
    James A. M'Cool, vs. James M'Cluny.
    
      diction on the case for procuring the defendant to be illegally ar-rented on a ca. sa. The declaration alledged that the. ca. sa. had issued in a case m which “J. M.” was plaintiff; but in the ca. sa. offered, in evidence, “J. .¡If. &£ Co.” appeared to be plaintiffs: Held no variance; the words “and Co.” having no-signification.
    
    
      But as the execution was void, the judgment of which it issued' having been it regular and set aside, trespass and not case was the -proper action.
    
    This was an action on the case, against the defendant for Causing and procuring the plaintiff to be illegally arrested under a ca. sa. the judgment for which it was issued having been set aside for irregularity. The declaration stated that the ea. sa. had issued in a case wherein James JVPCluny was plaintiff, and James A. M‘CooI defendant; but, as it appeared by the ca. sa. now offered in evidence, it had issued in the name of James M'Cluny Y Co. vs. James A. M'Cool; for which variation tho court ordered a non-suit. Plaintiff’s attorney then moved the court for leave to amend, as the pleadings on the part of defendant were in an imperfect state; this was however refused. Plaintiff then gave notice of an appeal on the following grounds;
    1st. Because the evidence offered was sufficient to support the declaration.
    2nd. Because the setting out the name of the Plaintiff in the' ca. sa, under which the plaintiff liad been illegally arrested, was.-isurplusage; as it might have been stricken out, and the declaration still would have been good.
    3rd. Because at all events, the plaintiff ought to have been permitted to amend.
    
      Jl. W. Thompson, for motion,
    
    contended that this was not a. fatal variance. It was not necessary to the sustain‘Ing of the action to have alledged in whose name the execution issued; it was an immaterial averment, and might have been stricken out, without injury to the declaration; and if so, the variance will not vitiate. Surplusage may be Stricken out. There is a difference between actions in form ex-contract and those of exudelicto; contracts must be more particularly set forth. But all events, leave should have been given to amend;, which has been done even after verdict. In fact there ivas no variance or an immaterial one; the addition “& Co” was of two unmeaning characters. Cited 1 T. It. 235; 9 East,, 162; Phil. Ev. 171; 2 Esp. Dig. 492; a Con. Rep. 249; 1 Chit. Pi. 372; 13 East, 547; 14 Johns. 89; 9 Johns. 82; .1 Chit. PI. 231; 2 M‘Cord, 49.
    
      Williams, contra,
    
    contended that although the allegation might have been omitted in the declaration, yet being inserted, it became material. The wrong description of the execution might mislead a defendant. Timé is not material, but the foundation of the action must be correctly set forth.
    But on another ground the non-suit must be supported. There being in point of law no judgment on which the ca. sa. could issue, it was void; the arrest was false imprisonment, and this action should have been trespass and not case. If the proceedings were not void or irregular, the plaintiff could not. maintain any action for the injury. If trespass vi et armis will lie, case will not. If it appear that the action cannot be supported, the court will not set aside the non-suit, though this specific ground was not taken in the court below. Cited 3 Wile: 341; 2 Blue. Rep. -1 (S. C.) 845; 2 Sir. 393; 2 Wits. 22G; 2 El. Rep: 694; 1 Esp. Eig. part 2nd. 193.
    
      Thompson, in reply.
    
    Trespass lies when the injury proceeds directly from the act of the defendant; but the injury here proceeded indirectly from the act of suing out the execution. The act of the Sheriff was the direct occasion of the injury; and even if the defendant had been in company with him, the plaintiff might have waived the trespass and gone for the damages sustained by the expenses to which he was put, and his lying ingaol. The process on the face of it appeared to be regular; the plaintiff had no reason to think it otherwise. A party is not to be charged with a trespass which he did not and could not know that he was committing.
    It is not universally true that where trespass will lie, case will not; as in the action for crim. con. 1 Chit.. PL 38, 104.— On the subject of variance, he further cited; 5 Johns. 84; id» 89; 9 Johns. 82.
   The opinion of the court was delivered by

Mr. Justice Colcock.

In this case the plaintiff’s motion must succeed, on the grounds stated in his brief. It is conceived that there is in fact no variance; the letters “8c Co.” have no signification in legal proceedings. They can amount to no definite description of person; nor indeed are they evidence that there were any other parties to the suit than the one specifically named. ,If indeed there were any such other parties, all the rules of pleading require that they should be named. But if the words are permitted to receive their usual meaning, it would not be fatal; for the action is not founded on the Exon. The complaint is that a trespass has been committed; and if it had been committed at the instance of several, all of whom would have been liable, yet it does not.follow that the injured party must sue them all; each is answerable; and therefore, it is not a místate-snent to say that a trespass was committed by one, when that one was accompanied by others. It is sufficient however, that the letters are considered as unmeaning.

But the defendant contends that there is another ground of non-suit which the court must take notice of; for if the case were sent back, the motion might still be made on that ground; and if supportable, the court should determine it here and put an end to the litigation of the parties. It is that the -action is misconceived; that it should have been trespass and not case; and. this presents to the plaintiff an insurmountable difficulty. I lay it down as a general rule that where the act is illegal, and the injury proceeds directly from the act — trespass is the proper ación; for although there is no actual force, yet in all illegal acts there is an implied force, and all illegal acts are contra pacem. Here the arrest was illegal; the process was irregular and void: the party is therefore entitled to his remedy; against whom shall he proceed.1' not against the officer, because he could not enquire into the regularity of the process. On its face, it appeared to be in usual form: he must then proceed to the source from whence the process proceeded, which is the plaintiff who caused the ca. sa. to issue. It is objected that he was not,personally present; theafect therefore as to him was not immediate; but the answer is, the execution is the instrument which inflicts injury, and the officer is the medium through which it passes. The defendant gave the impetus and he is constructively present. As in the case of the squib, or in the case of man who shoots from a house and hits another at the distance of 200 yards; though not on the spot, he sends a messenger who inflicts the injury, and the act as to him is immediate and direct. 1st Esp. Dig. part 2nd. p 193. And the principle was decided in the case of Kelly and Rembert; Ante 65, and the case of Parsons, vs. Loyd; reported in 2nd Black. 845, but more at large in '3rd. Wilson, 371, is directly in point; in which all the Judge? concur that trespass is the proper action. The motion for non-suit is therefore granted. .  