
    
      Edward Fripp vs. Edmund Martin.
    
    1. A held a note on B, which, not being paid when due, was placed in the hands of his attornies for collection, who issued upon it. In a few days after the note had been put in suit, B called on A and paid off his note in full. B, supposing tire case ended, entered no appearance, and A neglected to inform his attornies of the fact of payment; or if he did inform them, it was not until after the declaration was filed. The attornies of A were unable to attend court, and an attorney who represented them referred .the case to the clerk, who assessed the damages. Judgment was signed, and an execution issued, on which B’s land and negroes were seized in execution, and advertised for sale. These were set aside, but after the plaintiff in this action had issued his writ. Under this state of facts, case, and not trespass, was. the proper remedy.
    2. It must be an extraordinary case which will justify the court in disturbing the verdict of a jury, on the ground of excessive damages. '
    3. Defendant's counsel argued that it was a mere omission on his (defendant’s) part, in not withdrawing the writ after payment of the money, and that without malice in having done so, the action could not be maintained; that there was no proof of malice. It was replied, that plaintiff had counted on a promise of defendant to withdraw the suit; that defendant’s letter was a virtual admisson of such fact; and that this promise not having been complied with, justified the finding, even without proof of malice. Under these circumstances, the ground thus argued not being made — the record not having been brought up, and the transcript, though imperfect, sustaining the plaintiff’s statement— the court refused to notice the ground taken in argument, and confined the decision to the points made in the notice of appeal.
    
      Before O’Neall, J., Beaufort, Spring Term, 1840.
    This was an action of trespass on the case, brought against the defendant, under the following circumstances :
    The plaintiff was indebted to the defendant in a note for the sum of $4,000 and upwards, due 1st January, 1839. The payment was not made when the note was due; the defendant placed a copy of it in the hands of Messrs. Davant and Martin for collection; they issued upon it to Barnwell, where the defendant resided. In a few days after the note had been put in suit, the plaintiff called upon the defendant, paid the whole sum due, and took up his note. The plaintiff, supposing that the suit was at an end, entered no appearance; the defendant neglected to inform his attornies of the fact of payment, or if he informed them, they were not advised of it until after the declaration was filed. Both of them were prevented, by sickness in their families, from attending Barnwell court. Another attorney represented them, and by him the case was referred to the clerk, who assessed the damages of the plaintiff, on the copy note filed with the declaration. Judgment was signed 19th December, 1839, and execution issued, and under it the defendant’s land and negroes were seized in execution, and advertised for sale. At Spring Term, 1840, for Barnwell district, the judgment was ordered to be set aside, but this was after the plaintiff had issued his writ in this case. The plaintiff paid an attorney $20 for obtaining such order. The plaintiff, in consequence of the levy on his land and negroes, under this execution, was compelled to ride from his residence to Barnwell Court House, 18 or 20 miles, several times. On the 27th of February, 1840, as soon as the defendant was advised of the levy on the plaintiff’s property, he wrote a letter to him, acknowledging the satisfaction, and his regret for the mistake which had occurred. The levy, it appeared, did not injure the plaintiff’s credit, or compel him to sell any of his property.
    The defendant, at the close of the plaintiff’s case, moved for a non-suit, on the ground that the action should have been trespass, and not case. The presiding Judge did not think so, and overruled the motion.
    The case was submitted to the jury, who found a verdict for the plaintiff, for the sum of $330, which, in the opinion of the court, was more than the proof demanded. The defendant appealed, on the annexed grounds.
    1. For a non-suit, because the action should have been trespass, and not case.
    2. For a new trial, because the damages were excessive; the counsel for the plaintiff at the trial, from the failure of proof, having abandoned any claim for special damages.
    Martin, for the motion. Treville, contra.
   Ouria, per

O’Neall, J.

In this case, the ground for non-suit, that the action should have been trespass, and not case, cannot avail the defendant. Whatever injury the plaintiff here (the defendant in execution,) sustained, was under a subsisting judgment of the court of common pleas for Barnwell district, in a matter of which that court had jurisdiction, and by a regular execution issued on that judgment. Those legal proceedings were in full force when this action was commenced. Subsequent to its commencement, they were set aside; but that could not affect the remedy which the plaintiff had adopted, and was pursuing.

The rule is very well stated in 1 Chitty PL 136, to be, “whenever an injury to a person is effected by regular process of a court of competent jurisdiction, case is the proper remedy; trespass is not sustainable.” This, which is the substance of all the cases on the subject, shews, very clearly, that the plaintiff chose the appropriate remedy, when he sued out his writ in case. The only other ground made in the case is, that the damages found were excessive. It is true, I thought the sum of $330, found as damages, more than enough to compensáte the plaintiff for all the injury which he had sustained. But damages are so much in the discretion of the jury, that it must be a most extraordinary case which would justify us in disturbing the verdict. In this case, the jury, who knew the parties and witnesses better than I did, were of course better qualified to judge of the extent of the injury.

Another ground argued by the defendant’s counsel, is, that this, at most, was a mere omission on the part of the defendant, and that without malice, on his part, in not withdrawing the writ after payment of the money, this action cannot be maintained; and that there was no evidence whatever of malice. To this it has been replied, that the plaintiff counted on a promise of the defendant to withdraw the suit, and that the defendant’s letter is a virtual admission of such fact, and that this promise not being complied with, justified the finding, even without proof of malice. Under such circumstances — where no ground such as that argued has been made, when the record is not brought up, and the transcript, imperfect as it is, which we have, sustains the plaintiff’s statement — we are constrained not to notice the ground taken in argument, and to confine our decision to the points made by the notice of appeal. The motions are dismissed.

Butler and Wardlaw, JJ, concurred.

Richardson, J. absent at the argument.  