140 Ala. 545 | Ala. | 1903
The first count in the complaint is for false imprisonment, and not for malicious prosecution, as defendant’s counsel by demurrer seems to as
There were other counts, numbered 2, 3, 4, and 5. Demurrers to tbe first three of these, were overruled and issue was joined on them. There was no demurrer to tbe 5th, and issue was joined thereon.
Tbe court struck a part of count 5 on motion of defendant, and overruled plaintiff’s motion to strike a part of defendant’s plea numbered 2. In argument no insistence is made or assignment of error for either of these rulings. In tbe argument in brief of plaintiff be merely states, that these rulings were erroneous, which amounts to no more than is stated in tbe reservations of exceptions to tbe same.
Special plea 2 fails to deny malicious arrest, but if that be.a fault, it was not demurred- to on this ground. It was demurred to because it did not aver that tbe offense was committed in tbe presence of tbe arresting officer; that there was no law authorizing a licensed tax collector to make an arrest for engaging in any business without a license, unless said officer should have a warrant or writ of arrest. Tbe demurrer was overruled. Tbe plea was subject to these grounds of demurrer. It failed to aver that tbe offense was committed in tbe presence of tbe arresting officer, or that be bad a warrant for tbe arrest of defendant.—Gambill v. Schmuck, 131 Ala. 331. Section 323 of the City Code, under which tbe prosecution was commenced, merely makes it unlawful for any person to engage in business for which a license is required, (and tbe business of a lawyer would fall in that category), before having paid for and taken out a license, and on conviction for its violation, a penalty is prescribed; but it does not authorize such offenders to be arrested without a warrant. If under tbe general law, (Code, § 5211), the defendant might have been arrested if be practised law without a license in tbe presence of tbe officer, we need not decide, for as stated, tbe
After the demurrer to this plea was overruled, issue was joined on it, and the plaintiff filed special replications thereto, numbered 2 and 3, which do not appear to have been questioned by demurrer, and issue was joined on them.
There were many charges asked by plaintiff which were refused, and a number requested by defendant which were also refused. The general charge for each was of the number.
Without reviewing these requested instructions, we may say, that the evidence established without conflict, that the arrest was made for carrying on the business of a lawyer, any! that it was made without any warrant or writ of arrest. Whether defendant was a duly appointed and qualified policeman or not, at the time of the arrest, — about which much evidence was introduced and much argument is here indulged by plaintiff’s attorneys, taking the negative of that proposition, — we need not consider, for, if a qualified officer, he had no right to arrest the plaintiff without a warrant or writ of arrest; or, if his acts were attempted to be justified on the score of his having been an officer de facto; or, if he acted as a private citizen in making the arrest, he was equally without authority to make it; and, in the absence of such authority, in either instance, the arrest was unlawful, and the plaintiff was entitled to the general charge, which was refused him. Moreover, the plaintiff had a license to practise law, for which the city had been paid in money. If Gambill had a claim against him for the check that plaintiff gave him, that was an individual matter between plaintiff and himself.
Reversed and remanded.
