This is an action brought by the appellee against the appellant and the sureties on his official bond as constable. The complaint sets forth the bond and alleges in what the breach consisted. There are three assignments of breaches, in each of which the particular facts constituting the breach are definitely stated, and with appropriate averments showing that the acts complained of were committed under color of office. Besides, the general claim for damages, special damages are averred and claimed. Demurrer was interposed to the complaint, but it was unobjectionable for any of the grounds specified. The demurrer being overruled, the defendants thereupon filed 14 pleas. On motion of the plaintiff pleas 2, 3. 6, 7, 8, 9, and 10 were stricken. Neither of these pleas contained a single element of a valid defense to the action, and were therefore properly stricken on motion as being irrelevant and frivolous. Code 1896, § 3286; Couch v. Davidson, 109 Ala. 313, 19 South. 507.
Pleas 4, 5,11, and 12 were bad for the reasons pointed out in the demurrers to these pleas, and the demurrers were therefore properly sustained. This case falls directly within the influence of the decision of the case of Gay v. Burgess, 59 Ala. 575, followed in the case of Elrod v. Hamner, 120 Ala. 463, 24 South. 882, 74 Am. St. Rep. 43. The failure and refusal of the officer to delived the property on the execution and tender of the bond to him within the five days, an imperative duty imposed on him by the statute, and his delivery of it to another person, made him a trespasser ab inito, and liable for all damages naturally resulting from s.uch misconduct.
Special damages are claimed for counsel fees paid by the plaintiff in a suit brought by him for the purpose of recovering his' property, which the defendant had *353wrongfully withheld and- delivered into thé possession of another. Such damages were recoverable, being the natural consequence of the defendant’s wrong and breach of official duty. — Ross v. Malone, 97 Ala. 529, 12 South. 182; Field on Damages, p. 591, § 732; Id. p. 663, § 833.
The question of damages for loss of time claimed in the complaint need no.t be considered, since no evidence was offered along this line. The abandonment of this claim by the plaintiff eliminated all questions raised during the trial relative thereto.
The complaint avers, as an element of special damages claimed, loss of the possession and use of the horse in question. We think this claim, when taken in connection with the claim for attorney’s fées incurred in prosecuting a detinue suit for the recovery of the horse, can mean nothing more than damages for the use of the horse during the time the plaintiff was deprived of the possession, and not for the value of the horse. Under the rulings of the trial court the jury were left to assess the damages according to the value of the horse, as though the special claim had been for the loss of the horse, instead of for the use during the time of detention. In this respect the trial court was in error, and for this error the judgment is reversed, and the cause remanded.
Reversed and remanded.
All of the Justices concur.