
    John W. Wilkins vs. Ainsley Hall and William Hall.
    An action of Trespass for false imprisonment under a ca, sa. can not be supported as long- as the cvecudon on its face, remains unsatisfied* 
       or oven where there is but cost due.
    THIS was an action of trespass for false imprisonment, in rulieioüsíy causing the plaintiff to. be acreded on a ca. ca. The dovoudanlts bad obtained a judgment in the Common Pleas, against the plaintiff in this action, and subsequently, about February, 1821, the defendant, S. Hell, entered into an agreement with the plaintiff, by which, he was to allow him one and two years to pay tlie money. The eon si deration for this arrangement, was that Mr. Bar-vet l, who had purchased a house and lot of Wilkins, in Columbia, sold at sheriffs sale, at®6,100, bad relinquished Irs bargain in favour of the defendant, and it was agreed that the defendant should hold it as security, as well for the price paid, as for the debt due by the plaintiff to the defendant. The plaintiff was to have two years to pay ine money, in equal annual instalments, and if it became necessary to sel! the house and lot, and it should bring a larger sum, the surplus was to be settled on the plaintiffs wife, S/c. A written agreement was prepared and tendered to the defendant, which he refused to sign, as some difference took place between ins parties about the terms of it, and the defendant, Wm. Hall, in the absence of,/?. Hall, and so far as appeared from-the evidence, without his knowledge or consent,, directed a ca. sa. to be issued, against the plaintiff, on which he was arrested by the sheriff, on the 17th of May following, and was confined to the prison bounds, until the 23rd of June, when he was discharged by an order from the Court of Equity, growing out of a bill for an injunction to stay proceedings at law. The sheriff, who made the arrest, stated that he never laid his hands on the plaintiff, at the time of the arrest ; that he met him in the street and informed him that he had the ca. sa. and he requested permission to go in pursuit of a friend to be his security, to keep the prison bounds; that he came shortly after to his office, and with bis friend, entered into the usual bend, and never was. within the prison wails.
    «3. Thill returned home before the plaintiff was discharged from the prison hounds, but it did not appear that he took any part in the transaction.
    When the plaintiff closed his evidence, a motion was made for a nonsuit on the following grounds :
    1st, That the action oftrespass would not lie, in as muck as no actual force on the person of the plaintiff bad been, used in making the arrest.
    2nd. That the arrest was justifiable, as the costs were unpaid, and were not nor could be included in the agreement to give time for payment of the judgment.
    
      3<'d. That the plaintiffs judgment being unsatisfied an'1 in full force, gave him a legal right to arrest the chiendantonca. sa. notwithstanding the supposed agreement, to give time for pajment, and if the violation of genu .faith as respected the agreement, was the foundation of au action, the remedy was by action on the case, and not trespass vi et armis.
    
    The court was of opinion with the defendant on the two last grounds, and non-suited the plaintiff.
    This was a motion to set aside the nou-suit.
    
      
      
         See Reynolds vs. Corp, 3 Caines' Rep. 269, R.
    
   Mr. Justice Null

delivered the opinion of the court :

It might be sufficient in this case to say, that the costs being due, would protect the defendants from an action of false imprisonment for causing; the plaintiff to be arrested on the ca. sa. — but they stand on much stronger ground. The whole debt remained unsatisfied. Some stipulation had been proposed between the parties, by which it was agreed that the execution should be stayed ; but it was a mere secret contract without any consideration that we can see, and the precise terms of which we do not know. It appears not to have been closed, because the parties differed about the terms of it — it certainly could not operate as a discharge of the execution. If the defendants had been guilty of a breach- of faith, or of a breach of contract, they might have been liable to some other action. But they could not be liable to an action of false imprisonment, as long as the judgment and execution remained unsatisfied.

Levy Sr Chappell, for the motion.

McCord S,- Gregg, contra.

The defendants appear -to me to be equally justifiable upon moral as well as legal principles. The plaintiff’s house had been sold — he was for ever divested of it, if the purchaser had been disposed to have kept it, and probably would have done so, if the defendants had not stepped in to the plaintiff’s relief. They agreed to advance the money for him, to take the house as security for that and their own debt, and to give him two years to pay the money, but when a written agreement was tendered, he refused to sign it: whether that agreement was in conformity with the verbal contract, does not appear — but it at least appears that the bargain had not been finally concluded ; the defendants then had no alternative but to proceed with their execution.

The motion therefore must be refused.

Justices Johnson, Huger and Richardson, concurred.  