#### *Jonathan Cooper vs. William Halbert.*

1. It is a well settled rule that for all acts done under color of legal proceedings, where the court has no jurisdiction, or where the proceeding is irregular, *trespass and not case*is the proper form of action. *See Harp, Rep.*486, *McCool vs. McClwmj.*

2. In an action on the case, where the plaintiff’s declaration complained that the defendant caused an oxecution to be issued and levied upon his land and goods, and the same to be sold by the sheriff, and the money arising from the sale of the same to be applied to the satisfaction of the said execution; and averred that afterwards the judgment upon, which the execution issued “was set aside and rendered of no effect, &c. and afterwards a verdict was rendered in the same case for the defendant (now the plaintiff,) whereby it was established that Are said defendant, (now plaintiff,) was not in arrears, or in anywise indebted to the said defendant,” by means whereof the said plaintiff was greatly injured, &c. It was *held*that the declaration did not contain such' a cause of action, as that the defect could be cured by the verdict of the jury, and a motion in arrest of judgment was sustained.

3. Afterverdict, the court will by intendment suppose everything to have been proved which the allegations of the record require to be proved; but where every thing which constitutes the gist of the action on the case is omitted, the judgment will be arrested.

*Before*Earle, J., *at*Laurens, *Spring*Term, 1842.

This was a special action on the case, for causing an execution to be issued against the plaintiff, and his land and goods to be sold by the sheriff, upon a judgment which was afterwards set aside for irregularity; the suit having been prosecuted by the defendant for a demand which was wholly unfounded.

The facts will fully appear by the report of the presiding Judge.

“ The defendant was the administrator of an estate of which the plaintiff was one of the distributees. On making the plaintiff a payment, in 1831 or 1832, defendant took his receipt for the sum paid, with a stipulation annexed, that if, on final settlement, he should be found to have received more than his share, he would refund. In 1832, there was some settlement before the Ordinary, and the defendant alleged the plaintiff had received too much. At Fall Term, 1835, he brought his action on the accountable receipt; and at April Term, 1836, he obtained judgment, the plaintiff having entered no appearance, and made • no defence. The case was ordered to be referred to the clerk, and on his assessment, judgment was signed and execution issued, under which, in January, 1837, the plaintiff’s land, which he had previously sold for 400 dollars, *420was sold by the sheriff for 97 dollars; a wagon, worth 60 dollars, was sold for 51; and a horse and saddle, worth 60 dollars, were sold for 45 dollars. The person who had purchased the plaintiff’s land from him before, attended the sheriff’s sale, and became again the purchaser, at the sum above mentioned.

“At April Term, 1839, the judgment was set aside, and the plaintiff obtained leave to appear and plead. Thereupon, issue was joined, and at November Term, 1839, there was a verdict for the defendant, now plaintiff. And at March Term, 1840, he brought this action.

“ I overruled a motion for nonsuit, on the ground that the action should have been trespass, and not case, and sent the case to the jury, advising them to find for the plaintiff, the actual damage, at least, with as much more as in their judgment the motives and conduct of the defendant warranted. They found for the plaintiff over three hundred dollars, intended, I suppose, to cover the actual damage, with interest, cost, *&c.*There was no proof whether the purchaser of the land had or had not paid the amount of the purchase money to the plaintiff. If he had not, he was liable for it, and entitled only to the abatement of the sum paid to the sheriff, which was the actual damage on that head. I instructed the jury, that the execution was a protection to the sheriff, in the sale of the plaintiff’s property, without any opinion whether the sale was valid or not. Both parties appeal, on the grounds annexed.”

The defendant appealed and moved in arrest of judgment, for a nonsuit and a' new trial, on the following grounds, viz.

*In arrest of judgment.*

1st. Because the declaration does not allege the *scienter*against the defendant.

2d. Because the declaration does not charge that the acts complained of against defendant were done wilfully, maliciously, and well knowing that the same were unlawful and void, which is necessary in this form of action.

*For a nonsuit.*

Because the action should have been trespass, and no;t *421case, as the judgment under which the property was sold, was null and void, *ab initio.*

*For a neto trial.*

1st. Because the court charged the jury that the sale of the land and other property under execution of the defendant, against the plaintiff, referred to in the plaintiff’s declaration, was legal, and vested a right in the purchaser.

2d. Because the defendant was not liable in this form of action, for the illegal acts of his counsel and other officers of court, unless he acted with knowledge. The court held, that he was liable for the acts of his counsel.

3d. Because the verdict is contrary to law and evidence.

*Plaintiff’s Ground of Appeal.*

That his Honor, the presiding Judge, erred in charging that the plaintiff had not sustained actual damages, on account of the land, above the sum for which it sold by the sheriff, when it was worth much more.

A. W. Thompson, for the motion,

cited, on the grounds in arrest of judgment, 1 Chitty on Plead. 320, Sec. 4. There must be a *scienter.*The declaration must contain an allegation that the act complained of was done maliciously. Referred here to 2 Wilson, 302, 307; 1 Chitty Plead. 133, letter U; *lb.*388, letter T. It must be alleged that the party knew the court had no jurisdiction. 2 Leigh N. Prius, 1402, 1404; 2 Chitty Plead. 242.

On the ground for nonsuit, cited 6 J. L. Diet. 363, letter D; 1 Brev. 120, sec. 22; 1 Cowan, 711, 734; 1 Chitty Plead. 132, letter S ; 3 Starkie, titl. Trespass; 1 Bail. 441, *McHugh vs. Pundt;*Harp. L. Rep. 427, *McCool vs.*McClu■ *ney; Rembert vs.*Kelly, *lb.*65.

Bobo, contra,

relied on 7 Wend. 301; 1 N. *&*McC. 408; *lb.*224 ; 8 Johns. Rep.-; Bacon Abr.-; 5 B. *&*P. 446 ; Day’s Ev. in note.

*Curia, per*

Earle, J.

The plaintiff, in his declaration, complains that the defendant caused an execution to be issued and levied upon his land and goods, and the same to be sold by the sheriff, and the money arising from the *422sale of the same tobe applied to the satisfaction of the said execution; and avers that afterwards the judgment in favor of the defendant, upon which the said execution issued “ was set aside and rendered of no effect, <fec. and after-wards a verdict was rendered in the same case for the defendant, whereby it was established that the said Jonathan was not in arrears or in any wise indebted to the said William,” by means whereof the said Jonathan is greatly injured, *&c.*

Nothing is'better established than the general rule, that for all acts done under color of legal proceedings, where the court has no jurisdiction, or where the proceeding is irregular, trespass is the proper form of action. 1 Ch. Pl. 184. And where a judgment has been set aside for irregularity, that is the appropriate remedy for any act done under it. Ibid; 1 Str. 509. This was expressly ruled here in *McCool vs.*McLooney, *State*Rep. 486, where it was held that case would not lie. And this is decisive of the present action, unless it can be supported on another ground, suggested on the circuit, and which induced me to overrule the motion for a nonsuit; it is that the proceeding was wholly unfounded as well as irregular, and was adopted by the defendant with an express malicious intent. Such was the case in *Goslin vs. Wilcock,*2 Wils. 302, for maliciously causing the plaintiff to be arrested, in an inferior court; which had no jurisdiction, without any probable cause, the defendant not having at the time of such arrest and imprisonment any just or probable cause of action against the plaintiff. In that case no doubt trespass would lie for the arrest in a court having no jurisdiction; and as the proceeding was adopted with an express malicious intent, in a court which the party knew had no jurisdiction, an action on the case would also lie, as the court held; both malice and the want of probable cause being alleged and prored, as they were essential to the action. It is true that the allegation that the defendant knew the court had no jurisdiction was not contained in the declaration ; and the court held it cured by the verdict and refused to arrest the judgment. In the case under consideration, the declaration was not referred to on the circuit, else I should háve been constrained to nonsuit the plaintiff for the want of a *423sufficient cause of action in the form adopted. It is alleged that the verdict for the defendant, now plaintiff, on the trial of the former issue after the judgment was set aside, established that he was “ not in arrears nor in any wise indebted” to the defendant; but there is no averment that the suit was brought, or that the execution was sued out, “ with malice, and without probable cause,” both of which are essential to this form of action, and which must be alleged and proved, as the court said in *Goslin vs. Wilcock.*But inasmuch as the plaintiff was not arrested and imprisoned, nor held to bail, no action lies against the defendant for a mere malicious suit, however groundless. Bul. N. P. 1 Salk. 14. No form of declaring, therefore, would have enabled the plaintiff to recover for having instituted and carried on a groundless action, although with malice. Could the defendant then have been made liable in an action on the case, for merely suing out an execution upon a judgment which had been rendered in his favor and was still subsisting, although irregular'? No doubt if a plaintiff sues out an execution upon a judgment which he knows to have been fully paid off and satisfied, or a second execution upon a former under the same circumstances, he would be liable to an action, with the proper averments that it was done with malice and intent to harrass, injure and oppress. But here there is no such case. The judgment, at the time of execution sued out and levied, was still of force; the defendant then, now plaintiff', had not appeared to defend, and there was an order for judgmeut by default, and the verdict which was finally rendered for him, after the judgment was set aside, is by no means conclusive that the defendant may not have had a probable cause of action, or may not have honestly believed that he had, both when he brought the action, and when he sued out the execution, which would bave exempted him from liability in an action for a malicious arrest, if the plaintiff had been held to bail. *Gibson vs. Charters,*2 B. & P. 129; 3 Esp. R. 34; 1 Camp. 295. If he was not liable for bringing the suit, however groundless, then he cannot be liable for suing out the execution, so long as the judgment was of force. Had it not been set aside, he could never have been made liable in any form, either in case, or trespass, or assumpsit, to re*424cover back the money. *Marriott vs.*Hampton, D. *&*E. As it was set aside for irregularity, it was the same as if it had never been rendered and he became a trespasser. To make him liable in case also, and thus accumulate the plaintiff's remedies, would seem to be unnecessary for the ends of justice. I will not say that it cannot be done with suitable averments and adequate proof. In such case, it would, at all events, be essential to aver and prove not only that the proceeding was malicious and without probable cause, but t[iat the irregularity which avoided the judgment was in some way the act of the defendant or his attorney, and not the act of the court, as it would seem to be, procured by falsehood or fraud with intent to injure the plaintiff. There is not in the declaration any such averment of malice or the want of probable cause, or any allegation that the defendant knew of the irregularity, nor any thing from which these facts can be fairly inferred. The simple averment is that the defendant caused an execution to be levied, and the judgment was afterwards set aside. This presents a casein which trespass alone would lie. After verdict the court will, by intendment, suppose every thing to have been proved which the allegations of the record require to be proved; but nothing, more. And where the declaration contains no cause of action, the defect is not aided by a verdict. Here every thing which constitutes Ihe gist of the action on the case is omitted, and the judgment must be arrested. The motion is granted.

Richardson, O'Neall, Evans and Butler, JJ., concurred.