The declaration in this case contains five counts, and the defendant has demurred to the whole declaration for a misjoinder of counts, and to each count separately.
The first count in the declaration is a count in trespass on the case.
The second count avers that the defendant falsely and maliciously, &c.,made an affidavit in writing before the clerk of the Circuit Court of Montgomery County, stating in substance that said Furniss had recovered a judgment in said court against said Robert A. Sheppard, and one Allen M. Sheppard, for the sum of seventy-five dollars damages, besides costs, and that the said Robert A. is about to abscond, and that the said Allen M. Sheppard has absconded, and that bail is not required for the pur*764pose of vexing or harrassing said Robert A., &c. The count avers that upon said affidavit and charge, said defendant then and there, to wit, on the 8th of January, 1849, falsely and maliciously caused and procured said plaintiff to be arrested by his body, and to be imprisoned, ánd to be kept and detained in prison, &c. There is no averment in the count that any process was issued by virtue of the affidavit, or that the plaintiff was arrested on or by virtue of any process. It is very clear, that to constitute this a good count in case, it should have averred the issuance of process, that the process should have been properly described, and that it should have further averred that the plaintiff was arrested and imprisoned by virtue thereof. — 2 Chitty's Pl. 601; 1 H. Bla. 49; 1 T. R. 238.
It cannot be contended that the affidavit set forth in this count, although it authorized the issuance of process, authorized any one to arrest the plaintiff. Whenever an injury to a person is effected by a regular process from a court of competent jurisdiction, though maliciously adopted, case is the proper remedy. If, on the other hand, the proceeding complained of was merely irregular, as set forth in this count, the remedy is trespass. — 1 Chitty 136. But the question arises whether this is a good count in trespass. It is not altogether the form of action adopted by the pleader, which determines the character of the count; it may be adjudged trespass or case according to the facts stated in it, and the conclusions which the law draws from those facts. In the case of Ragsdale v. Bowls, (16 Ala. 62,) it was held that a count which avers that the defendant falsely, maliciously, and without probable cause, charged the said plaintiff with the crime of felony, and upon said charge falsely and without probable cause, caused the said plaintiff' to be arrested by his body, and to be imprisoned, and to be kept and detained in prison for a long space of time, to wit, for the space of one day then next following, at the expiration of which time, he, the said defendant, caused the plaintiff to be released, and wholly abandoned his prosecution, is a good count in trespass for false imprisonment. The decision rests on the ground that the averment, that the defendant caused and procured the plaintiff to be arrested by his body and imprisoned, is plainly the averment of a forcible injury, and rejecting as surplusage that part of the count stated as inducement, it becomes a good count in trespass. *765We consider the decision in the case referred to decisive of this case, for the material averments in the counts in both cases are substantially the same. It follows that the first count in the declaration being in case, and the second in trespass, there is a misjoinder of counts, and the demurrer was properly sustained.
The judgment is affirmed.