
    Muse Executor of Heffernan v. Vidal.
    Decided, Nov. 8, 1817.
    x. Trespass — Against Justice lor Issuing Search Warrant. — Trespass vi ét armis, and not case, is the proper action, against a Justice of the peace, for maliciously & corruptly, with intent to injure and oppress, and without probable cause, issuing a Search warrant, by virtue whereof a Constable forcibly enters the plaintiff’s close, and takes and carries away from bis possession certain slaves which he held as his property.
    2. Same — Same—Declaration.—The form of the declaration in such action.
    The declaration in this case was in the following- words :■ — Middlesex County, to wit: — “William George Vidal complains of Henry Heifernan in custody, &c. of a plea, for that the plaintiff, on the 22d day of December 1807, in the County aforesaid, was possessed of seven negro slaves, named &c., of the price or value of 7001. and claimed the said negro slaves to be his own proper slaves; and the defendant knowing that the plaintiff was possessed of the said negro slaves, and claimed the same as his own slaves, and the defendant knowing that the plaintiff did not conceal the fact of the said slaves being in his possession; yet the defendant, acting in the character or office of a Justice of the peace for the County of Middlesex aforesaid, on the 22d day of December 1807, at the County aforesaid, did, maliciously and corruptly, and with the intent to injure and oppress the plaintiff, and without probable cause, issue his certain writing directed to one Nelson Stamper, Constable, or any other Constable of the said County, whereby he stated, that an information, on oath, from John Roane adm’r of Thomas Roane deceased, that Judy a negro woman, Martha, Seana, Noah, Caty and two other children had, within ten days then last past, been felo-niously taken, stolen and carried away out of the possession of said John Roane administrator, from the plantation of George Daniel deceased, in the county aforesaid, and that the said John Roane had probable cause to suspect, and did suspect 'that the said negro slaves were concealed in the house or houses of William George Vidal of Urbanna, and of the said County, labourer, and that therefore, in the name of the Commonwealth, he authorized and required him with necessary *and proper assistance to enter, in the day time, into the house of the said William George Vidal, and there diligently to search for the said slaves, or any part thereof, and if the said slaves, or any part thereof, should be found upon such search, that he should bring the same, and also the body of the said William George Vidal before him or some other justice of the peace for the said County, to be disposed of and dealt with according to law, by virtue of which said writing the said Stamper did forcibly enter the close of the plaintiff in the County aforesaid on December 23d, 1807, and did take and carry away, out of the possession of the said Plaintiff, the said negro slaves, named &c., and delivered the same into the possession of the defendant, who, thereafter, on the same day at the County aforesaid, delivered the same into the possession of the said John Roane, to the great injury of the said plaintiff, and against the peace and dignity of the Commonwealth, whereupon the said plaintiff saith that he is injured and hath damage to the value of 10001. ; and thereof he brings suit &c.”
    A demurrer to this declaration was filed, and afterwards withdrawn. The cause was tried, in the Superior Court of law, on the plea of not guilty, and a Verdict found for the plaintiff for 361. damages; — subject to the Court’s opinion upon certain points reserved, viz. whether the plaintiff had set forth in his declaration, any cause of action against the defendant; and if so, whether he could have remedy therefor in this form of action. — The defendant died after the verdict, and, by consent, the suit was revived against Elliot Muse his administrator; after which the Court, being of opinion that the law was for the plaintiff on the points reserved, entered judgment for him, whereupon the said administrator obtained a Supersedeas, from this Court.
    In the petition for the Supersedeas, it was contended that, “if the defendant was liable to any action at all, it ought to have been Trespass, and not Case; and therefore the defendant’s demurrer ought, for that cause, to have been sustained.” 1 Chitty, 137.
    
      
       See foot-note to Jordan v. wyatt, 4 Gratt. 151.
    
   *The parties being called, and not appearing,

JUDGE ROANE

pronounced this Court’s opinion: — -

The Court considers this action as an action of trespass vi et armis; and, thus considering it, affirms the judgment.  