
    Moore v. Chapman.
    Monday, November 28, 1808.
    Trespass — Assault and Battery and False Imprisonment —Case at Bar. — Trespass for assault and battery, and false Imprisonment, will not lie against the plaintiff, for suing out a writ of capias ad satis-faciendum, and causing the defendant to be taken in execution, while he was attending Court as a witness, under the protection of a subpoena, although the debt for which the execution issued had been previously paid.
    Same — Same—Process Unsuperseded. — Nor can any action be sustained, as it seems, till the process of execution be quashed, or superseded.
    
      This was a supersedeas to a judgment of the District Court held at Hay-market, reversing a judgment of the County Court of Fairfax.
    Moore brought an action against Chapman in the County Court of Fairfax; the declaration charges an assault, battery, and false imprisonment of the plaintiff: by the defendant, on such a day, at the Parish of Fairfax, in the County of Fair-fax. The defendant filed certain pleas, not in the record, (neither is the nature of them mentioned,) which, by consent, were after-wards withdrawn; and, thereupon, he pleaded not guilty; and, by consent, leave was granted him to give all matters in evidence at the trial that he could have specially pleaded. After which, the parties went to trial; when a bill of exceptions was filed by the defendant’s counsel; stating that, on the trial, the plaintiff offered evidence to prove that, on the application of one Willoughby Tebbs, an execution was issued by the Clerk of Dumfries D. C. on behalf of the defendant Chapman, against the body of the plaintiff, for 371. 2s. 7d. with interest thereon and costs, which execution -was not directed to any Sheriff, but was put into the hands of the said defendant; *who, it was proved, had given the Clerk written instructions to issue the same; that the said execution was thereafter delivered to the sheriff of Prince William County; but, by whom, it was not served: and, further, that the plaintiff was a resident of Fairfax ever since and before the issuing the execution; and that, “whilst he was sojourning for a time in the County of Prince William, being then and there regularly summoned by subpoena to attend the Court of that County as a witness, the Sheriff of Prince William seized his body, and held him in custody for the space of-, until he shewed that he was attending the County Court of P. W. on a summons, when he was immediately discharged:” but that the said arrest and imprisonment was made without any direction of the plaintiff (it is supposed it should be the defendant in this action) other than before mentioned: and further, that the plaintiff’s counsel alleged, and gave evidence to prove that the judgment, upon which the execution was issued, had been paid and satisfied, by the plaintiff to Tebbs, to whom it was assigned. Whereupon the counsel for the defendant requested the opinion of the Court whether the evidence aforesaid was proper to be submitted to the Jury in support of the issue on the part of the plaintiff; and whether the declaration was not too general, and should not have stated the nature of the action ; and whether the issuing of an execution from the District Court to —--Sheriff, which was served by the Sheriff of Prince William County, would support an action of trespass, for a false imprisonment. The Court instructed the Jury, that, if they should find from the evidence that the judgment was. paid before the issuing of the execution, then the action aforesaid, on the declaration aforesaid, could be well sustained, on the evidence aforesaid. The bill of exceptions was sealed. There was a verdict and judgment for 60i. damages, which was afterwards reversed by the District Court; to which judgment of reversal a writ of supersedeas was granted by a judge of this Court.
    *'Randolph, for the plaintiff in error. The action was properly instituted against Chapman. He ordered the execution in his own name, and put it into the hands of Tebbs. It was by his procurement that the imprisonment happened; and therefore he is responsible, 
    
    Although an action for false imprisonment might have been proper, yet trespass, assault and battery, and false imprisonment, was equally so. The payment of the judgment to Tebbs, to whom it had been assigned, operated as a discharge, and as if there had been no execution at all. An action for false imprisonment lies, where-ever a person is arrested either by void or irregular process; or where the Court has no jurisdiction, or exceeds, or does not pursue it.
    
    Botls, for the defendant in error, relied on the following points; 1. That, if a plaintiff in a judgment, after payment of the same, cause an execution to be levied, no action will lie for such vexation ; but the redress will be in a summary way, before the Court whose process is abused, or by injunction. Suppose a person, thinking he had a right of action, should bring a suit, and on the trial, the Jury should find for the defendant; would it be said that he was liable to an action for the arrest? How much stronger is the case where a party has the judgment of a Court! If an action will lie in this case, it will lie in every one where the defendant is held to bail, and the plaintiff fails in his suit.
    2. Thai, in a case like this, a general declaration in trespass, assault and battery, and false imprisonment, can *not answer the only end of one, to apprise the opposite parts' that a question of payment was to be litigated; though such declaration might well put .him off his guard, by removing all suspicion of such question, and by alluring him into exclusive preparation for another.
    In order to connect the Sheriff with the plaintiff, the whole proceedings should have been stated. On the same principle, it was decided in the case of Áverton and wife v. Hudson,  that general indebitatus assump-sit would not lie against the high Sheriff for money received by his deputy; but that the declaration should have contained a specification of the fact. The same principle, as to the contents of a declaration, is laid down by the President in delivering his opinion in the case of Chi-chester v. Vass.  If the object of a declaration be to appraise the defendant of the cause of action, it would be as well to have no declaration, as such an one as this. Wherever there is a special contract, or a special cause of action, the plaintiff must give notice of it in his declaration; and can never be permitted to turn the generality of the count into a surprise upon the defendant, 
    
    3. That whatever injury was proved, was not sustained immediately by the defendant’s act of issuing the execution, or delivering it to Tebbs, or to the Sheriff, (if he did so deliver it to either,) but the sole injury was from the seizure of the plaintiff’s person by the officer, without any new act of the defendant’s; which injury was consequential to the said issuing or delivery, so as to fit the remedy of an action of trespass on the case, 
    
    4. That a writ emanating from a court of competent jurisdiction, cannot be the medium of a trespass, assault and battery, and false imprisonment, with force and arms, 
    
    5. That, upon a fair construction of the opinion of the Court, nothing was referred to the Jury but the question of payment; on proof of which, according to that instruction, the action could be well sustained on the evidence given; thereby discharging the Jury from a consideration of the *weight or sufficiency of the evidence touching the issuing and levying of the execution; and precluding them from the inquiry whether the execution went out of the hands of the defendant by design, fraud, or accident; since, without evidence of either, the action, in the opinion of the Court, could be supported. That the Court cannot instruct the Jury on the weight or sufficiency of the evidence, is a position which has been established by many decisions, 
    
    
      
      False Imprisonment — Process Unsuperseded. — To the point that the defendants are not liable in an action of trespass for false imprisonment while the warrant remains unsuperseded, see the principal cited in Stanton v. Seymour, 22 Fed. Cas. 1074. See monographic note, on “Assault and Battery” appended lo Roadcap v. Sipe, 6 Gratt. 313, and monographic note on “False Imprisonment" appended to Jones v. Commonwealth. 1 Rob. 748.
      Province of Jury — Weight on Evidence. - Several late Virginia cases cite the principal case to support the proposition that when the evidence is parol, any opinion given by the court a,s to the weight, effect or sufficiency of the evidence submitted to the jury, or any assumption of fact as proved, is an invasion of the province of the jury. Cornett v. Rhudy, 80 Va. 716; Richmond, etc., R. R. Co. v. Noel, 86 Va. 24, 9 S. E. Rep. 473; Tyler v. Chesapeake, etc., R. R. Co., 88 Va. 394. 13 S. E. Rep. 976. Sea foot-notes to Fisher v. Duncan, 1 Hen. & M. 563; Ross v. Gill, 1 Wash. 87; Davis v. Miller, Í 4 Gratt. 3.
    
    
      
       2 W. Black. Rep. 1055. Rafael v. Verelst.
    
    
      
       Esp. N. P. 329, 330.
    
    
      
       1 Bac. Abr. Gwil. ed. 309. til. Audita Querela, let. B. note at bottom, cites 4 Mod. 14, Baugh v. Killinsworlh. 
      
    
    
      
       Trt the late editions of Bacon’s Abridgment there is a ciumre whether a special action on tile case would not lie? The above dictum is taken from the argument of Tremaine. Sergeant, in the case oí Baugh v. Eillingworth: and although the reporter says, ‘For these reasons the judgment was stayed." yet the case only proves, that an action on the case, will not lie against a person for suing another in the Sheriff's Court, in London, for rent due in the country. To support the doctrine laid down by Sergeant Tremaine, a reference is madeto Cro. Jac. 133, Lady Waterhouse v. Bawde; but that case only establishes the position, that an action will not lie for suing in a proper Court, though there be no cause of action. — Note in Original Edition.
    
    
      
      a) 2 Wash. 179.
    
    
      
       t Call, 104.
    
    
      
       Per Lord Mansiteld, in Weston v. Downes, Doug-. 23, 24, and in Long-champ v. Kenny, Doug. 138
    
    
      
       Bull. N. P. 12.
    
    
      
       3 Term Rep. 183, Belt v. Broadbent.
    
    
      
       1 Wash. 90, In the case of Ross v. Gill, &c., Ibid. 203, Keel and Roberts v. Herbert: 1 Hen. & Munf. £,63, Fisher’s Executor v. Duncan and Turnbull.
    
   Friday, December 2.

JUDGE TUCKER,

after stating the case, proceeded:

The consent entered in the County Court, that the defendant might give in evidence upon the trial of the issue joined, any thing which he could have specially pleaded, takes away all objection to his not having pleaded a regular judgment of the District Court, as a justification of the arrest of the defendant upon the execution: an omission which otherwise might have been fatal. The plaintiff’s own evidence, however, as stated in the bill of exceptions, shews that there had been a regular judgment of a Court of Record; and by the act of 1792, the practice of issuing executions, without being directed to any sheriff, (however irregular at common law,) has received a sanction which nothing but an express legislative act would ever have obtained for it in a Court of Common law. Having thus disposed of these points, it remains to consider,

1. Whether the plaintiff’s action, under the circumstances of this case, will lie? And there can be no doubt, that, where a party is taken in custody upon a process, which is for any reason void; as if a capias ad satisfaciendum be sued out against an executor or administrator, on a judgment obtained against him for a debt due by his testator, without establishing a devas-tavit; such writ is merely void, and an action of trespass and false imprisonment lies against the plaintiff suing out the writ, though not ^against the Sheriff, So, if a term intervene between the teste and the return of' a capias, But, it would seem that, where the process is irregular only, the plaintiff, at whose suit the arrest is made, is not liable to an action of trespass, until the writ is superseded. Eor, per Buller, Judge, till then, it is a justification, And the same doctrine seems to be recognised in 2 Blacks. Rep. 846, 867, 1191, 1194,3 Wilson, 342,(1) 345, 3 Wilson, 376, (m) 1 Strange, 509. But, in the case before us, the process was not yoid, for there is shewn to have been a judgment upon which it was founded, which is not alleged to have been unduly obtained, or reversed. The defendant, if he had paid the debt, ought, according to the authority of Judge Buller, applied to the District Court to supersede, or quash the second execution, thus vexatiously sued out, before he brought his action. And there seems to me to be very strong reasons in favour of this preliminary course of proceeding. For, otherwise, the satisfaction and discharge of every debt for which a judgment is recovered in the highest Court of Record in the country, may be collaterally inquired into in any inferior Court in the country. Whereas it belongs, exclusively, I conceive, to the Court where the judgment is recovered to determine whether that judgment hath been actually satisfied and discharged. A contrary practice would introduce numberless inconveniences, since every execution issued from one Court, and served, may be the parent of a dozen other suits in other Courts. And there is an additional reason for this construction given bj' Ed. Ch. J. Grey. “Trespass, (by the way,) says his Eordship, must be certain, and either an injury or not, at the time of the act done. It cannot depend on the subsequent discretion of the Court, in granting or refusing the discharge.” Now suppose the District Court of Dumfries, on motion to quash this execution on the ground that the judgment was discharged, had refused, as it might, if not satisfied with the reasons given for quashing it, «could the defendant have maintained this action? And, since it still may be in the discretion of that Court to quash it or not, for any thing that appears in this bill of exceptions, could this action be maintained without shewing this? And, if it could not, have not the Court erred in instructing the Jury that, if they were satisfied of the payment, the action could well be sustained by the evidence stated in the bill of exceptions? I am clearly of that opinion, not only for the preceding reasons, but because this Court have repeatedly declared it to be error if the Court undertake to instruct the Jmy as to the weight, or sufficiency of the evidence offered to them,

A second error appears to me in this, the assault and false imprisonment are stated in the declaration to have been committed at the parish of Fairfax, in the County of Fairfax. The evidence excepted to, is an execution issuing from the District Court of Dumfries, which was served at Prince William Court, where the defendant was attending as a witness, and while he was sojourning- (as he expresses it) for a time in the County of Prince William. Now, although trespass is a transitory action, like debt upon a bond, yet if it appear from the evidence that the trespass was committed, in the one case, or the bond executed in the other, in a foreign place or jurisdiction, there must be an allegation in the declaration, that it was so executed, or so committed, at the place to which the evidence necessarily points, to wit, in the County, or country, in which the suit is brought; under a videlicet. This is necessary in order to a proper venire. It is necessary also to prevent a multiplicity of suits. For, if there had been no exception taken to this testimony, how could a recovery in this action be pleaded in bar of any future action brought in twenty other Courts for the same cause?

A third ground upon which I conceive the County Court erred, is, that supposing the execution not to have been previously satisfied, the taking him into custody upon that execution whilst he was attending as a witness at the County «Court of Prince William, and detaining him in custody until he shewed that he was there attending on a summons, was not a sufficient cause to support this action of trespass, assault and battery, and false imprisonment, as was decided in Cameron v. Eightfoot, where this point was fully considered; and the Court decided that the writ was not void, nor the arrest illegal, but improperly timed, only. And the Court there said, that the privilege of the witness was not considered as the privilege of the person attending, but of the Court which he attends.

I have taken no notice of the evidence which might have been given to the Jury, except what is stated in the bill of exceptions ; the mass of papers copied at the end of the record, as has been more than once decided, though certified by the Clerk to have been filed in the cause, not being properly before this Court.

For these reasons I am of opinion that the judgment of the District Court should be affirmed.

JUDGE) ROANE)

said, that he could see

no error in the judgment of the District Court; and was in favour of affirming it.

JUDGE FEEMING

was of the same opinion. 
      
      -) Rev. Code, 1 vol., c. 76. s. 39.
     
      
      Oi) 2 Blacks. Rep. 866, Barker v. Braham; 3 Wilson, 368 S. C.; 2 Blacks. Rep. 1192,1193, 1194, Cameron v. Lightfoot. See also 3 T. R. 183, Belk v. Broadhent & Wife.
     
      
       2 Blacks. Rep. 845, Parsons v. Lloyd; 3 Wilson, 341, S. C.
     
      
       Doug. 652, Tarlton v. Fisher.
     
      
      
         Parsons v. Lloyd.
     
      
       Barker’s Administrator v. Braham, &c.
     
      
       Cameron v. Lightfoot.
     
      
       Philips v. Biron.
     
      
       2 Blacks. Rep. 1193, in the case of Cameron v. Lightfoot.
     
      
       Fisher's Executors v. Duncan and Turnbull, 1 Hen. & Munf. 577. vide also 1 Wash. 90, 203.
     
      
       8 Black's Rep. 1190.
     