Turner v. Walker

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 *385due 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 *386the 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 *387professional 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 *388might 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, *389that 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.