#### DAVID W. ROGERS, to use, &c. *vs.*HENRY F. PITMAN.

A levy and sale under ail attachment will not authorize an action of trover, simply because the attachment was sued out maliciously and without probable cause. Case is the proper action for the redress of an injury of that kind.

AotioN of TROVER, tried before his Honor Judge SauNdees, at the Spring Term, 1854, of Robeson Superior Court.

This was a case agreed, and the following are the facts as presented in the statement signed by the counsel. The suit was brought, for the conversion of 900 barrels of rosin, which had been the property of the plaintiff, who resided in Robeson county: He had gone to the town of Wilmington for a temporary purpose, and was there arrested and committed to prison on a criminal charge. While the plaintiff was in the *57jail at Wilmington, the defendant, having a just claim against him, sued an attachment, which was levied on the rosin in question, and by virtue of which levy, and the subsequent proceedings, the same was sold and converted to defendant’s use. When the attachment was sued, the defendant had good cause to believe, and did believe, that the plaintiff would give bail in the case upon which he 'was committed, and if he should succeed in so doing, that he would leave the State and *forfeit his*recognizance. The attachment was issued on the day after the defendant heard of the. plaintiff’s arrest and imprisonment. The plaintiff remained in prison for about five weeks, when he gave bail in the case in which he was charged, and also upon divers warrants and writs, which were served on him while in jail. The plaintiff has, since-his discharge, gone to parts unknown, and has forfeited his recognizance. Upon this state of facts, it was agreed that if in the opinion of his Honor, the plaintiff was entitled to recover, judgment should be entered for $320; but if otherwise, he should be nonsuited. Upon consideration of the case, the Court being of opinion with the plaintiff, gave judgment-according to the agreement, from which the defendant appealed to this Court.

*Troy*and Wright, for plaintiff.

Fowle, for the defendant.

PbaesoN, J.

We are not at liberty to decide the question of probable cause upon which the case was put by his Honor, because the plaintiff is met *in limine*by the objection that it cannot bo presented in an action of trover.

The objection is fatal. We' are to assume that the affidavit and bond are in due form, and that the attachment was issued by a judge or justice of the peace within his county : If so, the levy and conversion were authorised by'the attachment, and the plaintiff cannot, in “trover,” (the gist of which action is the wrongful conversion,) go behind the attachment and impeach it in a collateral way, on the ground that it was wrongfully sued out: when that is the gravamen, the attachment *58must be impeached directly by an action on the case for wrongfully suing it out.

The distinction is this: if an attachment, state’s warrant, or other process be *void, trespass vi et armis*or *trover,*is the proper action; because the process did not authorise the act, and may be treated as a nullity: but if the process be in due form, and is issued by one having jurisdiction, it is an authority for doing the act; consequently an action in which such an act is the *gravamen*cannot be maintained. The injury consists in wrongfully suing out the process, in *consequence*whereof the plaintiff sustained damages : for instance, if a justice of the peace in the county of Eobeson should, while in the county of New Hanover, issue a state’s warrant under which the party is arrested, the action is *trespass vi et a/rmis:*because. the warrant is a nullity. But if such justice issues a state’s warrant in the county of Eobeson, for an offense alleged to have been committed in that county, the party arrested cannot maintain *trespass vi et a/mm,*upon the ground that the warrant was sued out maliciously and without probable cause, for the warrant is not a nullity: it authorised the arrest, and the proper action is *“*case ” for wrongfully suing it out.

All the cases for wrongfully suing out a state’s warrant, attachment or other process, are “ actions on the case.” No precedent is found for any other form of action.

The distinction between teoyee and oase is not a mere formal one : nor is it the objection, taken in this case to the form of action, *technical,*as was said in the argument: In *trover*the measure of damages is the value of the property: In *case*the jury are left to give such damages as will compensate for the injury really sustained, and if *malice*is proven, as well as a want of probable cause, the damages may be vindictive. The case agreed sets out that the defendant had a true debt, and “ had reason to believe, and did believe, that the plaintiff would give bail for the criminal charge under which he had been arrested, forfeit his recognizance, and leave the State;” so the idea of malice is out of the question. If the action had been *case,*it would be for the jury to say whether the plain*59tiff bad, *under all the*circumstances, sustained any real loss by reason of the fact that the defendant had sued out an original attachment instead of an ordinary writ, for the purpose of collecting his debt.

Judgment below reversed.

Nonsuit according to the case agreed.

Peb CueiaM.