Kelly v. Moore
51 Ala. 364
Ala.
1874
Check Treatment
BRICKELL, J.

Since the Code, only substantial defects in a complaint are available on error, after a judgment by default. Browder v. Gaston, 30 Ala. 677; Childress v. Mann, 33 Ala. 206; Douglass v. Beasley, 40 Ala. 142. A material inquiry in this case is, whether the complaint contains a substantial cause of action. The gravamen of the complaint is, that one of the defendants, who was a justice of the peace,under color of his office, without any reason or probable cause therefor, caused the plaintiff to be arrested and 'imprisoned, and that to procure his release from such imprisonment, the plaintiff, at great expense, was compelled to resort to the writ of habeas corpus. The complaint is not carefully drawn, and would probably have been subject to demurrer, if it had been interposed. But, under the authority of McElhaney v. Gilleland (30 Ala. 183), it must, we think, be regarded as presenting a “ substantial cause of action.” It avers the arrest and imprisonment of the plaintiff, without reason or probable cause, by the defendant McGovern, under color of his office of justice of the peace. It must be observed, the wrong complained of is not an erroneous or corrupt exercise by the justice of the jurisdiction the law confers. It is an abuse of the authority of his office; a pretended, not a real exercise of his *366jurisdiction. “ Under color of bis office,” be arrests and imprisons the plaintiff. This was a misdemeanor at common law, and a tort for which an action could have been maintained against the justice. The sureties on his official bond would not, at common law, have been liable for this tort. The malfeasance of their principal, of which misfeasance could not also be predicated, was not within the scope of their obligation. Governor v. Hancock, 2 Ala. 728; McElhaney v. Gilleland, 30 Ala. 183. This was deemed a defect in the common law, and to cure it the statute now extends the liability of sureties on official bonds to injuries from wrongful acts done by the officer under color of his office, as well as to the non-performance, or negligent performance of official duty. R. C. § 169. The complaint avers the wrong, as we have stated, the official character of McGovern, and the execution of an official bond, with the other defendants as sureties. Plowever inartificial these averments may be, they must, after judgment by default, be deemed to disclose a substantial cause of action against all the defendants jointly.

There was no error in the rendition of judgment at the first term, the summons having been executed twenty days previous to the return day thereof. We do not deem it necessary to inquire what is the form of action adopted by the pleader in deciding this question — whether it is trespass or case. Whether the one or the other, under the statute (R. C. § 2660), it was properly triable at the first term. The purpose of the statute was to render every action, commenced by summons, for a tort, or founded on contract made subsequent to 25th July, 1865, triable at the first term, if the summons had been served twenty days previously. True, the statute does not nominate an action on the case, as one of the actions so triable, but it 'does nominate “ actions of trespass.” Trespass, in its most extensive signification, includes every description of wrong, for which an action will lie. Hence, at common law, an action on the case was called “ trespass on the case.” The form of the declaration was, “A. B. complains of C. D., of a plea of trespass on the case.” It is evident from the reading of the statute, that the intention was to render every action for a tort triable at the first term, when suit was commenced by summons ; and it is but a just construction to accept the phrase “ actions of trespass,” in its largest signification, as embracing as well the action on the case, as the technical action of trespass vi et armis.

There is no error in the record, and the judgment of the , court below is affirmed.