This is an action for false imprisonment and not malicious prosecution, hence the facts set up in defendants' refused charge 3 had no bearing upon the issue involved, and it was properly refused. This criticism is also applicable to defendants' charge 2.
Charges 4 and 6, whether correct or not, were fully covered by defendants' given charges, as well as the oral charge of the court, and which were most favorable to the defendant. Moreover, charge 6 was bad in instructing for the defendant if the original arrest was made in good faith, and unless Simpson had no reasonable cause to believe that the plaintiff was the man wanted in Chambers county. All of this may have been true when the arrest was made, but there was evidence from which the jury could infer that Simpson discovered the fact that the plaintiff was not the right man upon reaching Birmingham and subsequently took him to Chambers county and placed him in jail, and which could amount to false imprisonment notwithstanding the original arrest may have been made under the circumstances hypothesized in the charge. For like reasons there was no error in refusing the defendants' requested charge 14. Although the defendant Simpson may not have been connected with or responsible for the original arrest in Birmingham if after he got there and discovered that the plaintiff was not the man wanted, a fact which could be inferred by the jury, he had no right to take him to Chambers county and place him in jail and which would be a false imprisonment covered by the complaint.
Under the often cited case of Cobb v. *Page 16 Malone, 92 Ala. 630, 9 So. 738, we cannot put the trial court in error for refusing the motion for a new trial. Indeed, if any error was committed upon the trial of this case, it was in the interpretation of the law as to the right to arrest the wrong person too favorably to the defendant. The defendant Simpson went to Birmingham armed with a warrant and it was his right to arrest only the man called for in said warrant and, if he made a mistake, though in good faith, he was liable though the good faith would go in mitigation of the damages. Sugg v. Pool, 2 Stew. P. 196; 5 C. J. 394; 25 C. J. 490; Blocker v. Clark, 126 Ga. 484, 54 S.E. 1022, 7 L.R.A. (N.S.) 268, 8 Ann. Cas. 31, and note on page 34.
The judgment of the circuit court is affirmed.
Affirmed.
SAYRE, GARDNER, and MILLER, JJ., concur.