| Ala. | Jun 5, 1913
— Conceding, without deciding that the facts in evidence show an unlawful restraint of plaintiff’s person for which an action lies against the sheriff and his bondsmen, yet the general affirmative
1. The action is against the sheriff and his bondsmen jointly and contains three counts, the first two of which are, respectively, for an unlawful imprisonment and for an assault and battery by the defendants. Obviously on these two counts the evidence makes no case against the bondsman, who was liable, if at all, only by contract for the breach of the sheriff’s official bond. Hence the charge requested should have been restricted to the third count, which is for breach of the bond, or else restricted to a recovery, against the sheriff alone.
2. The first and third counts, grounded on a false imprisonment, declare that the act was maliciously done. While malice is not an essential element of false imprisonment, yet, when the offense is thus characterized in the complaint, malice must be proved or the case fails. —Rich v. McInerny, 103 Ala. 345" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/rich-v-mcinerny-6515710?utm_source=webapp" opinion_id="6515710">103 Ala. 345, 354, 15 South. 663, 49 Am. St. Rep. 32; Fuqua v. Gambill, 140 Ala. 464" court="Ala." date_filed="1903-11-15" href="https://app.midpage.ai/document/fuqua-v-gambill-6520397?utm_source=webapp" opinion_id="6520397">140 Ala. 464, 37 South. 235.
There is nothing in the evidence here to indicate malice in the unlawful restraint of plaintiff by the sheriff or his deputy, certainly not as matter of law. For this reason also it cannot be held that the verdict was contrary to the law or the evidence.
The two special charges, if material, are not referred to in argument and need not be considered.
No error appearing, the judgment will be affirmed.
Affirmed.