
    Josiah Turner vs. James Walker.
    
    December, 1831.
    Where goods taken under a fi. fa. have been sold for a part of the amount due on the judgment, a ca. sa. cannot be legally issued for the residue, until the sheriff has made a final return of the A- fa. showing what has been done with the property. This return should be in term time; if made in the recess to the clerk’s office, it is void. The same principles apply to a venditioni exponas.
    
    An action upon the ease is the proper remedy against one who maliciously procures a ca. sa. to be issued, and another to be arrested under it.
    The foundation of such an action is malice, and a want of probable cause, which must be proved.
    The fact of malice is always a question for the jury.
    Malice may be, and most commonly is, in such actions, implied from the want of reasonable or probable cause, that being first established. But the presumption of malice resulting from the want of probable cause is not conclusive, and the defendant, for the purpose of rebutting the inference of malice, may he let in to show, for instance, that he acted under the advice of counsel. The effect of such evidence, is however, for the j<»7-
    Evidence of the conduct and declarations of the defendant in relation to, and in the course of the transaction—of the situation of the parties—of the nature and extent of the injurious means resorted to by the defendant to effect his object, and of his forwardness, zeal and activity manifested in the procurement and use of the means employed, may properly be adduced to prove malice.
    It is generally true, that in an action for a malicious prosecution, or a malicious arrest, malice—the want of probable cause, and also the determination of the prosecution, or of the suit in which the writ was sued out, must be averred and proved.
    But where a vendi. was sued out, returnable to March, and the sheriff in fact executed that writ, and returned it to the clerk’s office in December, and the plaintiff then sued out a ca. sa. which was also returnable to the same term, with the vendi. under which the defendant was arrested and imprisoned in December, the reason for averring in an action upon the ease, the want of probable cause for the arrest, and the determination of the suit, does not exist, and a declaration showing the facts specially, in the absence of the ordinary averment, would be sufficient.
    It is not upon the evidence, but upon the pleadings, and evidence applicable to the pleadings, that a plaintiff can recover in any case.
    Where the plaintiff, who had obtained a verdict in an action for a malicious arrest, died pending an appeal, the court, on reversing the judgment upon a bill of exceptions, refused a procedendo.
    
    
      Appeal from Prince George’s County Court.
    This was an action on the case brought by the appellee, against the appellant, on the 10th of January, 1827, in Saint Mary’s County Court, and removed, upon the suggestion óf the defendant, to Prince George’s County Court.
    The declaration was as follows: “For that heretofore, to wit, on the 13th of December, 1826, at, &c., the said Josiah, unlawfully and maliciously procured, and caused to be issued out of the clerk’s office of the County Court of said county, a certain precept of the said court, commonly called a writ of capias ad satisfaciendum, attested by the chief judge, and certified by the clerk of the said court, under the seal of office of the said clerk, bearing date the 13th of December, 1826, directed to the sheriff of the said county, commanding him to take the body of him the said James into his custody, and him safely keep in his custody, by the authority of the said writ; and that thé said Josiah Turner, then and there unlawfully and maliciously delivered the said ■writ to William Williams, the sheriff'for the time being,.of the said county; and then and there, unlawfully and maliciously procured, and caused the said sheriff, then and there, to arrest the said James, and imprison him for a long time, to. wit, for the space of two months thence next ensuing the said arrest; he, the said Josiah, then and there pretending and declaring to the said sheriff, that the said writ was lawful and right, and fully authorised and required the said sheriff to arrest and imprison the said James; whereas the said James avers, that the said writ was unjust and unlawful, and oppressive to him, and obtained by fraud and ..deceit; and the said James in fact says, that the said Josiah Turner did, on the day and year last aforesaid, at the county aforesaid, unlawfully, maliciously and fraudulently, cause .and procure, by the means aforesaid, the arrest and imprisonment of him the said James, in manner and form, and for the time aforesaid, in abuse of the legal process of the said court, and in contempt and disregard of the said court, and its authority; and in oppression of him the said James, to the damage,” &c. The defendant pleaded not guilty, and issue was joined.
    1. At the trial the plaintiff read in evidence to the jury by consent of parties, the record of a writ of capias ad satisfaciendum, issued out of the clerk’s office of Saint Mary's County Court, on the 13th of December, 1826, on a judgment in said court, at the suit of William T. Cross Co. use of Josiah Turner, against James Walker. The writ recites, that on the 22d of Mareh, 1825, a fieri facias had' issued on said judgment, returnable to the first Monday in August then next. That on the return day of said writ, the sheriff returned that he had taken in virtue thereof, sundry real and personal estate, the property of Walker, which remained on hand for want of buyers, and which said goods and chattels were replevied out of his hands. It further recited, that on the 28th of August, 1826, a writ of venditioni exponas, issued for the sale of said real and personal property, returnable to the first Monday of March next following—■ which last mentioned writ, the sheriff returned on the 12th of December, 1826; that by virtue thereof he had sold the property levied on for the sum of $88 25, and which was not sufficient to satisfy the said judgment at suit of Cross &[ Co. for the use of said Turner. Whereupon the said sheriff was commanded, &c. At the return day of said capias ad satisfaciendum, to wit, on the first Monday of March, 1827, the sheriff returned the same “cepi,” when a motion was made by the said Walker, to quash the same, upon the ground that the writ of venditioni exponas, was returned to the clerk’s office, on the 12th of December, 1826, being in in the vacation or in the recess of the court; and that on the 13th of December, 1826, the plaintiff caused the ca. sa. to be issued. The County Court quashed the said ca. sa. and discharged the defendant, Walker, from custody. It was agreed that the fieri facias and return thereto, the venditioni exponas and return, the capias ad satisfaciendum and return, and the motion to quash the same, with the proceedings thereon, should have the same effect as if the records were inserted at large. The plaintiff also proved that he was arrested by the sheriff of Saint Mary's County, on the 14th or 15th of December, in the year 1826, and kept in close custody for seven or eight days, by virtue of the said writ of capias ad satisfaciendum, the defendant being present at the time of the arrest, ordering it to be done, and directing the said sheriff to keep the said plaintiff in close confinement. The plaintiff further proved by Joseph Harris, clerk of Saint Mary's County Court, that he was applied to by the defendant, on the 13th December, 1826, the day on which the capias ad satisfaciendum issued, to issue the same, that he objected to doing so, upon the ground that it was unusual, and would not issue the same, unless written orders were given to that effect: that such orders were given by G. N. Causin, Esq. the counsel for the present defendant; he the defendant being at the time present, sanctioning and approving of the orders given by the said counsel. Whereupon the defendant, by his counsel, prayed the court to instruct the jury, that the above capias ad satisfaciendum was legally issued, and that the plaintiff could not support his action—which instruction the court [Stephen, Ch. J., and Key, A. J.] refused to give, and instructed the jury, that the said writ was issued irregularly and illegally, and that the arrest, above stated, of the plaintiff under it,, was a sufficient ground to support the present action. . i
    The defendant then prayed the court to instruct the jury, that the plaintiff, on the above evidence, could not support the present action on the case, but should have brought an action of tresjiass vi et armis, which instruction the court also refused to give; and instructed the jury, that the plaintiff was entitled to recover in the present form of action. The defendant also prayed the court to instruct the jury, 1st. That the capias ad satisfaciendum was legally issued; the judgment on which it was issued, being in-force and unsatisfied, and the whole of the property seized under thejfieri facias having been sold ; and the writ under which the sale had been made, having been previously returned by the sheriff. 2d. That if the plaintiff in the suit had no right to apply for a ca. sa.; at the time it was issued the clerk bad no authoriy to issue it, and there being no legal authority for the issuing of the same, it was a nullity. 3d. If the writ ought not to have been issued, the' sheriff to whom it was directed, and who had previously made the return of the venditioni exponas aforesaid, was not bound to execute it. 4th. That if the said writ of capias ad satisfaciendum, was improperly issued by the clerk, the defendant in this suit is not answerable in damages to the plaintiff, for any act done previous to the arrest. 5th. That damages for the act of arrest, can be recovered only in an action of trespass vi et armis. Gth. That if the plaintiff had offered proof of any injury, which entitled him to recover damages in an action on the case for a malicious arrest, yet that the nar. does not entitle him to recover such damages, inasmuch as it does not state that the proceeding which is made the ground of the action, was commenced without probable cause, nor ended. 7th. That if this be an action on the case of any other description, the plaintiff cannot recover, because the injury of which he complains in the declaration, is not charged in the declaration to follow consequentially from any act of the defendant, other than that of causing the plaintiff to be arrested. 8th. That if the jury should be of opinion, from the evidence, that the defendant, when he applied to the clerk of Saint Mary’s County Court for, and obtained the writ of ca. sa. aforesaid, did not believe it was illegal to issue the same, and at the time of putting the same into the sheriff’s hands, he did not believe that the arrest of the plaintiff in virtue of the same would be illegal, but had been advised by his counsel, and believed that he had a right to sue out the same, and have the defendant arrested under it; and further, that the defendant, when he directed the same to be served, did not claim more than the balance bona fide due on said judgment, after allowing the whole sum made on the venditioni exponas aforesaid, then the plaintiff is not entitled to recover upon the pleadings and issue in this suit. 9th. That if the jury should be of opinion from the' evidence, that the clerk of Saint Mary’s County Court, upon being applied to by the .defendant, refused to issue the ca. sa. aforesaid, and that the same was issued by the clerk aforesaid, after his refusal aforesaid, and in consequence of the directions of G. N. Causin, Esq., an attorney of said court and the counsel of the defendant in that cause, then the plaintiff, upon the pleadings and issue in this cause, is not entitled to recover, although the defendant was present at the time of the issuing of the same, and repeated his request to the said clerk; and was afterwards present, at the time of the arrest of the plaintiff, and directed it, and also directed tbe sheriff to commit him to prison. These several instructions the court refused to give. The defendant excepted, and the verdict and judgment being against him, he brought the present appeal.
    The cause was argued before Buchanan, Ch. J., Earle, and Archer, J.
    
      Magruder and Stonestreet, for the appellant,
    contended,'
    1. That the'court erred in refusing to instruct the jury that the ca. sa. was legally issued. 1 Archbold, Pr. 270. Oviat vs. Vynar, 1 Salk. 318. Miller vs. Parnell, 6 Taunt. 370. 1 Sellon, Pr. 535. 2. That there was error in instructing the jury, that the ca. sa. and the arrest in virtue of it, were sufficient to support the action ; without saying that it was necessary to prove malice, or want of probable cause, or even that they must believe any part of the testimony, in order to find a verdict for the plaintiff. 3. If the plaintiff had a right of action, and especially if he could sue and recover, without alleging and proving malice, and a want of probable cause, the action ought to-have been an action for false imprisonment, trespass vi et armis and not an action on the case. 4. That there was error in refusing to instruct the jury, that if they were of opinion, that the plaintiff in error, when he applied to the clerk for the writ, did not believe it was illegal to issue the same ; and at the time of putting the same in the sheriff’s hands, did not believe that an arrest in virtue thereof, would he illegal; but had been advised by the counsel, and believed he had a right to sue out the same, and that when he directed it to be served, did not claim more than the balance bona fide due, after deducting what was made on the venditioni exponas ; then the plaintiff was not entitled to recover upon the pleadings, and issue in the cause. On the 2d, 3d, and 4th points, they referred to Morgan vs. Hughes, 2 Durnf. and East. 225, 231. Snow vs. Allen, 2 Serg. and Low. 485. Ravenga vs. McIntosh, 9 Ib. 225. 1 Stark. Ev. 503. Purl vs. Duvall, 5 Harr. and Johns. 69. 5. That there was error likewise, in rejecting the prayer, grounded upon the evidence in the exception, that the clerk refused to issue the writ when applied to by the defendant, and that he issued the same in obedience to directions from his counsel. 6. If the plaintiff had elected to waive the trespass, and sue for consequential damages, he was bound to have shown malice, and a want of probable cause, and that he had been legally discharged from the arrest, before he instituted his action, all of which should have been alleged in his declaration. Towson vs. Havre De Grace Bank, 6 Harr. and Johns. 47. 2 Saund. P. Ev. 192.
    
      C. Dorsey and Johnson, for the appellee.
    1. Is the present form of action the proper one, assuming that a right of action of some sort exists ? They insisted, that in all cases, in which a party is imprisoned in virtue of process, the proper remedy against the party who causes it to be issued, is case. And the rule is the same, whenever process issues illegally, upon a regular judgment, whether it bo against the property or person. Hobert, 205. Gyfford vs. Woodgate, 11 East. 297. Elsee vs. Smith, 18 Serg. and Low. 344. 2 Saund. P. and Ev. 651; and for the purpose of this point, the process may be considered, as so far régular, as to have made it the duty of the sheriff to execute it. 1 Archb. 6, 284. Shirley vs. Wright, 2 Ld. Raymond, 775. 2 Bac. Abr. title execution, 709. 2. The ca. sa. should not have issued, until the previous process had been finally returned. Wilson vs. Kingston, 18 Serg. and Low. 307. A return by the sheriff in vacation, before the return day, cannot be a final return. The reason for the rule, that new process cannot issue until a preceding writ is finally returned, is, that the defendant may see, and object to the return, if there is ground for it. The purpose is to ascertain, if further process is necessary. It is hot asserted, that a ca. sa. and venditioni exponas, can both be running at the same time, and yet in this case, the test day of both, is the same. At any time before the return day of the venditioni exponas, the sheriff might have changed his return, and therefore the return made upon it, when lodged in the office, in vacation, could not have been finalj becaüse then his control over it would have ceased. The venditioni was returnable process, and not returned. The case then, is one, in which an injury has been inflicted by process, maliciously set in motion by the defendant. On the face of the declaration, the arrest under the ca. sa. appears to have terminated. The writ being irregular, when the sheriff permitted the defendant to go at large, he was not bound to arrest him again. The arrest therefore had ended, and this appears upon the face of the declaration. It is no justification that the defendant acted by the advice of counsel if he was influenced by malice. Ravenga vs. McIntosh, 9 Serg. and Low. 225. Hewlett vs. Cruchley, 5 Taunt. 277.
   Buchanan, Ch. J.,

delivered the opinion of the court.

Booking to the evidence in this case, it is perfectly clear, that- the writ of capias ad satisfaciendum,, on which the defendant in error is alleged to have been maliciously arrested, issued irregularly, and illegally. Where goods taken under a' fi.' fa. have been sold, for a part of the amount due on the judgment, a ca. sa. cannot be legally issued for the residue, until the sheriff has made a final return of the fi. fa. showing what had been done with the property. For as the second writ is grounded on the first, and the return thereof, and must recite the proceedings thereon, the first must be returned before the second can issue. And it is proper and necessary to the security of the defendant, that it should be returned in term time, in order that he may have a day in court, to protect his rights. If it was otherwise, it would be in the power of a sheriff, or of a plaintiff by collusion with the sheriff, to practise great abuses. But when there is a return of the fi. fa. by which it is seen, what has been done with the property seized under it, there is something to control the sheriff, and to restrict the plaintiff to the amount for which he is entitled to have the body, by showing how much he has already received. A fi. fa. therefore, is always made returnable in term time, and cannot be otherwise legally returned. And if it be returned to the clerk’s office, at any time during the recess, it is in law wholly void, and as no return, and a ca. sa. cannot legally be founded upon it. The same principle applies to a venditioni exponas, which was issued on a return by the sheriff, “ that goods taken under a fi. fa. are on hand for the want of buyers. ” And the ca. sa. in this ease was sued out, on a return of a venditioni exponas to the clerk’s office, during the recess of the court, which the law did not authorise.

It has been urged at bar, that the action is misconceived, and should have been trespass vi et armis for false imprisonment. But we think there is nothing in that objection, and that the court below did right in refusing so to instruct the jury. If the plaintiff in the appeal, did maliciously procure the ca. sa. to be issued, and the defendant to be arrested under it, case, for such malicious arrest, is the appropriate remedy, the process issuing from a court of competent jurisdiction. It is not res nova. The principle upon which such actions are sustained, is a familiar one in the books, and too well settled to require tobe discussed here, But the foundation of the action being malice, and a want of reasonable or probable eause, which must he proved, and the fact of malice, being always a question for the jury, the instruction, that the ca. sa. issued irregularly and ille-i gaily, and that the “ arrest of the defendant in the appeal under it, was a sufficient ground to support the present action,” was wrong, if the court intended to say, that the arrest alone, with or without malice, was sufficient to entitle him to recover; and also because it took from the jury the question of malice. •

C Malice may be, and most commonly is in such actions, implied from the want of reasonable or probable cause, that being first establishéd. But the presumption of malice, resulting from the want of probable cause, is not conclusive, and the defendant, for the purpose of rebut? ting the inference of malice, for instance, as was attempted in this case, .may be let in to show, that- he acted under the advice oí counsel; and whether he' acted ma? liciously and for the purpose of oppression, or not, is a conclusion to be drawn by the jury from all the circumstances of the case. And if he can prove, or if it can fairly be inferred, from áll the circumstances of the case, that he was not actuated by malice, or any improper motive, it will be an answer to the action ; because it disproves that, which is of. the essence of it, the malice, without which it cannot be .supported. But in an action for a malicious prosecution, or a malicious arrest, as this is, it is not' enough as lias been.supposed, for the defendant merely to show thaf he acted under professional advice, the want of probable cause having .been first established. He may'have-done that, and believed that he acted legally, and yet have acted . maliciously, and for the purpose of oppression. And having acted maliciously and oppressively, and with? out reasonable or probable cause, his belief alone, that he acted legally, will.not support him in his malicious and oppressive violation of the law. However far his taking professional advice, would go, if standing alone, to show the absence of malice, and a desire to act legally and correctly ; yet it is evidence only to go to the jury for that purpose, and may be rebutted by other surrounding eir-y eumstances, the whole of which should go to the jury.

Evidence of the conduct, and declarations of the defendant, in relation to, and in the course of the transaction; of the situation of the parties; of the nature and extent of the injurious means resorted to by the defendant to effect his object, and of the forwardness, zeal, and activity manifested in the procurement, and use of the means employed, may properly be adduced to prove inalice. And although,5 where a party has acted bona fide, and without malice, under professional advice and direction, which he believed to be sound, he is not liable, notwithstanding such advice was in fact incorrect, as inalice express, or implied, must he proved—yet he cannot shelter himself under the direction and advice of counsel merely, against evidence of purposed malice, or from which malice may fairly he inferred. And whether he acted with a fair bona fide intention, or by what motive he was really actuated, is always a question purely for the consideration of the jury.

It is generally true, that in an action for a malicious | prosecution, or a malicious arrest, malice, and the want off reasonable or probable cause, and also the determination of! the prosecution, or of the suit, in which the writ was sued out, must be averred in the declaration, and proved at thé j trial. And it is objected that the defendant in the appeal, J is not entitled to recover, under the declaration in this cause, j there being no averment, either of the want of probable cause, or of the final disposition of the ca. sa. under which5 he is stated to have been arrested.

As respects the manner of declaring, it seems to us, that this is distinguishable from the case, either of an action for a malicious prosecution, or of the ordinary action for a malicious arrest. The reason why, in the former, the .want of probable eause, and the determination of the prosecution must be averred, and proved, is, that otherwise the plaintiff might recover in the action, and yet be guilty, and afterwards be convicted of the original charge. And in the latter, that he might recover in the action for a malicious arrest, and yet the suit in which the writ was issued, under which he was arrested, be afterwards determined against him. And thus in either case, the actual existence of probable cause established, after a recovery against a defendant who was not in fault; and against whom there could'only be a recovery, in the one case, on the ground that he had no probable cause for instituting the prosecution ; and in the other, for instituting the suit. But if in this.case, the venditioni exponas, and the irregular return of it to the clerk’s office, during the recess of the court and out of term time, had been set out in the declaration, with the capias ad satisfaciendum, (founded upon that return and) issued before the return day of the venditioni exponas, under which the defendant in the appeal was arrested and put into prison—the reason requiring, an averment of the want of probable cause, and of the determi- • nation of the prosecution in an action for a malicious prosecution, and of the determination of the suit in the ordinary action for a malicious arrest, would not have existed; the want of probable cause existing apart from, and not depending upon any disposition that might afterwards be made of the ca. sa.; and the law declaring that no ca. sa. can issue, before the regular and final return of the writ upon which it is founded: and the return of the venditioni exponas, and the recital of it in the ca. sa., showing that there was no such legal return, and consequently that the ca. sa. was irregularly issued, and without any reasonable or probable Í cause. But the declaration not being so framed, and there , being no averment of the want of probable cause, and of 1 the final disposition of the ca. sa., there is no cause of ac(tion shown in the declaration, on which the defendant in the appeal is entitled to recover.

It is not upon the evidence, but upon the pleadings and evidence applicable to the pleadings, that a plaintiff can recover in any case. It is therefore, always necessary, that the declaration should set out a good and sufficient cause of action, to be judged of by the court, otherwise it is in vain to look to the evidence in the cause, upon which there can be no recovery, without a case made in the declaration. This declaration sets out no such cause of action. It merely alleges the issuing of a ca. sa. and that the defendant in the appeal, was arrested under it. But it does not show any irregularity in the issuing of it, nor supply the defect, by averring the want of probable cause, and the final disposition of it. And for any thing appearing, in the declaration, the ca sa. may have been regularly issued, and • the defendant in the appeal properly arrested under it. And it is only by looking out of the declaration, to the evidence stated in the record, that any cause of action can be perceived. For which reason, and also because the court instructed the jury, that the arrest of the defendant in the appeal under the ca. sa. was a sufficient ground to support the present action, the judgment must be reversed.

judgment reversed, and the death of the appellee having been previously suggested, a procedendo was refused.  