This is an action of trespass and false imprisonment. The plaintiff proves, that the defendant who had obtained judgment against him in another action in this Court, sued out a writ of capias ad satisfaciendum, and had him arrested, although he had sufficient real estate, to satisfy the judgment. The writ was quashed, on application to the Court. The defendant contends, that the plaintiff has mistaken his -remedy, which was not trespass, but an action on the case for maliciously suing out the writ, knowing that there was property sufficient to satisfy the judgment.
It is enacted by the act of 13th April, 1807, section 5, “ that no writ of capias ad satisfaciendum shall issue in any “ cáse, where the defendant may have real or personal estate “ to satisfy the plaintiff’s demand.” So that the capias ad satisfaciendum issued in this case, against the positive command of the law, and having been set aside by the Court, is no longer a justification to the party by whose order it was issued, although it is, to the officer who executed it. There is a difference between writs which are erroneous, and those which are issued irregularly and by the fault of the party. If an erroneous judgment is entered, it is the error of the Court, and not of the party. Therefore, it is good in law until reversed, and every thing done under it, before reversal, is valid. But if the plaintiff enter a judgment without authority, and issue a capias ad satisfaciendum; on which the defendant is arrested, and then the judgment is set aside for irregularity, it is as if no judgment had been entered, and trespass lies against the plaintiff. This was decided in Phillips v. Biron, 1 Str. 509, which is cited and relied on, by C. J. De Grey, in Barker v. Braham, &c. 3 Wils. 376. So, if the plaintiff has a judgment, and issues an execution, which the judgment does not warrant, it is a nullity,- and he is a trespasser; as where on a judgment against an administrator, a capias ad satisfaciendum was sued out. Barker v. Brakam, &c. 3 Wils. 368. But, it is objected by the defendant, that although it is enacted by an old act of assembly, (20th March, 1720, 1 Sm. L. 165.) that no freeholder shall be arrested by writ of capias ad respondendum; yet there is no instance of an action *142of trespass being brought against a plaintiff, who arrested a 'freeholder against the provision of the act, although arrests of this kind are very frequent. Whether in such case, an action of trespass would lie, is not now the question; it is to be remarked, however, that there are many exceptions, in that act, which take away the privilege of the freeholder, and that the Court to which the capias is returnable, are expressly authorised to set it aside, with 30s. costs to the defendant. So that the practice has been, to obtain relief on motion ; but it has never been decided, whether or not trespass would lie against the' plaintiff. The defendant’s counsel, have likewise mentioned the case of a person being arrested, who is entitled to privilege ; a witness, for example, who is attending Court. If he is arrested, the Court will discharge him on motion, but trespass does not lie. The' reason is, that the issuing of the writ was not irregular, and therefore it was not void it was only the executing it, at an improper time, which was wrong; for the witness might have been lawfully arrested, after he had returned home, his privilege being only temporary. But these cases cannot be compared with' the present, where the issuing of the writ is expressly forbid. The defendant who is imprisoned, suffers manifest wrong, even though the plaintiff in the execution, might not know of his property; and why should he not have redress ? An action on the case, for maliciously suing out the writ, is hard to maintain ; for the plaintiff must prove malice. Besides, when the writ is considered as void, ease is not the proper remedy.
It is said to be the practice, to sue out a fieri facias and capias ad satisfaciendum together, and that it is a very convenient practice. It is so, and I am not for disturbing it. But the party who sues them out, must take care, not to execute the capias ad satisfaciendum until he has ascertained, that the defendant has not property to satisfy the judgment, and this he may do by calling on him, and asking him to shew his property. This act of assembly may sometimes throw difficulties in the way of the plaintiff, but this Court has no right to. repeal, or alter it. I am of opinion, that the capias ad satisfaciendum in this case, was issued improperly, and being sec aside by the Court, is to be considered as a nullity. Therefore, the action of trespass is maintainable.
*143Gibson J.The reason why an action on the case is the proper remedy for a malicious arrest, is, because the process is such as the law allows ; the gravamen is, the abuse of it. The act itself is lawful; the injury consequential. The fifth section of the act of the 13th April, 1807, strictly prohibits the capias ad satisfaciendum, unless where the defendant is destitute of property. A plaintiff may still have recourse to it in the first instance, but at his peril of being a trespasser if the defendant should have property. There may be cases in which the immediate use of this writ may be absolutely necessary to secure a debt. But then there is a plain and safe course to be pursued. Let it be accompanied with a fieri facias, with directions to the officer to execute the capias only in case the defendant shall refuse to shew property. If the person using it will not take this precaution to secure the defendant from an unnecessary arrest, he ought not to complain if the law should treat him as a trespasser. To decide that he should be answerable for a malicious and oppressive use of the writ only in an action' on the case, would' do violence to the letter and spirit of the act. It would be impossible, in many cases, to prove malice, where it did exist, and a party might suffer injury, where, in fact, it did not. X think it clear, therefore, this action of trespass is sustainable.
Duncan J. gave no opinion, not having heard the argument.Judgment affirmed,