
    Shaver v. White and Dougherty.
    
    Decided, Feb. 9, 1818.
    1. Jurisdiction — Contracts — Personal Injuries. — Actions may be bro’t in the Courts of this State, upon contracts entered into, or personal injuries committed, any where.
    Same — Same—Same—Declaration—Rule as to Stating Where Cause of Action Arose. — In general, it is not necessary to state, in the declaration, where the contract arose, or the injury was committed:— but this is sometimes necessary; and, then, for the sake of obviating the objection of a variance, or the like, the plain till is permitted to state, by a fiction, under a videlicet, that the place is within the jurisdiction of the Court in which the suit is brought; which Action, being in lurtherance of justice, cannot be traversed.
    2. Same — Same—Same—Same—Same.—In cases, in which the plaintiff does not use this Action, the defendant is not. in general, permitted to aver that the cause of action arose in another Country, unless he vrishes to justify the act by the laws of that Country: or to shew, thereby, that he is not responsible in the particular form of action in question; in which cases, the locality of the act forms an essential part of his defence: — but such plea does not go to the jurisdiction of the Court, but only to the justification of the defendant.
    
      3. Justification —It is a principle, that, if a party be justiAed, as to a transaction, in the Country or place in which it is committed, he is justiAable every where.
    4. Wrongful Attachment — Action for.. — Case for malicious prosecution, and not trespass vi et armis, is the proper action against a person who, maliciously and without probable cause, sues out an attachment, and causes it be levied on the property of another.
    5. AttacEarasent against Partner — Levy under. — It seems, that, upon an attachment for a debt claimed as due from one co-partner, the Sheriff must seize all the partnership effects, and sell a moiety thereof undivided; in which case, the Ven-dee will be tenant in common with the other partner: — for, if he seized but a moiety, and sold that, the other partner would have a right to a moiety of such moiety.
    
      
       For monographic note on Negligence, see end of case,
    
    
      
       Jurisdiction — Contracts.—See generally, mono-graphic note on “Jurisdiction’’ appended to Phippen V. Durham, 8 Gratt. 457; monographic note on “Contracts” appended to .Binders v. Board of I Public Works. 1 Gratt. 384.
    
    
      
       Wrongful Attachments — Action for. --In Olinger v. McChesney, 7 Leigh 687. it is said: “Action on the case for suing out an attachment maliciously and without probable cause is a familiar action with ns, [Shaver ¶. White], 6 ffunf. 110; (Marshall v. Bussard), Gilm. 9; (Stuart v. Hamilton), 2 Hen. & M. 48. and I see no reason for the opinion that it will not lie for a tena.nl, although it will for any other oppressed debtor. The argumentinueed in his favor is a fortiori, when we consider that the tenant is not even permitted, in the attachment, to defend himself by pleading that his landlord has no ground to suspect his removal. (RedJord v. Winston), 3 Rand. 148.” See monographic note on “Attachments” appended to Lancaster v. Wilson, 37 Gratt. 634.
    
    
      
       Partnership — Judgment against Individual Partners — Levy of Execution. — It is a well established principle that an individual creditor of a partner, having obtained a judgment separately against him for his own separate debt, may issue his fieri facias and cause it to be levied on the social effects, and the sheriff must seize the whole of them, though he may not sell the moiety, but an undivided moiety of the whole, and a vendee of the undivided moiety becomes tenant in common with the other partner. Wayt y. Peck, 9 Leigh 440, citing principal case. See further, monographic note on ‘Partnerships” appended to Scott v. Trent, 1 Wash. 77; mono-graphic note on "Attachments” appended to Lancaster v. Wilson, 37 Gratt. 624.
    
   The circumstances of this case, and points in controversy between the parties, together with the Court’s opinion thereupon, were stated as follows, by

JUDGE ROANE.

’’This was an action of Trespass, brought by the appellees, White and Dougherty, against the appellant, in the Superior Court of law for the County of Washington. — It charges that he (the appellant) combined with ■ — —Eagan, at Sullivan, to wit at the County of Washington aforesaid, and within the jurisdiction of the Court, with force and arms, took three hundred head of cattle out of their possession, and other wrongs then and there did, against the, peace of the Commonwealth. To this Declaration four several pleas were put in, and were demurred to by the plaintiffs, which demurrer was held good by the Court; whereupon, the defendant pleaded not guilty, on which, issue was taken; and a verdict was found for the plaintiffs, subject to the opinion of the Court upon the demurrer to evidence. The Court gave judgment for the plaintiff upon the demurrer, from which the defendant appealed to this Court.

As all the objections taken in the case, equally occur upon the Demurrer to Evidence, as upon the pleas, it will not be necessary for us to go into the latter; farther, at least, than is inferrable from the opinion given upon the former. It is probable, however, that judgment should have been rendered for the appellant, at an earlier stage, upon the two last pleas ; on the ground that they set forth facts which shew, that Case, and not Trespass, was the proper action.

The Case, as briefly collected from the demurrer to evidence, is,' that the appellant had obtained an attachment, in Tennessee, for a debt claimed as due from White, and caused it to be levied upon the property of both the plaintiffs; which attachment, it is alledged, was obtained on false pretences, and was iniquitous. The Judgment rendered on the Attachment was also perpetually injoined by the Court of Errors in that State. In addition to this objection to the proceeding, it is further objected that *the action did not lie in Virginia, for an act committed in Tennessee; and that trespass was not the proper action.

We hold it to be a clear principle, that actions may be brought here upon contracts entered into, or personal injuries committed, any where. In general, it is not necessary to state in the declaration, where the contract arose, or the injury was committed. But this is sometime s necessary, and then (for the sake of obviating the objection of a variance, or the like,) the plaintiff is permitted, by a fiction, to state, under a videlicet, that the place is within the jurisdiction of the Court in which the suit is brought. It is also held that this fiction, being in furtherance of justice, can not be traversed. In cases in which the plaintiff does not use this fiction, the defendant shall not, in general, be permitted to aver that the cause af action arose in another Country ; for that averment is in conflict with the principle before stated, that contracts and personal injuries are not in their nature local. A defendant shall not be permitted to aver this fact, unless he'finds it necessary to aver, also, that, by the laws of the Country in which the act was committed, it was justifiable. In that case the locality of the act forms an essential part of his defence; it cuts up the right of action of the plaintiff; and’the pleading it is even beneficial to the plaintiff, as it affords him an opportunity, before the trial, of ascertaining whether the laws of the Country in question are such as are averred by the plea.

In the case before us, it was not improper for the defendant to plead that the trespass was committed in the State of Tennessee, as he also pleaded that he was acting under the authority of the laws of that State, in the instance in question. These facts, however, do not go to the jurisdiction of the Court; but only to the justification of the defendant; the principle being, as aforesaid, that if a party is justified, as to a transaction, in the Country or place in which it was committed, he is justifiable every where.

So, these facts may not only amount to a complete justification of the defendant; but, if they do not, they may *shew he is not responsible in the particular form of action in question. They shew, in the case before us, that the action of trespass vi et armis does not lie. The act in question was unaccompanied with force, and the defendant was only seeking redress of an injury by the regular forms of law. If, indeed, he has gone out of his proper province, and has endeavoured to make those forms subservient to the malignity of his views; if he has instituted the action or proceeding with malice and without probable cause; then, indeed, he is responsible for his conduct: but not in this form of action. The action adapted to such a state of things, is a special action on the case, for a malicious prosecution. The case of Young v. Gregory, in this Court, is conclusive to shew both that that is the proper kind of action, and that the declaration should aver the existence of malice, and the want of a probable cause of action.

The Evidence disclosed in the Demurrer, therefore, does not authorize the appel-lees to recover in this action, which is an action of Trespass. Whether it would justify a judgment in an action for a malicious prosecution, we need not determine.

This view of the case in conclusive as to the appellee White. It is also conclusive as to Dougherty. By connecting himself with White in this action, and suing the appellant instead of the Sheriff, he must submit to the decision in it. He can not bring an action of trespass against the appellant, who has only pursued a legal remedy; and it is not necessary for us to say whether he could bring- that action against the Sheriff, who is no party to this action. As at present advised, however, we think the officer was justified in seizing all the partnership effects. It is laid down in the case of Heydon v. Heydon, 1 Salk. 392, that, on a judgment against one co-partner, the Sheriff must seize all the partnership effects; because the moieties are undivided; for if he seize but a moiety, and sell that, the other partner will have a right to a moiety of that moiety ; but he must seize the whole, and sell a moiety thereof undivided, and the Vendee will be tenant in common with the other partner.

*On these grounds, we are of opinion, that the judgment should be reversed, and entered for the appellant.  