¶1 On Rehearing.
¶2 It is urged, for the first time, that the record fails to disclose notice of the appeal upon Gilbert, one of the defendants. True, the demurrers do not purport to be by Gilbert, but the judgment entry recites that the defendant, “Van Burén Gilbert, in person and by attorneys” appeared. The clerk’s citation is to both defendants, and the sheriff’s return recites the service of notice of the appeal upon J. Foy Guin, “as one of the attorneys of record for the defendants.” We will therefore assume, in the absence of evidence to the contrary, that said Guin was one of the attorneys for Gilbert as well as the Indemnity Company. Millican v. Livingston, 207 Ala. 689, 93 So. 620.
¶3 It is next contended, for the first time, upon this application, that count 2 is bad, in that it fails to aver that the writ of arrest was sued out without “probable” cause. “The stafement that it is sued out without ‘proper’ cause falls short of the statutory allegation.” As to this, we can only quote the record; count 2 says: “And maliciously and without probable cause therefor caused the plaintiff to be arrested,” etc.
¶4 The application is denied.