Tatum v. Morris

PARSONS, J. The first and third counts are so nearly alike, that our opinion upon the first will be decisive of the third. It is stated in the first, that one Shelton, by his deed, conveyed the property to the plaintiffs, in trust for the payment of his debts; that .the defendant afterwards caused the sheriff to levy an execution, which was against the estate of Shelton, upon the slaves that were conveyed, and to take them away. It is fully alleged that this was done maliciously, for the purpose of causing it to be suspected and believed, that the plaintiffs had [306] no title to the real and personal estate conveyed by tbe deed, and of hindering a sale thereof, which the plaintiffs were about to make, and otherwise would have made, and that a sale was, at the time, prevented; and consequential damage in a sale of the land and slaves that was finally made is alleged. The declaration is in case, and the question is, whether trespass was not the only proper action 1 The levy and seizure of the slaves was a wilful act, and the force was immediate. It is very unlike the cases, in some of which it has been held, that the injured party may bring either trespass or case for an injury caused by negligence in navigating ships or driving carriages, for here the force was immediate and the act was wilful; and it is distinguishable from the case of an illegal distress, since in this case there was not the semblance of authority for taking the property of the plaintiffs under an execution against another person. Between these parties the execution was a nullity, and could not be pleaded as a justification, as it contained no command to take the property of the plaintiffs. If so pleaded, with an averment that the property in truth belonged to Shelton, the plea, I think, would be demurra-ble at the common law, as amounting to the general issue, though good, perhaps, under our statutes, which take away special demurrers. There may be cases, as stated in some of the books, where the injured party has an election to bring trespass or case, for damages that are immediate and consequential. Such cases must rest upon their own circumstances. But in this case, the plaintiffs certainly could have recovered all legal damages by declaring in trespass with the per quod. “ When process has been misapplied, as when A, or his property, has been taken upon process against B, trespass is, in general, the only remedy.” — 1 Chit. PL 185. 2. The second count is certainly defective. It contains no averment that the suit or proceeding in which the defendant procured the injunction, is ended or determined, nor that the injunction has been disposed of. Previous to this, an action for maliciously procuring the injunction is premature. Let the judgment be affirmed.