
    [Philadelphia,
    January, 25, 1836.]
    LEE against CONARD.
    IN ERROR.
    Where the declaration, in an action on the case, alleged that the defendant wrongfully and unjustly sued out an execution upon a judgment which he had entered against the plaintiff, and by virtue thereof, wrongfully and unjustly caused the land of the plaintiff to be seized and sold, &c.; knowing the judgment to be paid and satisfied; it was held that evidence was not admissible to prove that the debt, for which the judgment had been entered, was paid before the entry thereof.
    Upon a writ of error to the District Court for the city and county of Philadelphia, the case was thus:
    To June Term, 1833, of that court, Cornelius Conard brought an action on the case against William Lee, in which the following declaration was filed.
    “ Philadelphia County, ss.
    
    William Lee, late of Philadelphia county, yeoman, was summoned to answer Cornelius Conard of a plea of trespass on the case, &c.
    And, whereupon the said Cornelius Conard by Jesse Conard his attorney complains, that" whereas, before the committing of the grievances by the said William Lee, hereinafter mentioned; the said William Lee did, on the 80th day of July, 1831, cause and procure a certain judgment to be entered upon the record of the court of Common Pleas of the county of Chester, against the said Cornelius Conard, and in favour of the said William Lee, for the sum of one thousand and ninety dollars, money of the United States of America, debt, besides costs, &c. And, whereas, before and at the time of the committing of the grievances by the said William Lee, as hereinafter mentioned, the said judgment had been fully paid and satisfied: yet the-said William Lee, well knowing the premises,' but contriving and wrongfully and unjustly intending to injure and aggrieve the said Cornelius Conard in that behalf, heretofore, to wit, on the 30th of July, 1831, caused and procured a certain writ offieri facias to be issued out of the court of Common Pleas of the county of Chester, founded upon and under colour and pretence of the said judgment, and whereby the sheriff of the county of Chester aforesaid, was directed to levy on the goods and chattels, lands and tenements of the said Cornelius Conard, in the bailiwick of the said sheriff, as well a certain debt of one thousand and ninety dollars, as also seventy-two shillings damages, and that the said sheriff should have those moneys before the judges at West Chester, at the county coui’t of Common Pleas, there to be held the first Monday in August next ensuing; and then and there wrongfully and injuriously caused and procured the said writ offieri facias to be endorsed to the said sheriff to levy six hundred and nineteen dollars and two cents, as due upon the said judgment, besides sheriff’s poundage, officers’ fees, and other incidental expenses; and afterwards, to wit, on the 30th of July, 1831, wrongfully and unjustly caused and procured the said writ offieri facias, so endorsed, to be delivered to Oliver Alison, Esq. then sheriff of the said county of Chester; and then and there caused and procured certain lands and tenements of him the said Cornelius Conard, in the bailiwick of the said sheriff to be seized, taken in execution, condemned and subjected to sale under colour and pretence of the said writ for the said sum of six hundred and nineteen dollars and two cents, besides sheriff’s poundage, officers’ fees, and other incidental expenses.
    And the said Cornelius Conard, by his attorney further complains, That, whereas, before the committing of the grievances by the said William Lee, hereinafter mentioned, the said William Lee did on the 30th day of July, 1831, cause and procure a certain other judgment to be entered upon the record of the court of Common Pleas of the county of Chester, against the said Cornelius Conard, and in favour of the said William Lee, for the sum of one thousand and sixty dollars, money of the United States of America, debt, besides costs, &c. And, whereas, before and at the time of the committing of the grievances by the said William Lee, hereinafter mentioned, the said last mentioned judgment had also been fully paid and satisfed: yet the said William Lee well knowing the premises, but contriving and wrongfully and unjustly intending to injure and aggrieve the said Cornelius Conard in that behalf, heretofore, to wit, on the 30th of July, 1831, wrongfully and unjustly caused and procured a certain writ oí fieri facias to be issued out of the court of Common Pleas of the county of Chester, founded upon and under pretence of the said judgment, and whereby the sheriff of the county of Chester aforesaid was directed to levy the goods and chattels, lands and tenements of the said Cornelius Conard, in the bailiwick of the said sheriff, a certain sum of one thousand and sixty dollars debt, and seventy-two shillings damages, and that the said sheriff should have those moneys before the judges at West Chester, at the county court of Common Pleas, there to be held the first Monday in August next ensuing ; and then and there wrongfully and injuriously caused and procured the said writ of fieri facias to be endorsed to the said sheriff, to levy six hundred and one dollars and ninety-nine cents, as due upon the said judgment, besides sheriff’s poundage, officers’ fees, and other incidental expenses: And afterwards, to wit, on the 30th day of July, 1831, wrongfully and unjustly caused and procured the said writ of fieri facias so endorsed as aforesaid, to be delivered to Oliver Alison, Esq. then sheriff of the said county of Chester, and then and there caused and procured certain lands and tenements of him, the said Cornelius Conard, in the bailiw'ick of the said sheriff, to be seized, taken in execution, condemned and subjected to sale under colour and pretence of the said writ for the said, sum of six hundred and one dollars and ninety-nine cents, besides sheriff's poundage, officers’ fees, and other incidental expenses. Again, the said William Lee, well knowing the premises, but contriving and fraudulently and unjustly intending to injure and aggrieve the said Cornelius Conard in that behalf, heretofore, to wit, on the 21st of November, 1831, wrongfully and unjustly caused and procured a certain writ of venditioni exponas to be issued out of the said court of Common Pleas of Chester county, whereby the sheriff of the said county was directed that the lands and tenements in form as aforesaid, seized and taken in execution by virtue of th e fieri facias, aforesaid, without delay, he should expose to sale, and the money mentioned in the fieri facias aforesaid, should have before the judges at West Chester, at their county court of Com» mon Pleas, on the last Monday of January then next ensuing, and •then and there wrongfully and injuriously caused and procured the Said writ of ve.nditioni exponas to be endorsed to the said sheriff to levy five hundred and fifty-five dollars and sixty-two cents, as due .upon the said writ, besides costs, &c. and afterwards, to wit, on the 21st November, 1831, wrongfully and unjustly caused and procured the said writ, so endorsed as aforesaid, to be delivered to Peter Osborne, Esq. then sheriff of the said county of Chester, and then and there caused and procured the lands and tenements of him the said Cornelius Conard, in the bailiwick of the said sheriff, so as .aforesaid seized and taken in execution, condemned and subjected to sale by virtue of the jfieri facias aforesaid, to be sold to Thomas Davis, of the county of Chester, for the sum of one thousand seven hundred and sixty-six dollars, and for a much less sum of money, to wit, the sum of one thousand five hundred dollars, less than the •same tenements were really worth, whereby the said Cornelius Conard lost his lands and tenements aforesaid; and the said Cornelius Conard, in order to obtain the money arising from the safe of the said lands and tenements upon the said venditioni exponas, was forced and obliged to pay and did pay a large sum of money, -to wit, the sum of one thousand dollars, &c. Wherefore the said Cornelius Conard saith that he is worse and hath damage to the ¡amount of three thousand dollars, and therefore he brings his .suit, &e. ■ Jesse Conard, Attorney.”
    To this declaration the defendant pleaded “not guilty, with leave .to give the special matter in evidence,” &c.; and issue being joined, ■the cause came on for trial on the 18th of December, 1834. The plaintiff’s counsel in his opening, stated that the plaintiff formerly ¡resided in Chester county, in the state of Pennsylvania; that in the month of March, 1829, he purchased from the defendant a fann in ■Cape May county, New Jersey, for the price of two thousand five hundred dollars, of which he paid five hundred dollars in cash and gave his bonds for the remaining two thousand; one bond payable in six months, one in twelve months, one in eighteen months, and ,one in twenty-four months; each for five hundred dollars; payable with interest, and dated the 25th day of March, 1829; that the plaintiff also gave the defendant four notes drawn by himself and .endorsed by John Conard, corresponding with the said bonds, and that the defendant gave the plaintiff a written agreement, stating the whole transaction, and stipulating that as the notes were severally paid, the corresponding bond should be cancelled and given •up: that the first three notes were paid and taken up when due: that the third note was paid and taken up by the plaintiff’s agent, .John Conard, but was afterwards given by Richard Pryor to the .defendant, to be held by him as collateral security for the payment ,of another note drawn by the defendant fo,r the accommodation of 
      John Conard, but with which the plaintiff had nothing to do; the bbject being to obtain the defendant’s consent to the renewal 0/ ■John Conard’s note: that under the judgments entered by the defendant upon the bonds, the sheriff had sold the plaintiff’s land for at least one thousand dollars under value: that rules were obtained by the plaintiff, (Conard,) to open these judgments which were made' absolute, whereupon declarations were fifed, pleas entered, and the' cases put on the trial list, and that when they were reached for trial,the defendant (Lee) suffered a nonsuit.
    The plaintiff’s counsel having offered evidence accordingly, the defendant’s counsel objected to its admission on the ground that it did not support either count in the declaration; but the court permitted the evidence to be given; and the defendant’s counsel tendered a bill of exceptions.
    The plaintiff having given in evidence the original agreement of the parties, and the promissory notes drawn by the plaintiff and endorsed by John Conard, examined Richard Pryor; who testified in substance, that, on the 17th of May, 1831, he gave to the defendant, Lee, the plaintiff’s note for 530 dollars, telling him at the time that it was one of the notes for the Jersey farm, which had been paid, and that he (the witness,) gave it to him as a collateral security, for the purpose of getting him to sign the note for 275 dollars for John Conard. That he received the note' for 530 dollars from John Conard, and had no authority from Conard to deliver it to the defendant. That in February, 1832, he tendered the amount of John Conard’s note to the defendant, and demanded of him the plaintiff’s note for 530 dollars, which he refused to give up. The witness stated other circumstances in support of the allegations 'of fraudulent intent or malicious motives. Witnesses were also examined to prove the value of the land which had been sold under the executions. The plaintiff then gave in evidence the records of ‘the court of Common Pleas of Chester county, showing the entry of the two judgments in favour of William Lee against Cornelius Conard, by virtue of two several warrants of attorney. Each .judgment was ente2’ed on the 30th of July, 1831; one being foh 1090 dollars, the penalty of a bond for 545 dollars; the other being for 1060 dollars, the penalty of a bond for 530 dollars; each bond being dated the 25th of March, 1829. The proceedings on these* .judgments were as follows:
    1. On the judgment for 1090 dollars a fieri facias issued on the 30th July, 1821, to August Term, 1831, "No. 37, endorsed to levy, $ 619 02, with interest from the 30th July, 1831, and costs. CJpon this fi. fa. an inquisition was held, and the land condemned. A venditioni exponas issued to October Term, 1831, No. 32, endorsed in like manner. On the 8th of November, 1831, on motion of .Mrs Bell, the court granted a rule to show cause why the judgment in this case should not be opened and the defendant permitted to take defence; proceedings upon the execution to stay in the mean time. On the 13th of December, 1831, the rule was by consent made absolute. A declaration was then filed to which the defendant on the same day pleaded payment with leave, &c.: and on the 9th of May, 1833, on motion of the defendant’s counsel, a nonsuit was ordered, according to the act of Assembly.
    2. On the judgment for 1060 dollars, a fieri facias issued on the 30th of July, 1821, to August Term, 1831, No. 38, endorsed to levy $ 601 99, with interest from the 30th of July, 1831, and costs. To this writ the sheriff returned “ lands levied on and condemned.” On the 21st of November, 1831, a venditioni exponas issued to January Term, 1832, No. 21, endorsed to levy $ 555 22, with interest and costs as before. It appeared by the docket entries, that on the 13th of December, 1831, on motion of Mr. Bell, and affidavits filed, the court granted a rule to show cause why this venditioni exponas should not be set aside; proceedings to stay in the mean time; which rule was returnable on the 16th of January following. On the 27th of December, however, the sheriff sold the land of Conard, under this writ, for the sum of 1760 dollars, (subject to a mortgage of 1317 dollars, with interest, in favour of Rebecca Williams, to be paid at the death of Mary Williams.) On the 3d of February, 1832, exceptions were made to the sheriff’s sale; and on motion of Mr. Bell, a rule was granted to show cause why the sheriffs sale should not be set aside; which rule, on the 11th of April, 1832, was discharged; and on the 15th of April, a rule was granted upon the sheriff to bring into court the balance remaining in his hands, after discharging the execution, No. 39, to August Term, 1831. Various proceedings then took place respecting the distribution of the proceeds of sale, which it is not material here to state. It appeared, also, by the record, that on the 18th of January, 1832, on motion of Mr. Bell, and affidavit filed, the court granted a rule to show cause why the judgment should not be opened, and the defendant let into a defence; upon this rule proceedings similar to those in the first mentioned judgment, took place; which ended in a nonsuit on the 9th of May, 1833.
    The plaintiff having gone through this evidence; the defendant’s counsel asked the court for a nonsuit, upon the ground that the case contained and set out in the declaration, had not been proved; which the court declined to grant. The defendant then went into evidence of the value of the property, and produced the bonds and mortgage, and also the record of another judgment by William Lee against Cornelius Conard, to the same term, for the sum of 1030 dollars, upon which a fieri facias issued on the 30th of July, 1821, to August Term, No. 39, endorsed to levy $ 583 59, with costs and interest as in the other cases, and which was in the hands .of the sheriff at the same time with the writs Nos. 37 and 38, and used for the condemnation of the property. The record also showed, that satisfaction was acknowledged of this judgment on the 8th pfMay, 1833.
    The evidence having been closed on both sides, the defendant’s counsel requested the court to charge the jury;
    
      “ 1. That the case as set out in the declaration, is not supported by the proof adduced.
    2. That to maintain the action, it is necessary to prove both malice and want of probable cause, as w’ell as particular special damage.
    3. That malice is not necessary to be inferred from the want of probable cause, and whenever opportunity is given to apply to the court from which the process issues, malice is never to be inferred.
    4. That it was in the power of Cornelius Conard, and it was his duty to have applied to the court in this case, at the November Term, 1831, to open both judgments and set aside both executions; and it was still more his duty to have given notice to the sheriff of the order of court to stay proceedings, of the 13th December, 1831; and having failed to do so', the damage of which he complains, was the result of his own negligence; and he cannot maintain this action.
    5. That probable cause upon facts admitted or proved, is a question of law for the court; and the testimony of Richard Pryor, Jr., does not preclude the probability that Mr. Lee supposed he had the right to hold the $ 530 note, as he originally held it, with the collateral security of the bond then in his hands; and while there is room for such a probability left by the evidence, this action does not lie.
    6. That the suffering a nonsuit is no evidence of malice or want of probable cause.
    7. That the condemnation under the first and second judgments, shows 'no special damage; because there' was at the same moment, a condemnation under a valid and admitted judgment, and according to all the proofs in the case, adequate ground for condemnation, independently of the first judgment.
    8. That it was essential that the plaintiff should have proved that the lands and tenements mentioned in the declaration, were, at the time of the sale, the lands and tenements of him, the said Cornelius Conard; that before the jury find for the plaintiff, they must be satisfied that the said lands and tenements were the lands and tenements of the plaintiff, and that there has been no evidence of that fact.” i
    
    The presiding judge, after stating the action and pleadings, proceeded to charge the jury as follows:
    
      “ The defendant’s counsel contend that this action in its character is highly penal, imputing to the defendant great impropriety of conduct; and that as is the law in criminal cases, all presumptions, are in favour of his innocence, to be rebutted, only, by direct and positive evidence. The plaintiff must make out his case by clear and undoubted evidence. If he shall have failed to establish to your entire satisfaction, any one essential fact in the cause, he is not entitled to youi* verdict.
    I shall notice in the course of my observations to you, the several points of law made by the defendant’s counsel;, but it will aid your inquiries to have the law applicable to the evidence in this case staled in a single proposition, and it is this: — If the defendant, William Lee, knowing that the judgment bonds in question had been paid to him, afterwards proceeded, by means of legal process founded upon them, to injure the plaintiff, to sell his land, with the fraudulent intent of obtaining an unjust advantage to himself, by compelling a second payment; or with the malicious intent of injuring the plaintiff this action lies; and there is no matter of law objected in the case, that will prevent your giving a verdict for the plaintiff. You will observe that it is essential to the plaintiff’s cause, that he should prove to your entire satisfaction, not only, that the judgments, the bonds in question, were fully paid, and that the defendant knew of their payment before taking out execution, but also, that the defendant sold the plaintiff’s property with the fraudulent intent of obtaining a second payment of the debt, or with the malicious motive of injuring the plaintiff.
    Before entering upon an examination of the evidence, I will dispose of some points of law, made by the counsel. The plaintiff’s, evidence goes to prove that the bonds in question, if paid at all, were paid before judgments were entered. The declaration states that the judgments were paid. The defendant’s counsel took the' earliest opportunity of objecting to any evidence of payment of the bonds, before the judgments were entered, and have repeated these objections. These judgments were entered under warrants of attorney accompanying the bonds. If the bonds were paid, the rightful authority to enter judgments upon them ceased, and the judgments thus improperly entered, it is said, were paid judgments. This, however, is matter of law, and I need not observe upon it. It is enough for me to say, in my directions to you on this point, that tire declaration is sustained by proof that the bonds were paid, before the judgments were entered upon them. So, also, as to the time of the inquisition and sale. The declaration states the condemnation under the fieri facias to have been the 30th July, 1831. It was 15th September, 1831. The sale under the venditioni ex-ponas, to have been 21st November, 1831. It was December 27th, 1831. These variances between the evidence and the declaration, are not material.
    
      The declaration is supported by the proofs adduced. — (Answer to the first point.)
    
    The defendant’s counsel are right in saying in their eighth point ‘it was essential that the plaintiff should have proved that the lands and tenements mentioned in the declaration were at the time of the sale the lands and tenements of him the said Cornelius Conard — that before the jury find for the plaintiff, they must be satisfied that the said lands and tenements were the lands and tenements of the plaintiff’ But they are wrong in saying ‘ that there has been no evidence of that fact.’ There is, -in point of law, evidence in the cause which will justify you in finding that they were. — (Answer to the eighth point.)
    
    The defendant’s second point is law, ‘ To maintain this action it is necessary to prove 'both malice and want of probable cause, as well as particular special damage.’ And now as to the facts: were the bonds, the judgments in question fully paid, and did the defendant know that they were, before executions were issued by him upon them ? This is the first matter of inquiry.”
    After stating the agreement between the parties, the mortgage,, bonds, and notes — the judgments entered by warrant of attorney on the bonds, the fieri facias and condemnation on each, the judge said,
    “ Perhaps you will think there is satisfactory evidence that the-bond on which the first judgment was entered, was paid, before judgment entered.”
    After stating the venditioni on the second' judgment No. 38 and the proceedings under it, the orders of court, declaration, plea of payment and nonsuit, the judge said,
    “ The defendant’s sixth point, is, ‘ the suffering a nonsuit is no evidence of malice or want of probable cause.’ I do not think, independent of Richard PryorVevidence, that this bond, the second judgment, under which the plaintiff’s property was sold, was paid-. The defendant has in his possession, not only the mortgage and bond, but also the accompanying note for $ 530. This part of the plaintiff’s case, therefore, must depend upon Richard Pryor’s testimony. The nonsuit might, perhaps, be considered a circumstance in the cause, but without Pryor’s evidence, the plaintiff must fail. I will, therefore, under the circumstances, instruct you, as I am desired to do by the defendant’s counsel-, that ‘ the suffering a nonsuit is no evidence of malice or want of probable cause.’ The fact of payment, in this view of the law, is made to rest exclusively, upon the testimony of Richard Pryor. If you doubt his credibility, if his testimony, standing by itself, does not establish to your entire and perfect satisfaction, that the bond in question, the second judgment, was paid to the defendant before he issued the executions in question, you will find for the defendant.”
    After stating Richard Pryor’s evidence relating to this matter of inquiry, the judge said to the jury,
    
      “ If you are satisfied from Pryor’s evidence, that the bond, the second judgment under which the plaintiff’s property was sold, was paid to the defendant before the execution issued, the next inquiry will be, what was the object, the motive, the intent of the defendant in selling the plaintiff’s property under the execution V ■
    
    
      “ Pryor says, that the note for f 530 accompanying the bond in Question, was on the 17th of May, 1831, delivered by him to the defendant, to be held as collateral security for the payment of any note or notes which he, the defendant, might endorse for John Conard’s accommodation. Taking the fact to be so, the defendant’s counsel contend, that in fairness and common honesty, you are to presume that the defendant entered up the judgment on this bond, took out 'execution and proceeded to sell the plaintiff’s land to indemnify himself against loss from his endorsements for John Conard, for which purpose the accompanying note was placed in his hands by Richard Pryor, as collateral security, in connexion with the bond. Now, however much the defendant may have mistaken the law in' the matter, if he, from honest motives and with a fair intent, took 'out execution, and sold the plaintiff’s property for the purpose of indemnifying himself against his endorsements for John Conard; believing or supposing that the deposit of the note in his hands by Pryor gave him the right to do so, the plaintiff cannot recover by reason of any damage he may have sustained. Or, in other words; and perhaps, as the circumstances are, in plainer language, you must find (if you give a verdict for the plaintiff) that the intent of the defendant was, unjust gain to himself, by denying the payment; and áttempting to compel by means of the execution a second payment of the debt; or that he was influenced by sheer malice against the plaintiff. These observations apply to defendant’s fifth point.”
    Aftér stating the evidence relating to this matter of inquiry, the , .judge said,
    “ If you find the intent of the defendant in taking out the execution and selling the plaintiff’s property under it, to have been unfair and dishonest, that his object was fraudulently to compel á second payment of the debt by means of the execution, and not to indemnify himself against his endorsements tor John Conard, then .your next inquiry will be as to damages. I intend to say a few words to you on this subject, but before doing so, I will dispose of the defendant’s points.
    
      The first and second points I have already answered.
    As to the third point, ‘ malice is not necessarily to be inferred from the want of proba,ble cause;’ but it may be inferred, although ‘ opportunity is given to apply to the court, from which the process issued.’
    The direct answer to the defendant’s fourth point, is that the plaintiff can maintain this action. I have already observed upon thesé allegations; They are circumstances in the cause, and if the plaintiff purposely lay by, and omitted to apply to the court for protection, or to avail himself of that protection when granted, with a view to this action, or from any sinister motive, we would disappoint his expectations of damages. There is, from the evidence, no sufficient ground to say that he did.
    (Fifth point.) — I have, I believe, substantially answered the defendant’s fifth point. Probable cause, upon facts admitted or proved is a question of law for the court; but questions of law rest upon facts and not upon probabilities. It is a question of fact, what right William Lee supposed he had to the note.
    The sixth point I have noticed. • The seventh point is right. The eighth point I have answered.”
    He then stated to the jury the questions of fact; confined their inquiries to the second count in the declaration; and said:
    “It appears to me, that under the circumstances, it would be fair that you should fix the value of plaintiff’s property at the highest price ‘he could have obtained for it, at private sale; deduct from that sum the price which it brought at the sale in question; add interest upon the balance, together with the plaintiff’s actual personal expenses, the costs and charges which he incurred for his witnesses in attending upon the court on the several hearings of the rules, and reasonable compensation for fees to his attorneys. All beyond full compensation for the injuries actually sustained, has been called in the argument, vindictive damages. To such damages I have always been opposed, and shall look upon a verdict for vindictive damages with disfavour. You have the power to give exemplary damages; but you are to consider and say if you will do it.”
    The jury having found a verdict for the plaintiff, with $ 2,850 damages, the defendant removed the record to this court, and assigned the following errors: ,
    
    “ I. The case, as set out in the declaration, was not sustained by the evidence; because there was no evidence of malice or want of probable cause, nor the best evidence within the plaintiff’s power, nor sufficient evidence of the payment of the note accompanying the bond upon which the judgment named in the second count of the narr. was entered; nor any evidence of the payments as averred in the narr.; nor any evidence of the issuing of execution, levy, condemnation and sale as averred; nor was there any evidence that the plaintiff had any title to the lands and tenements mentioned in his narr.
    II. If the defendant had not sufficient cause to proceed as com-» plained of in the narr., yet the plaintiff having neglected to avail himself of the interposition of the court, the defendant is relieved 'from the imputation of malice, and not liable in damages by reason ■of any thing alleged or proved.
    
      III. The defendant was not liable to any damages, because there were no damages proved to have been sustained in the condemnation or by the sale; nor could there have been any damage done to the plaintiff by reason of the proceedings complained of in the narr. because the other and undisputed incumbrances must have worked a condemnation, and procured a sale of the land; moreover, the plaintiff wholly failed to prove he had any title to the land sold, and omitted to exert a rule which he obtained, in time to set aside the writ under which the sale was made, with a special order for proceedings to be staid thereon, by neglecting to give the defendant or the sheriff notice thereof; and also because said judgments were known to, and it was in the power of the plaintiff to have prevented any measures thereon before the sale, by an application to the court to open said judgments.
    IY. There was not the best evidence of which the case was susceptible, nor was there sufficient evidence of the payment of the note accompanying the bond upon which the judgment named and ■complained of in the second Count of the narr. was entered; and without sufficient and full proof of this.fact, the defendant had such a pi'obable cause of action as will relieve him from the charge of a want thereof, and also of malice.
    Y. The judge erred in permitting the plaintiff to prove the matters stated in his opening, because they were wholly different from •those complained of by the narr.; and also in permitting the plaintiff to give in evidence the written agreement under date of March 25, 1829; and also in permitting plaintiff to give in evidence the notes; and also iri permitting R. Pryor, Jr., to give evidence of the matters he affirmed to; and also in permitting the plaintiff to put in evi-' dence the copies of the records of the court of Common Pleas of Chester county; and also in charging the jury that if it appeared to their satisfaction, that the notes connected with the bonds upon which the judgments named in the narr. were entered, had been paid, there was no point made by the defendant, that would prevent them from giving damages against the defendant; and also in charging the jury that if the notes were paid as alleged, it was sufficient evidence of the payment of the bonds as declared, and that the variance between the evidence of the time of issuing, executions, condemnation and sale, and the time laid in the narr., was immaterial; and that the plaintiff did own the land at the time of the sale; and that the plaintiff had paid the defendant $ 500 in cash when he bought the Jersey farm of the defendant; and in not charging the jury upon the fifth point submitted by the defendant for a charge ; and in charging the jury that the fourth point did not bar ' this action: and that it did not appear that the plaintiff knew of the second venditioni exponas before the sale; and that they might, in measuring the damages, allow the plaintiff full price for the land, actual expenditures, and all the incidental expenses of his witnesses, and full and reasonable 'compensation for his attorneys, and interest thereon.”
    Mr. Brewster, for the plaintiff in error,
    argued, 1. That the evidence ought not to have been admitted by the judge below, because it was not in conformity with the declaration. 2. That the charge of the judge was erroneous.
    He cited v. Thompson, (2 Shower, 246.) Pur cel v. M’ Ñamara, (9 East, 361.) Anon. (6 Mod. 73.) Hutchinson v. Brodie, {Cro. Jctc. 133.) Cro. Eliz. 836. 1 Bos. ¿y Pull. 205; 12 Petersdarff, 419; Johnson v. Sutton, (1 Term Rep. 545.) Davis v. Hardy, (13 Eng. Cam. Law Rep. 152. 6 Barn. Sy Cress. 225.) Munro v. Dupont, (3 Wash. C. C. Rep. 31.) Ray v. Low, (1 Peters’ C. C. Rep. 207.) 2 Dane’s Abridgment, 723 § 12, 724 § 8, 726 § 6; 4 Mass. Rep. 433; 3 Hen. Sy Munf. 260; 11 Mass. Rep. 50; Douglas’ Rep. 215; 2 Term Rep. 225; 2 Wilson, 210; Oliver’s Precedents, 126, 369 (n), 372 (n).
    Mr. Conard and Mr. Tilghman contra,
   The opinion of the court was delivered by

Kennedy J.

Several errors have been assigned, one of which, only, appears to be sustainable. The others are so totally destitute of even plausibility, that it is unnecessary to notice them otherwise than to pronounce their entire want of every thing that can present itself to the consideration of a court of error, as a ground for relief. The error that we are inclined to consider fatal, is founded on the exception to the opinion of the court, in admitting the testimony of Richard Pryor, to prove that the bond given to secure the payment of the debt, for which the judgment had been entered, in virtue of a warrant of attorney thereto annexed, was paid before the entry of the judgment. The question then is, did this evidence tend to support the averments contained in the plaintiff’s declaration? Because if it did, it was rightly admitted; but if it did not, then it ought to have been rejected. In regard to this point, there is no rule better established, than that the probata ought to agree with the allegata. Now, what is it that the plaintiff has alleged, as to this, in his declaration. He, in substance complains, that the defendant wrongfully and unjustly sued out an execution upon a judgment which he had against the plaintiff, after it had been actually paid ; and by virtue thereof wrongfully and unjustly caused the land of the plaintiff to be seized and sold at $ 1500 less than its real value. But the evidence offered and admitted, was not to show that the judgment had been paid, but that the debt for which the judgment had been entered, was paid, before the entry thereof. This was certainly not in accordance with the plaintiff’s allegation. For, although it might be making out a more aggravated case of injury than that set forth in his declaration, still it was -not in terms nor yet in substance the same: Because, by his declaration, he seems to admit the correctness and justness of the judgment originally, but alleges that it had been paid, and therefore • it was wrong and unjust in the defendant to sue out the execution upon it, and to cause his, the plaintiff’s land, to be sacrificed or sold for $ 1500 less than its value. The plaintiff having thus admitted that the judgment was properly entered, it is clear that the defendant had no occasion to come prepared at the trial, to maintain it to be so. It was sufficient, in order to meet the allegation of the plaintiff, that the defendant came prepared to show, that the judgment had not been paid or satisfied at any time after it was entered, and previously to suing out the execution and making sale of the land under it. But the evidence of Pryor, instead of going to support the allegation that the judgment had been paid, went to prove that the debt for which it was entered, had been paid prior to the entry thereof; and that the authority originally given for entering the judgment, had thereby been revoked, and that the judgment was therefore to be considered a nullity. To say the least of it, this was presenting the case in an aspect quite different from that given to it in the declaration. That it is materially different, too, was decided by this court at the last term at Pittsburgh, in Braddy v. Brownfield, which will be reported in 4 Watts; where, in an action founded upon our act of Assembly, against a plaintiff in a judgment entered in his favour on a judgment bond, for not entering satisfaction in the prothoftotary’s office, where the judgment existed, after being paid the amount thereof; it was ruled that evidence going to show that the debt or bond had been paid and satisfied before the entry of the judgment, was properly rejected by the court below, on the trial of the cause. It being thus settled, that the payment or satisfaction of a debt mentioned in a judgment bond, before the entry of a judgment upon it, does not mean the same thing with the payment or satisfaction of the judgment after it is entered; the defendant in the present case, had no reason to expect that such evidence as' that of Pryor’s would be offered, or if offered, that it would be received, and, therefore, was not bound to come prepare ,ed to encounter it. If the plaintiff’s case really be, that the debt was paid prior to the entry of the judgment upon, which the execur •tion was sued out and the land sold, then, instead of insisting upoq having his evidence admitted, he ought first to have had his declaration amended by leave of the court. This, I presume, the court would have permitted him to do, so as to meet the evidence; but, then, the defendant, if not prepared to answer to the declaration in its amended form, would have been entitled to'the costsof the term, and a postponement of the trial until the succeeding term. It may be also, that the declaration, is defective in not stating that the proceeding of the defendant, complained of by the plaintiff, was done maliciously, and luith an intent to injupe and oppress, &c. Goslin v. Wilcock, 2 Wils. 305, instead of stating it as it is, to have been done wrongfully and unjustly, with intent, &c. As this, however, has not been assigned for error, it is unnecessary to express an opinion upon it.

The judgment is reversed, and a venire de novo awarded.  