
    Reach v. Quinn.
    
      Malicious Prosecution.
    
    (Decided Jan. 19, 1909.
    48 South. 540.)
    1. Appeal and Error; Record; Questions Presented; Demurrer.— Where the record fails to disclose what the amendment to a complaint. was, and the minute entry recites that the demurrer was sustained to the count as amended, the court’s action relative to the demurrer to the amended count cannot be reviewed.
    2. Malicious Prosecution; Gomplaint; Sufficiency. — A count in malicious prosecution should aver the issuance of process; so a count averring only that the defendant maliciously and without probable cause therefor made an affidavit against the plaintiff charging him with refusing or failing to work the public road, and as a proximate consequence thereof plaintiff was arrested, and required to give bond, and that the charge had been judicially investigated and plaintiff discharged is insufficient. And the count is insufficient as a count in trespass for false imprisonment, because it fails to aver that the defendant arrested and imprisoned plaintiff or caused it to be done.
    3. Warrants of Arrest; Signature; Validity.- — -A warrant of arrest issued by a justice of the peace, but not signed by him officially or with the initials of his office, and the official character of the signature nowhere appearing thereon, is invalid, although it is signed by the individual who is the justice. (Sec. 5208, Code 1896.)
    4. Evidence; Judicial Notice; Justices of the Peace. — While the court takes judicial notice of who are the justices of the peace, yet the court cannot judicially know that there are not others of the same name, and hence cannot judicially know that the signature is that of the Justice of the peace issuing ixrocess, where the same is signed, individually, and without insignia of office of any kind.
    5. Same; Parol Evidence; Adding to Terms of Writing. — A warrant of arrest can not be aided as to its validity by parol evidence to show that the person who signed it was a Justice of the Peace; warrants should be valid on their face to authorize their execution.
    Appeal from Bibb Circuit Court.
    Heard before Hon. B. M. Miller.
    Action by W. L. Reach against Oliver J. Quinn. Prom the judgment, both parties appeal.
    Affirmed.
    The fifth count was as follows: “Plaintiff claims of defendant said sum of f 500 as damages, for that said defendant maliciously and without probable cause therefor made an affidavit against plaintiff on a charge of refusing to work the public road, and as the proximate result of the making of such affidavit the plaintiff was arrested, as the defendant intended he should be, and required to give bond for his appearance for trial upon said charge before J. W. Jones, justice of the peace of beat 11, Bibb county, Ala.; and plaintiff avers that such charge had been judicially investigated and determined, and plaintiff herein discharged. And plaintiff avers that by reason of such prosecution the plaintiff lost one day’s work, of the reasonable value of $6, for which he specially sues.” The demurrers raised the question decided in the opinion.
    Lavender & Thompson, for appellant.
    The counts were each in trespass for false imprisonment, and the demurrers were improperly sustained thereto. — 8 Ency P. & P. 845; Rich v. Mclnery, 103 Ala. 345; Oliften v. Gray-son, 2 Stew. 412. Count 5 was good as a count for false imprisonment. — Field v. Ireland, 21 Ala. 240; Davis v. Sanders, 133 Ala. 275. There was no departure.— O’Neal v. McKenna, 116 Ala. 608. Technical accuracy is not required in proceedings before a justice of the peace, and it cannot be said that the official capacity cNes not in some way appear from this warrant. — Hyde v. Adams, 80 Ala. Ill; Watts v. Womack, 44 Ala. 605; Albritton v. Williams, 32 Ala. 647; McCartney v. Branch Bank, 3 Ala. 709. The court takes judicial knowledge of the officers of the state, and their signature. — Whitney v. Jasper L. Co., 119 Ala. 497; Carey v. The State, 76 Ala. 78; Sandlin v. Anderson, 76 Ala. 405; Golemcm v. The State, 63 Ala. 93. The warrant was sufficient. — Brown v. The State, 63 Ala. 97.
    Daniel Collier, and John T. Ellison, for appellee.
    The counts were in case for malicious prosecution.— 
      Davis v. Banders, 133 Ala. 278; Southern C. Oo. v. Adams, 121 Ala. 157; 97 Ala. 626. They were, therefore, wanting in material averments. — McLeod v. McLeod, 75 Ala. 483; Foster v. Napier, 73 Ala. 595; 73 Ala. 42; Shepherd v. Furniss, 19 Ala. 760. There was no error in excluding the warrant. — Oates v. Bullock, 136 Ala. 546; Chambliss v. Blair, 127 Ala. 86. All presumptions are indulged in favor of the ruling of the trial court.— 105 Ala. 201; 114 Ala. 131; 101 Ala. 265. The bill of exceptions should be stricken. — Beale v. The State, 99 Ala. 234. '
   DOWDELL, J.

The first assignment of error goes to the ruling of the court below in sustaining a demurrer to the fourth count as amended. The minute entry incites that the demurrer to the fourth count as amended is sustained, but it nowhere appears from the record in what the amendment to the fourth count, consisted. In this state of the record, not knowing in what the amendment consisted, we cannot review the court’s action.

The fifth count, whether intended as a count in case for a malicious prosecution or as a count in trespass for false imprisonment, was in either aspect faulty, and subject to the demurrer interposed. As a count in case for malicious prosecution, it is faulty in omitting to aver the issuance of process. — Davis v. Sanders, 133 Ala. 275, 32 South. 499, and authorities there cited. As a count in trespass for false imprisonment, it fails to aver that the defendant was arrested and imprisoned,’or caused to be arrested and imprisoned, the plaintiff. Manifestly it was intended by the pleader as a count’in case for malicious prosecution, since it contains all of the necessary averments of such a complaint (form 20, Code 1896, p. 947, c. 91), except the averment of the issuance of the warrant.

There was no error in excluding the warrant offered in evidence. Section 5208 of the Criminal Code of 1896, in reference to warrants, provides, among other things: “And the Avarrant must be signed by the magistrate, Avith his name and initials of office, or the same must in some Avay appear from the Avarrant.” The statute in the latter clause of the foregoing extract seems to emphasize the requirement as to the signature of the officer and the initials of his office appearing on the Avarrant in order to give it validity. The Avarrant offered in evidence was signed by “J. W. Jones” as an individual, and not in any official character, • or Avith the initials of his office, and this noAvhere appeared on the AArarrant. It is no ansAver in such case to say that the courts judicially know who are justices of the peace. This would be true if J. W. Jones had signed the warrant in his official character, by designating himself as such officer by the initials of his office, or letting that fact someAvhere appear on the Avarrant- We cannot judicially know that there is but one J. W. Jones, and hence Avhen J. W. Jones signs a paper as an individual, without more, Ave cannot judicially know that he is a particular officer. We do not think that the paper can be aided as to its validity by parol evidence of the fact that the J. W. Jones who signed it was a justice of the peace. The Avarrant should be valid on its face to justify the officer in executing it. In this connection, see Oates v. Bullock, 136 Ala. 537, 33 South. 835, 96 Am. St. Rep. 38.

We find no reversible error in the record, and the judgment appealed from will be affirmed.

Affirmed.

Simpson, Anderson, and McClellan, JJ., concur.  