BLACKBURN vs. MINTER, 22 Ala. 613

PHELAN, J. The construction heretofore put upon the statute allowing a plaintiff to take a non-suit, and have any question of law that may be ruled against him reviewed in that way, (Acts of 1845-46, p. 35,) is adverse to the limited view of its operation urged upon us by defendant in error, in support of his motion to dismiss. We prefer to follow the construction and practice hitherto adopted, and therefore refuse the motion to dismiss the writ of error. See Shields v. Byrd, 15 Ala. 818; Tate v. McCrary, 21 ib. 499; Duncan v. Hargrove, 22 ib.

The right of the defendant below to show, in defence of the action, that a prosecution for a felony was pending against him, resting on the same set of facts upon which the plaintiff’s action for damages is based, is well settled by previous decisions of this court, and for that doctrine we merely refer to those decisions. McGrew v. Cato, Minor 8; Morgan v. Rhodes, 1 Stew. 70; Middleton v. Holmes, 3 Por. 424.

The right to introduce the record of the pending prosecution for felony, and to show by parol proof that the indictment and the civil action are both founded on the same transaction, results, as a necessary consequence, from the doctrine so established.

The charge given by the court was, accordingly, correct; and that requested by the plaintiff was properly refused, for the reason, that the defence relied on depended, not upon the fact whether a felony had or had not ■ actually been committed by the defendant, but whether a prosecution for a felony, growing out of the same transaction, was pending and undetermined at the time the civil action was begun. There is no error in the record, and the judgment below is affirmed.