, however, put the trial court in error for overruling a, demurrer to this plea, as the record does not disclose the demurrer to said plea, and presumptively it, if interposed, was inapt, and the action of the trial court ixx overruling same must be sustained. [261] It is a general rule that when issue is taken on an immaterial or improper plea and the said plea is proven without dispute the pleader is entitled to the general charge; but plea 5 was not proved beyond dispute, as it avers, among other things, that the defendant had cause to believe that the plaintiff was in the act or was preparing to abscond, and this was a question for the jury. The trial court, therefore, erred in giving the general charge for the defendant as to count 4. It may be true that the only assault and battery shown was in arresting the plaintiff, but if the arrest was unlawful it was an assault and battery, and, as the defendant did not prove what he made a material averment of his plea 5, he was not entitled to the general charge as to count 4, and which was improperly given. With plea 5 in, the trial court did not err in permitting the introduction of the bond, indictment, etc., in justification, but for the purpose of another trial if the issues are made under the Gray case, supra, these papers should be admitted solely for the purpose of mitigating the damages. The judgment of the circuit court is reversed, and the cause is remanded. Beversed and remanded. McClellan, Sayee, and deGeaeeeneied, JJ.. concur.