
    
      Parsons v. Harper.
    July Term, 1860,
    Lewisburg.
    1. Pleading—Statute—Joinder of Counts—Trespass— Case.—Since the act, Code, oil. 148, § 7, p. 589, counts in trespass may be joined to counts in case in an action on the case.
    
    2. False Imprisonment—Motive-immaterial to Maintenance of Action.—In an action on the case for suing out a capias and imprisoning the plaintiff, in an action of slander in which he was defendant, it Is not necessary to aver malice or want of probable cause in suing out the capias.
    
    
      3. Same—Damages—Fees of Counsel. —man action on the case for suing out a capias and imprisoning the plaintiff, in an action of slander in which he was the defendant, he may prove as damage sustained by him, the amount of the fee paid by him to counsel for a motion to quash, the capias.
    
    
      4. Evidence—Motives of a Party.—Where the motives of a party are a material enquiry in a cause, any evidence which tends in any degree to throw light upon them, is not to be rejected, though the court may think it not entitled to much weight with the jury.
    5. Same—Record—Exception Must Be Specific.—If a record is offered in evidence, a part of which is objected to by the other party, he must specify the part objected to, or the objection may be properly overruled,
    
      6. Action on the Case—False Imprisonment—Evidence. —In an action on the case for false imprisonment, the whole record of the case in which the imprisonment occurred is competent evidence for the plaintiff.
    7. Same—Same—Defence—Motives.—In an action on the case for false imprisonment, if the defendant has unlawfully sued out process of arrest against the plaintiff, and has caused him to be imprisoned upon it, and the process has been afterwards set aside because illegally issued, it constitutes no defence to the party: but the plaintiff is entitled to recover damages for the wrong done him, without regard to the motives of the defendant, or the circumstances attending the doing of the wrongful and unlawful act.
    *8- Same—Same—Elements of Recovery.—In such a case, though the act complained of was done without malice, yet, being unlawful and In violation of the plaintiif’s right, he is entitled to recover not only for the costs he has incurred, but for the loss of time, interruption to his business, and the suffering, bodily and mental, which the act may have occasioned.
    9. Formation of Juries—Irregularities—When Objection Should Be Made.—An irregularity in forming a jury must be objected to before the jury is sworn, unless the party is shown to have been injured by it.
    This was an action for trespass on the case in the Circuit court of Randolph county, brought in August, 1856, by William J, Harper against Solomon Parsons. The declaration contains eleven counts, the first of which is as follows:
    Virginia, Randolph county to wit: William J. Harper complains of Solomon Parsons,'who hath been summoned in a plea of trespass on the case.
    First-count.—For that the said Solomon Parsons, on the 29th day of October, 1855, at the county ' aforesaid, had pending in the Circuit court of Randolph county, an action of trespass on the case in his favor against the said William J. Harper, for words alleged to have been spoken of and concerning the said Solomon Parsons by the said Wm. - J. Harper. That the said Solomon Parsons, on the day and year aforesaid, at the count aforesaid, maliciously, falsely, and without probable cause, made complaint before Wm. C. Chenoweth, a justice of the peace for the county of Randolph aforesaid, under oath, that he, the said Solomon Parsons, believed that the said Wm. J. Harper was about to quit this State unless he, the said Wm. J. Harper, be forthwith apprehended. That the said Solomon Parsons, on the day and 3'ear aforesaid, maliciously and without probable cause, procured the said justice to, and the said justice then and there, by reason of the procurement by the said Solomon Parsons aforesaid, did then and there direct *that the said Wm. J. Harper should give bail in said action in the sum of two thousand dollars; and that the said'Solomon Parsons thereupon, on the day and year aforesaid, maliciously and without probable cause, sued out of the clerk’s office of the said court in which the said action was pending, a writ of capias ad respondendum against the said' William J. Harper, reciting the orders of the justice aforesaid, directed to the sheriff of said county of Randolph, whereby the said sheriff was commanded to take the said William J. Harper and him safely keep until he gave bond and security in the sum aforesaid, or until he be otherwise discharged by law. That the said Solomon Parsons, on the day and year aforesaid, placed the said capias ad respondendum in the hands of George McLean, sheriff of the said county of Randolph, and procured him by virtue thereof, and he, the said George McLean, sheriff as aforesaid, on the 30th day of October, 1855, by reason of the said procurement by the said Solomon Parsons, and under color of the said capias ad respondendum, did assault and arrest the said William J". Harper, and commit him to the jail of the sáid county of Randolph, and kept him, the said William J. Harper, in the said jail and close confinement for a long space of time, to wit, two days. That the said capias ad respondendum was, by the said court, on the 28th day of May, 1856, quashed; and the plaintiff, in fact, says, that by means of the premises he is greatly injured and damaged, and has been put to great charges in freeing himself from said imprisonment, and forced to undergo grievous pains of body and mind; and during his imprisonment was hindered from exercising his lawful emplo3rment, trade and business, and whereby the plaintiff’s reputation was thereby greatly impaired in his business.
    The fourth, fifth, and eighth counts were in the form of counts for trespass vi et "armis. The others varied *from the first, some of them in omitting the charge that the capias was sued out maliciously and without probable cause; others alleged that the bond which the plaintiff was required by law to file in suing out the capias, had not been filed; and others averred special damage.
    The defendant appeared and demurred to the whole declaration and each count thereof; and the plaintiff joined in the demurrer. The defendant also filed the general plea of “not guilty;” and also three special pleas, upon which issues were joined. But, as no questions arose on the special pleas, they need not be further noticed. Subsequently the demurrer to the first and ninth counts were withdrawn, that to the third count was sustained, and the demurrers to the whole declaration, and to the other counts were overruled.
    The action came on to be tried at the October term of the court for 1858, when the plaintiff, having introduced in evidence to the jury the judgment of the court quashing the capias and bond taken in pursuance thereof, issued in the case of the defendant against the plaintiff, and referred to in the plaintiff’s declaration, offered to prove by his counsel in that case, that the plaintiff had paid him at least ten dollars for his services in making the motion to quash said capias. To the introduction of this evidence the defendant, by his counsel, objected ; but the court overruled the objection; and the defendant excepted.
    In the progress of the trial, the plaintiff introduced a witness named Phillips, who, after stating that in October, 1855, he lived seven miles from the defendant and eight from the plaintiff; and that the plaintiff was making improvements on his farm, and his credit was considered good, said: “That he was at the defendant’s about the 1st of October, 1855; said defendant then said that Harper, the plaintiff, penned up some of his, defendant’s, cattle in a pen, where they had nothing to *eat or drink, and had kept them there for some time. That his, defendant’s, religion would not bar him from going to work ‘on said Harper, and that he would make use of it at the next Circuit court. That defendant seemed to be somewhat in a passion. ’ ’ To the introduction of this evidence, except the last sentence, the defendant objected as irrelevant and improper; but the court overruled the objection; and the defendant excepted.
    In the further progress of the cause, the plaintiff introduced in evidence the deposition of David Gibson, who, after stating, in answer to interrogatories, that he was slightly acquainted with the plaintiff and defendant, living eighty miles from them; that he was president of the Bank of the Valley, at Romney, and had been connected with it as president or director for thirty-five years ; that the plaintiff had some years previous, but not for years past, frequently borrowed money at said bank; and that he knew of no communication from the defendant or anybody else, as to the credit of the plaintiff, being received by the bank or any of its officers in the fall of 1855 or 1856, but that he understood from common rumor, about that period, that the plaintiff was in jail in Randolph county, and that it grew out of a suit between the plaintiff and defendant; the plaintiff put to him the following: ‘ ‘State whether or not the rumor of the imprisonment of complainant affected his credit at said office; and if so, to what extent?” To which he answered, that he could not say. He did not remember that he ever asked for a loan that was refused, if the bank was in a condition to make it; or that he had asked for a loan since the rumor had been heard. And then the witness stated : “In the fall of the year 1854 or 1855, I think it was in 1855, I came down Clover run and crossed Cheat river, and as I passed the house of Dr. Parsons, he came out and ^walked some distance
    with me, and I was enquiring as to the ownership of property as we passed; and when I enquired as to the ownership of a tract on the opposite side of the river, he said it belonged to the complainant; and I then said that the father of the complainant owned a long string of lands on Clover run. He replied yes, the Harpers hold a good deal of property, but they are very much involved.” The witness stated, that when he returned home, he shortly afterwards told James Parsons what Dr. Parsons had told him of the embarrassment of the Harpers, he having been an endorser on their paper; but it did not seem to have had any effect upon him, for he endorsed for them afterwards. That plaintiff did not have a note In bank at that time or since, but his father or brother had.
    The defendant, by his counsel, moved the court to exclude so much of said deposition as is above given in plaintiff’s own words; but the court overruled the motion, and admitted the evidence; and the defendant again excepted.
    In the further progress of the trial, the plaintiff offered in evidence the whole of the record in the case of the defendant against the plaintiff, in which the capias referred to in the declaration was sued out. In this case a trial had been had, and there was a verdict and judgment for the defendant; and it does not appear that Parsons had executed the bond required by law upon obtaining the order of the justice to hold Harper to bail. To the introduction of this record, (except so much as related to the issuing of the capias and the disposition thereof by the court,) and particularly to the reading of the declaration and the finding of the jury, the defendant objected as Irrelevant, there being no charge in the declaration that the suit for slander was improperly, or maliciously, or without probable cause, prosecuted. But the court overruled the objection, and ^allowed the whole record to go in evidence; and the defendant again excepted.
    After the evidence hereinbefore referred to had been introduced, and the plaintiff had introduced evidence tending to prove that no bond had been given by Parsons before suing out said capias as required by law, and also evidence that the capias had-been quashed; and had also introduced evidence tending to show want of probable cause, and malice on the part of the defendant in suing out said capias; after the case had been argued by counsel and before the jury had retired to consider of their verdict, the plaintiff moved the court to instruct the jury,—That if they believed that the case of Parsons against Harper was pending on the 29th of October, 1855, in the Circuit court of Randolph county; that Parsons by himself or his counsel sued out the capias which had been read in evidence ; that on the 30th of October Parsons caused said capias to be placed in the hands of George McDean, Sheriff of Randolph county, and procured him and he did, under color of said capias, take and imprison the said Harper; and that on the 28th of May, 1856, the court ordered the said capias to be quashed, “no matter whether there was probable cause to believe that the plaintiff was about to quit this State or not; no matter whether the conduct of Parsons was malicious or not; no matter whether a justice directed the plaintiff to be held to bail or not; no matter whether the said capias was issued under the advice of counsel or not; no matter whether the failure to file a bond was the result of mistake or not; no matter whether the plaintiff might have obtained his release from the said imprisonment sooner than he did or not; no matter whether there is other proof of damage or not; if neither the said Parsons nor any other persons for him filed in the clerk’s office a bond, the plaintiff, Harper has a right to recover damages, and the jury must find for the *said plaintiff.” Which instructions the court gave to the jury: And the defendant again excepted.
    In the progress of the trial the defendant introduced the evidence of Jacob Bush which tended to prove that the plaintiff during the summer and fall of 1855 contemplated going to California; but there being no evidence tending to prove that the defendant had any information of this supposed contemplated going to California, except that the said Bush had told the same to the bank officers at Weston, in Dewis county; and the plaintiff having offered other evidence part of which tended to prove that the defendant sued but the said capias maliciously, the court refused to instruct the jury on the motion of the defendant—“That if from the evidence they believed the defendant had probable cause to believe and did believe at the time he sued out the capias, and had the plaintiff arrested, as set forth in the declaration, that the plaintiff was about to depart from Virginia, that then the jury should find only nominal damages for the plaintiff, including his reasonable expenses in quashing said capias. And the defendant again excepted.
    There was a verdict and judgment for the plaintiff for one thousand dollars, with interest from the day of trial; and thereupon Parsons applied to this court for a supersedeas ; which was awarded.
    Price, for the appellant.
    Sheffey and Hoffman, for the appellee.
    
      
      Pleading—Statute—Joinder of Counts—Case—Trespass.—At common law, the joinder of a count In trespass with a count in case Is a misjoinder of causes of action and fatal on general demurrer. But, In Virginia, by statute, it is provided, that, “in any case in which an act of trespass will lie, there may be maintained an action of trespass on the case.” Code 1849, ch. 148, sec. 7; Code 1873, ch. 145. sec. 6; Code 1887, sec. 2901. This section of the statute has been construed as intended to remove the difficulties at common law growing out of the nice distinctions between the cases in which trespass was the proper action and those in which the remedy was case, and as abolishing, in effect, the distinction between these different causes of action in a declaration in case. The joinder, therefore, of a count in trespass with a count in case is admissible under the statute.
      The principal case Is cited as authority for one or more of the above laid down propositions in Ferrill v. Brewis, 25 Gratt. 767; Womack v. Circle, 29 Gratt.195; N. Y., P. & N. R. Co. v. Kellam, 83 Va. 854, 3 S. E. Rep. 703; Grubb v. Burford, 98 Va. 555, 37 S. E. Rep. 4; Beckwith v. Mollohan, 2 W. Va. 481; Lirely v. Ballard, 2 W. Va. 499. See also, as to this statute, Fechheimer v. Bank. 31 Gratt. 656; Daingerfield v. Thompson. 33 Gratt. 141; 4 Min. Inst. (3rd Ed.) 446, 447.
    
    
      
      The act says: “In any case in which an action of trespass will lie, there may be maintained an action of trespass on the case.”
    
    
      
      FaIse Imprisonment—Motive —Immaterial to Maintenance of Action.—See principal case cited in Davis v. Johnson, 101 Fed. Rep. 955.
    
    
      
       Same—Damages—Fees of Counsel.—In Burruss v. Hines, 94 Va. 420, 26 S. E. Rep. 875, the court said: “The general rule is that counsel fees are not recoverable as damages; but on the trial of an action for malicious prosecution or false imprisonment, where exemplary damages are recoverable, the fees paid or incurred to counsel Cor defending the original suit or proceeding may be proved, and, if reasonable and necessarily incurred, may be taken into consideration by the jury in the assessment of damages. 2 Greenleaf on Ev. 456; Parsons v. Harper, 16 Gratt. 64; Marshall v. Betner, 17 Ala. 832; Lawrence v. Hagerman, 56 Ill. 68; Zeigler v. Powell,54 Ind. 173; Closson v. Staples, 42 Vt. 209; Eastin v. Bank of Stockton. 66 Cal. 123; Magmer v. Renk, 65 Wis. 364; Gregory y. Chambers. 78 Mo. 294.” See the principal case cited, as to this point, in Ogg v. Murdock, 25 W. Va. 147. See also, Bolton v. Vellines, 94 Va. 393, 26 S. E. Rep. 847; monographic note on “Damages” appended to N. & P. R. R. Co. v. Ormsby, 27 Gratt. 455; 12 Am. & Eng. Enc. Law (2nd Ed.) 785.
    
    
      
       Evidence—Exception Must Be Specific.—See footnote to Trogdon v. Com. 31 Gratt. 862, for a collection of cases in point.
    
    
      
       Formation of Juries—Irregularities—When Objection-Should Be Made.—See monographic note on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.
    
   BEE, J.

The first point made for the plaintiff in error is upon the demurrer to the whole declaration for alleged misjoinder of counts'. Some of the counts are upon causes of action for which trespass could certainly be maintained, and these, it is said, could not be united in the same declaration with the others which are strictly appropriate to the action of trespass on the case.

*That this would be so at common law, there is no doubt, and such misjoinder would be fatal on general demurrer. Our statute however in relation to the action of trespass on the case, has, I think, materially modified the rule -as to misjoinders. By ch. 148 of the Code of Virginia, section 7, (at p. 589) it is provided that in any case in which an action of trespass will lie, there may be maintained an action of trespass on the case.—Thus, then, upon the several causes of action in this declaration for which trespass would lie, case may be maintained; and as the action is case, and the declaration purports in its introduction, to be wholly in case, those counts for the matters of which it is said trespass would lie, may be considered counts in case with as much propriety, as counts in trespass. And being for matters which are made the subjects of counts in case by the statute, there can be no reason why they may not be properly united with others which are appropriate at common law to. the same action. That the object of the legislature was to remove the difficulties at common law growing out of the nice distinctions between the cases in which trespass was the proper action and those in which the remedy was case, may be true, but in carrying out this object, they have abolished in effect the distinction between these different causes of action in a declaration in case; for that they may be united in such a declaration, is, as it seems to me, a necessary corollary froth, the provision which authorities case to be maintained where the action of trespass would lie also.

I think there is nothing in the objection, and that the demurrer was properly overruled.

Upon the separate demurrers to the several counts in the declaration, the counsel for the plaintiff in error has forborne to insist except as to those in which there is no averment of malice or want of probable cause; and very properly, as all those counts are clearly good. And as *to those in which neither malice nor want of probable cause is averred, I think no serious doubt can be entertained. If the party had given the bond required by law upon suing out the capias, in a suit upon it for the damages sustained by the defendant in the action by reason of his arrest and imprisonment through the act of the plaintiff or otherwise, no averment of malice or want of probable cause would be necessary; and the plaintiff cannot, be less liable nor can more be required to be averred where the capias is unlawfully sued out without giving the bond. For if one be arrested and imprisoned upon a capias sued out by another unlawfully, or without complying with the condition upon which it might lawfully be issued, and which is afterwards set aside, he is clearly entitled to recover damages for the injury he has sustained without reference to the particular motive by which the party suing out the capias may have been prompted, though where the suing out the process was through malice and without any reasonable cause, the damages would doubtless be aggravated because of the motives by which the party was actuated. 2 Stark. Ev. 261; 3 Rob. P. 619; Parsons v. Lloyd, 3 Wils. R. 341; S. C. 2 Wm. Bl. R. 845; Turner v. Felgate, 1 Lev. R. 95; 1 Sid. R. 272; T. Ray. R. 73; Barker v. Braham, 3 Wils. R. 368; Codrington v. Lloyd, 8 Ad. & El. 449 (35 Eng. C. L. R. 433); Curry v. Pringle, 11 John. R. 444; Bissell v. Gold, 1 Wend. R. 210. And even in case of a misnomer in the capias though the right party be arrested, yet he can maintain trespass against the plaintiff, and the process will be no justification. Shadgett v. Clipson, 8 East’s R. 328; Mead v. Hawes, 7 Cow. R. 332; Griswold v. Sedgwick, 6 Cow. R. 456; Same v. Same, 1 Wend. R. 126.

I think there was no just objection to the proof of the fee paid by the plaintiff in the action to counsel to set aside the process under which he had been arrested, and *procure his discharge from imprisonment. Several of the counts in the declaration allege that the plaintiff was put to great charges and costs in obtaining his release from imprisonment, and the fee paid for that purpose to counsel might be given in evidence to the jury. Bull. N. P. 13; Sandback v. Thomas, 1 Stark. R. 306; 2 Greenl. Ev. § 456, and authorities cited in note n, 1 and 3.

The whole fee paid would not necessarily be allowed by the jury, for they would judge of its reasonableness, and in their estimate would allow only what they thought just and proper on that account; but there could be no objection to its being proven that the fee was paid.

' In reference to the subject of the second and third bills of exceptions it may be re-, marked that whilst it is not at all times easy to see the exact bearing of evidence offered upon the issue between the parties, it is sometimes difficult to say that it is so ■utterly irrelevant that it may mislead the jury and should for .that cause be excluded’. Evidence may seem not to bear immediately and. directly upon the contested matters of fact in the cause, yet it may serve to illustrate the conduct of a party by throwing light upon the motives by which he may have been prompted; and where this is a material inquiry if the evidence tend to do this in any degree, it ought not to be rejected although the court tnay think it not entitled to great weight with the jury. Now the evidence of both Phillips and Gibson was of this character. A short time before the capias was sued out, the defendant spoke to the witness Phillips in an angry and excited manner about the plaintiff, complained of an alleged injury that he had received from him, and intimated a determined purpose “to go to work” upon him, and to make -some use of the matter against him at the next Circuit court. The feeling which he manifested was of any thing but a kind and friendly character.—The witness Gibson was the president of a branch bank *at which the plaintiff had been a borrower, “in the town of Romney, some distance from the residence of these parties; and being on a visit to Randolph county, he fell in with the defendant; and in conversation, the latter very unnecessarily introduced the subject of the indebtedness of “the Harpers,” (no doubt including the plaintiff,) and made a remark plainly calculated to impair their credit at bank, and which appears to have had its effect upon the mind of the witness. If the testimony of these witnesses did not bear directly upon the subject of the capias sued out by the defendant, it certainly tended to show the mind and feeling of the defendant towards the plaintiff, and with the other circumstances of the case might serve to make out the malice imputed to him.—Chambers v. Robinson, 1 Str. R. 691; 2 Stark. Ev. $ 64; 2 Greenl. Ev. $ 453, and authorities cited. I cannot undertake to say that the Circuit court erred in permitting it to go to the jury to have such weight as they might think it entitled to.

The fourth bill of exceptions was to the introduction of the record of the case in which the affidavit was made and the capias complained of sued out. It is conceded that so much of the record as disclosed the suing out of the process, and that it was quashed by the court, might properly have been in evidence, but it is insisted that all the rest was inadmissible.

In general, when a record is to be given in evidence, the whole record should be produced. Thus it is said where any record is exemplified, the whole record must be exemplified; for the construction must be taken from the view of the matter taken together. 3 Inst. 173; 3 Bac. Ab. by Bouvier (Phil. Ed. 1852) “Evidence,” E. p. 536; and Chief Baron Comyn says “the whole record which concerns the matter in question ought to be produced,” 4 Com. Dig. “Evidence,” A, 4, p. 89; 2 Phil. Ev. 188. There may be cases doubtless *in which by way of exception to the general rule, parts of the record have been held sufficient for the purpose for

which they were introduced; but in them there could be no objection to the production of the whole. And although it might have been sufficient in this case, if the party desired only to prove the suing out of the capias and that it was quashed, to read so much of the record as went to that extent, yet I conceive, the party had a right to read the whole. If there was any portion of it not proper for the consideration of the jury, the party should have pointed it out distinctly, and asked the court to instruct the jury to disregard it. See Buster’s ex’or v. Wallace, 4 Hen. & Munf. 82; Harriman v. Brown, 8 Leigh 697. The objection therefore was too broad and not made in the proper mode. But I do not perceive why the whole record was not proper for the jury. All the facts and circumstances connected with or surrounding the transaction in issue are proper to be considered for its more perfect elucidation; 1 Greenl. Ev. § 108 et seq., 2 Ibid. ? 89. The record offered was of the case in which the affidavit and capias complained of occurred, and the facts which it disclosed were closely connected with the wrongful act complained of. It showed that the defendant had instituted an action against the plaintiff for malicious defamation, claiming a large amount of damages, and had caused the plaintiff to be unlawfully arrested and imprisoned to answer this demand.—It further showed that his allegations were unfounded, that he had no cause of action, and that he had not the slightest ground on which to sue out the capias. All this, as it seems to me, was strictly germain to the issue between the parties, and was matter which the jury might well consider on the question of malice in connection with the other circumstances of the case, and in making their estimate of the damages which the party was entitled to recover. 2 Greenl. Ev. § 89; Ibid. § *267; Merest v. Harvey, 6 Taunt. R. 442; Bracegirdle v. Orford, 2 Maule & Sel. 77; Tullidge v. Wade, 3 Wils. R. 48; Shafer v. Smith, 7 Har. & John. 67; 2 Greenl. Ev. § 272. Upon both grounds, I think the court properly permitted the record to be read.

The fifth bill of exceptions related to the instruction given b3r the court to the jur3r, on the motion of the plaintiff below, and is much complained of by the plaintiff in error here. The instruction was given after the case had been argued before the jury; and it may be inferred, from its peculiar character, that it was drawn up by the plaintiff’s counsel, with a view to meet various arguments urged by the defendant’s counsel, which they deemed unsound. It is certainly not a model of judicial brevity or skillful generalization ; and the court might well have declined giving it in the precise terms demanded, and have modified it so as to propound the law in more succinct and general terms. As it did give it, however, in the terms of the bill of exceptions, the only inquiry here is what proposition of law it announces, and whether it be correct or otherwise. And it seems to amount simply to this: That if the jury believed the defendant had unlawfully sued out process of arrest against the plaintiff, and had caused him to be imprisoned upon it, and the process was afterwards set aside because illegally issued, it constituted no defence to the party, but that the plaintiff was entitled to recover damages for the wrong done him, without regard to the motives of the defendant, or the circumstances attending the doing of the wrongful and unlawful act.- Thus construed, the instruction involves no other question than what has been already considered upon the demurrers to the several counts in the declaration; and I will not repeat what has been said as to them. I think there is nothing in the instruction for which the -judgment should be disturbed.

*With regard to the instruction moved for by the defendant, the refusal to give which by the court constitutes the subject of his sixth bill of exceptions, it may be remarked, that as it does not appear that any evidence was offered tending to show that he had probable cause to believe, and did believe, when he sued out the capias, that the plaintiff in the action was about to depart from the State, the instruction asked for was of so abstract a character that the refusal of the court might be justified upon that ground. But even if the party had probable cause to apprehend his departure, yet if he sued out the process unlawfully, and caused the plaintiff to be imprisoned, the recovery of the latter was not to be restricted to merely nominal damages and the costs of setting aside the process. Por, although if the act were done without malice, the party might not be liable to exemplary and vindictive damages; yet, certainly, the act being unlawful, and in violation of the plaintiff’s right, he was entitled to recover for the loss of time, interruption of his business, and the suffering, bodily and mental, which the act might be shown to have occasioned. I think, therefore, the instruction was properly refused.

Another and the last ground of error alleged, is that the .jury was not legally constituted. This was probably assigned through inadvertence. The 8th section of chapter 162 of the Code, which' requires twenty-four jurors to be summoned, where a special jury is allowed, of whom eighteen are to be chosen by lot, has been replaced by the twenty-seventh section of chapter 27 of the Sessions Acts of 1853, (p.' 46,) which requires the panel to be twenty, and sixteen to be chosen therefrom by lot. So that the jury was constituted strictly in the manner prescribed by the existing law. But if it had been otherwise, and there had been irregularity in forming the jury, unless the party is shown to be injured by *it, the objection should have been made before the swearing of the jury. Sess. Acts 1852, ch. 27, § 25. Certainly it would come too late when made for the first time in this court.

I am of opinion to affirm the judgment.

The other judges concurred in the opinion of Tee, J.

Judgment affirmed.  