(1) The cause being tried under plea of the general issue only, and the action being in trespass, there could be no justification of the arrest complained of; and the only proper inquiries Avere as to defendant’s responsibility for the arrest, and, if re sponsible, the amount of damages to be assessed.— Womack v. Bird, 51 Ala. 504; Lunsford v. Walker, 93 Ala. 36, 8 South. 386; 19 Cyc. 360.
(2) The undisputed eAddence sIioavs that plaintiff entered and took possession of the house in question at a time AAThen neither defendant nor any of his tenants Avas in its actual possession. He Avas the owner of the premises, and had a right to enter, in spite of defendant’s posted Avarning not to do so, if he did not violate the possession of an actual occupant.
Thereafter the ‘ scrambling possession defendant or ' his tenants, if any of them came on the premises asserting a hostile right, could not effect an ouster of plaintiff so as to render his continued occupancy and entries, though in the face of the posted Avarning, a violation of the criminal statute (Code, § 7827). It is, of course, well settled by our decisions, in accordance with the policy of the statute, that the defendant’s su perior title is no defense to a charge of trespass after Avarning where the prosecutor Avas at the time of the Avarning and of the entry in the actual possession of the premises .- — Lawson v. State, 100 Ala. 7, 14 South 870; Wright v. State, 136 Ala. 139, 34 South. 233. But *680that principle can have no application to the facts of this case, for it must be regarded as elementary law that the owner of premises, having the present right of possession, may always take peaceable possession of his property then vacant, regardless of the warnings of an absent claimant, however soon the latter may intend to reassert a former possession. Plaintiff was not, under all the evidence, guilty of the crime for which he was arrested. We do not overlook the recital of the record that defendant was not allowed to ask plaintiff if he did not enter the house by a window on the north side, and that defendant referred in his testimony to a window on the north side through which plaintiff first entered the house. But that fact, if it was a fact, was irrelevant, and not competent to show that plaintiff went upon defendant’s land, since -a part of the north side of the house was on plaintiff’s land, and there was nothing to suggest that the window in question was not also on his land.
(3) It is suggested that plaintiff may nevertheless have been lawfully arrested, though without a warrant, because he was threatening to commit a breach of the peace in the presence of the arresting officer. It; might be a sufficient answer to say that, in fact, he Avas neither charged with nor arrested for that offense, but specifically for a trespass after warning. But Ave think it is clear that plaintiff’s statement of his general intention to continue his entries into the house was in no sense a threat to commit a breach of the peace — at least not under the circumstances here shown. Nor was it an act done in the officer’s presence which threatened a violation of general law, as predicated in the cited case of Jones v. State, 100 Ala. 88, 14 South. 772.
(4) Plaintiff’s statement to the officer that he had entered the house after being warned not to do so Avas *681by no means a confession that he had violated the criminal law, as assumed by defendant’s counsel.
(5) The assumption is erroneous also that plaintiff’s presence on his own land — lot 13 and the south half of 14 — was an offense in the presence of the officers, since he had not been warned to keep off of those lots.
(6) The circumstances under Avhich the arrest and detention of plaintiff Avere accomplished, though not available under the pleadings as a justification, Avere nevertheless admissible either in aggravation or in mitigation of the damages, as the jury might regard them.
(7) In actions of trespass to either person or property, exemplary damages may be given when the act was oppressive, or when the act Avas committed with violence, or rudely, or with excessive force, or under circumstances of insult or outrage, or in known violation of the laAy. — Ex parte Birmingham Realty Co., 183 Ala. 444, 63 South. 67.
(8) There was some evidence that defendant’s manner was angry at the time he instigated plaintiff’s arrest, and that he threatened to “put him in the coal mines;” and also that he kneAV that plaintiff was the OAvner of the land. Under all the evidence, we cannot say that the question of exemplary damages should not have been submitted to the jury. Moreover, a verdict for $12.50 does not indicate that defendant has suffered any injury from that source.
(9) It is insisted that defendant’s instigation vel non of plaintiff’s arrest by the officer was a question of fact for the jury, and hence the giving of the general affirmative charge for plaintiff Avas erroneous. As we interpret the evidence, however, defendant’s causative responsibility must be declared as a matter of law. According to his own statement, he told the officer, Avho was asking for instructions, that if plaintiff was going *682to persist in going on this property, he wanted him arrested; and, as plaintiff had just declared that intention, and the condition specified by defendant had actually arisen, plaintiff’s arrest, which immediately followed, and which the officer testified was in response to defendant’s request, was in law its proximate and necessary result.
(10) Section 839 of the City Code of Birmingham, authorizing arrest by officers without warrants in certain cases not authorized by any state laws, was not admissible in evidence to show a lawful arrest of plaintiff, in the absence of a plea of justification. We do not hold that it would have been inadmissible under an appropriate plea. See Gambil v. Schmuck, 131 Ala. 321, 31 South. 604.
(11) The docket of the recorder’s court showed that plaintiff was tried on a charge of trespass, and it is urged that this amounted to a variance as to the second count of the complaint, which specifies a charge of trespass after warning. The gravamen of the action is the unlawful arrest and detention of plaintiff, and the variance noted would' not be material. However, the charge entered by the recorder has nothing to do with the charge upon which plaintiff was arrested, which was trespass after warning. Nor can a variance be predicated, on the failure to prove a detention of two days, as alleged, since that was merely one element of damages.
(12) As already shown, the questions of malice and probable cause were for the jury, and the trial judge was not in error in refusing to charge for defendant on the third and fourth counts of the complaint.
(13) And, even if technically erroneous, there would have been no material injury to defendant, since the *683damages under the other counts might have been exactly the same.
(14) There was no claim for damages for the throwing out by defendant of plaintiff’s cot and bedding, which occurred before the arrest. So an instruction to the jury that that could not be recovered for in this action might well have been given, as requested by defendant, though its refusal might not be prejudicial error.
(15) The trial judge properly instructed the jury to find for the plaintiff if they believed the evidence, and also repeated to them the form of their verdict if they so found. The defendant then requested in writing an instruction to the jury as to the form of their verdict, if they found for defendant. He had no right to such an instruction under the circumstances, and its refusal was not error.
(16) There was no error in receiving in evidence for plaintiff the recorder’s record of the proceedings and judgment following the arrest. — 19 Cyc. 366, 367, and numerous authorities cited.
(17) However, plaintiff ivas not entitled to recover any damages for the malicious prosecution of the charge against him by defendant; and, as expressly ruled in Oates v. McGlaum, 145 Ala. 656, 39 South. 607, the refusal of an instruction to that effect for defendant was reversible error.
(18) The manner of defendant at the trial in the recorder’s court, whether angry or otherwise, was not relevant to the issues of this case, and should have been excluded on defendant’s objection.
(19) We do not think it was of material consequence that defendant was not allowed on the cross-examination of plaintiff to show his bias and prejudice as a witness by eliciting the facts that he had prosecuted *684defendant for trespass, and sned him civilly, etc. Surely plaintiff’s bias was sufficiently apparent without such proof.
We have treated either generally or with particularity all of the propositions insisted upon in the brief of counsel, and what has been said should be a sufficient guide for the trial court upon another trial. .
For the errors noted, the judgment will be reversed, and the cause remanded.
Reversed and remanded.
Anderson, C. J., and Mayfield and Sayre, JJ., concur.