By the Court,
Sutherland, J.
The decisions of the circuit judge, upon all the points raised by the defendant upon the trial, appear to me to have been correct.
The precise day of the levy and sale was in no respect material. The execution proved by the deputy sheriff corresponded with that described in the declaration as to the teste, the return, the amount of the judgment, and the sum directed to be levied; and he also proved that the sale of the plaintiff’s property, of which he complains, was made by virtue of that execution. It is not perceived how the precise day on which the sale took place could in any manner become material; and being laid under a videlicit if it was not material, the plaintiff was not bound to prove it as laid. It is impossible that the defendant could have been misled by" the variance, or that his defence was in any respect affected by it; it was a collateral fact altogether, and not constituting in any sense the gist or substance of the plaintiff’s cause of action. The sale might have been material, but the precise time when, certainly could not have been under the circumstances of this case.
The fourth count having been expressly abandoned by the plaintiff, none of its averments or admissions could be used as evidence against him. As a general rule, each count is considered ' as containing a distinct and independent cause of action ; and if one of several counts is decided to be bad upon demurrer, or is voluntarily abandoned, and a nolle prosequi Is entered upon it, it is to be considered as struck out of the declaration, except so far as it is referred- to by the other counts for- a particular date or fact, and in that manner and to that [305]*305extent becomes material, and is considered as incorporated in them. Such was not the fact in this case.
Although the defendant had assigned the judgment before the execution in question was issued, he was responsible for what was done under it. He was not merely a nominal party to the record ; the execution purported to have been issued by him in proper person, and the presumption is, was in fact so issued, and in June, 1828, four months after the execution was issued, the defendant wrote to Hees, his assignee» that a motion which had been made to set aside the execution, had been denied, and directing him to have the same collected without delay—he directed and controlled the whole operation, and was probably the party beneficially interested in the result either directly or indirectly. There are very few exceptions to the rule that the party on the record is responsible for whatever is done in his name, although some other person may be beneficially interested in the subject matter, and may also be liable on that ground. This disposes of all the points which were specially raised upon the trial, and it may be questionable whether the defendant is now at liberty to raise any other. He expressly excepted to the various decisions of the judge, and to his charge to the jury ; and although a case was finally made by a stipulation between the parties, (instead of a bill of exceptions) with leave to either party to turn it into a special verdict or bill of exceptions, it is not probable that the plaintiff’s counsel intended by that stipulation to give to his adversary any greater privileges than he would have had under a regular bill of exceptions. I am, however, inclined to think that we must consider it as a case made in the ordinary way, and give to the defendant the same latitude and range of objection which he would be entitled to in ordinary cases. 4 Wendell, 471.
He contends, then, that an action on the case will not lie for an injury of this description, unless actual malice is alleged and proved. The declaration in this case, it will be recollected, alleges that the j udgment against the plaintiff had been paid, contented and satisfied by the said plaintiff to the said defend[306]*306ant, (before the committing of the grievances complained of) and that there was no sum of money due or payable upon said judgment, &c.; yet the said defendant well knowing the premises, hut contriving, andwrongfully and unjustly intendingto injure and aggrieve the said plaintiff in that behalf, wrongfully and unjustly caused or procured the execution to be issued, &c. The jury have found these allegations to be true: that the judgment was paid and satisfied, and that the defendant with the full knowledge of that fact, and with the intent to injure the plamtifij issued the execution.
The evidence satisfactorily shows that the judgment was paid to Feeter himself, and that he acknowledged it was paid. He expressly agreed to take lumber for the balance due on the judgment; it was delivered to him, and on being inquired of by the agent of the plaintiff if it was sufficient to satisfy the judgment, he replied that it was sufficient, and the case states that the proof as to the value of the lumber showed also that it was sufficient. The counsel for the defendant indulges in a criticism upon this part of the case, and says that this does not show payment of the judgment, but merely an agreement on the part of Feeter to apply the lumber in payment, and that the action should have been assumpsit for the breach of this agreement, instead of case for the issuing of the execution. The lumber having been delivered by the plaintiff and accepted by the defendant expressly on account of this judgment was appropriated to it in judgment of law, without any other act of the parties. What other act could have been done ? If a receipt had been given, acknowledging that the lumber had been accepted in satisfaction of the judgment, it would only have been another item or species of evidence of the same fact; and a payment or appropriation of money may be as satisfactorily shown by the acts or admissions of parties as by a receipt.
If the defendant, with a full knowledge that this judgment was paid and satisfied, caused an execution to be sued out upon it, whereby the plaintiff’s property was sold and sacrificed I apprehend he is responsible in this form of action for the injury. The cases cited and relied upon by the defendant’s counsel [307]*307are all distinguishable from this, and were decided upon principles which have no application here. Bennus v. Guyldley, Cro. Jac. 505, was an action upon the case, in which the plaintiff declared that whereas the defendant recovered against him £7 10. for costs and damages, and upon that judgment the plaintiff paid him £7, and the defendant released to him the judgment, and by his deed covenanted that he would withdraw all process of execution for the debt; that the defendant intending to vex him against his release, and against his promise in said writing, sued out an execution against him, on which he was arrested and imprisoned. To this declaration it was objected, among other things, that there being an express covenant under seal, on the part of the defendant, to withdraw or not to issue an execution, the plaintiff’s remedy was upon that covenant, and that assumpsit would not lie; and of that opinion was the whole court. This simply decides that covenant, and not assumpsit, must be brought, where the undertaking or promise is by deed. In that case, too, the judgment was not satisfied, except by the operation of the release and covenant, as only £7 were paid, when the judgment was for £7 10.; it bears no analogy in any respect to this case. In Scheibel v. Fairbrain and another, 1 Bos.
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By the Court,
Sutherland, J.
The decisions of the circuit judge, upon all the points raised by the defendant upon the trial, appear to me to have been correct.
The precise day of the levy and sale was in no respect material. The execution proved by the deputy sheriff corresponded with that described in the declaration as to the teste, the return, the amount of the judgment, and the sum directed to be levied; and he also proved that the sale of the plaintiff’s property, of which he complains, was made by virtue of that execution. It is not perceived how the precise day on which the sale took place could in any manner become material; and being laid under a videlicit if it was not material, the plaintiff was not bound to prove it as laid. It is impossible that the defendant could have been misled by" the variance, or that his defence was in any respect affected by it; it was a collateral fact altogether, and not constituting in any sense the gist or substance of the plaintiff’s cause of action. The sale might have been material, but the precise time when, certainly could not have been under the circumstances of this case.
The fourth count having been expressly abandoned by the plaintiff, none of its averments or admissions could be used as evidence against him. As a general rule, each count is considered ' as containing a distinct and independent cause of action ; and if one of several counts is decided to be bad upon demurrer, or is voluntarily abandoned, and a nolle prosequi Is entered upon it, it is to be considered as struck out of the declaration, except so far as it is referred- to by the other counts for- a particular date or fact, and in that manner and to that [305]*305extent becomes material, and is considered as incorporated in them. Such was not the fact in this case.
Although the defendant had assigned the judgment before the execution in question was issued, he was responsible for what was done under it. He was not merely a nominal party to the record ; the execution purported to have been issued by him in proper person, and the presumption is, was in fact so issued, and in June, 1828, four months after the execution was issued, the defendant wrote to Hees, his assignee» that a motion which had been made to set aside the execution, had been denied, and directing him to have the same collected without delay—he directed and controlled the whole operation, and was probably the party beneficially interested in the result either directly or indirectly. There are very few exceptions to the rule that the party on the record is responsible for whatever is done in his name, although some other person may be beneficially interested in the subject matter, and may also be liable on that ground. This disposes of all the points which were specially raised upon the trial, and it may be questionable whether the defendant is now at liberty to raise any other. He expressly excepted to the various decisions of the judge, and to his charge to the jury ; and although a case was finally made by a stipulation between the parties, (instead of a bill of exceptions) with leave to either party to turn it into a special verdict or bill of exceptions, it is not probable that the plaintiff’s counsel intended by that stipulation to give to his adversary any greater privileges than he would have had under a regular bill of exceptions. I am, however, inclined to think that we must consider it as a case made in the ordinary way, and give to the defendant the same latitude and range of objection which he would be entitled to in ordinary cases. 4 Wendell, 471.
He contends, then, that an action on the case will not lie for an injury of this description, unless actual malice is alleged and proved. The declaration in this case, it will be recollected, alleges that the j udgment against the plaintiff had been paid, contented and satisfied by the said plaintiff to the said defend[306]*306ant, (before the committing of the grievances complained of) and that there was no sum of money due or payable upon said judgment, &c.; yet the said defendant well knowing the premises, hut contriving, andwrongfully and unjustly intendingto injure and aggrieve the said plaintiff in that behalf, wrongfully and unjustly caused or procured the execution to be issued, &c. The jury have found these allegations to be true: that the judgment was paid and satisfied, and that the defendant with the full knowledge of that fact, and with the intent to injure the plamtifij issued the execution.
The evidence satisfactorily shows that the judgment was paid to Feeter himself, and that he acknowledged it was paid. He expressly agreed to take lumber for the balance due on the judgment; it was delivered to him, and on being inquired of by the agent of the plaintiff if it was sufficient to satisfy the judgment, he replied that it was sufficient, and the case states that the proof as to the value of the lumber showed also that it was sufficient. The counsel for the defendant indulges in a criticism upon this part of the case, and says that this does not show payment of the judgment, but merely an agreement on the part of Feeter to apply the lumber in payment, and that the action should have been assumpsit for the breach of this agreement, instead of case for the issuing of the execution. The lumber having been delivered by the plaintiff and accepted by the defendant expressly on account of this judgment was appropriated to it in judgment of law, without any other act of the parties. What other act could have been done ? If a receipt had been given, acknowledging that the lumber had been accepted in satisfaction of the judgment, it would only have been another item or species of evidence of the same fact; and a payment or appropriation of money may be as satisfactorily shown by the acts or admissions of parties as by a receipt.
If the defendant, with a full knowledge that this judgment was paid and satisfied, caused an execution to be sued out upon it, whereby the plaintiff’s property was sold and sacrificed I apprehend he is responsible in this form of action for the injury. The cases cited and relied upon by the defendant’s counsel [307]*307are all distinguishable from this, and were decided upon principles which have no application here. Bennus v. Guyldley, Cro. Jac. 505, was an action upon the case, in which the plaintiff declared that whereas the defendant recovered against him £7 10. for costs and damages, and upon that judgment the plaintiff paid him £7, and the defendant released to him the judgment, and by his deed covenanted that he would withdraw all process of execution for the debt; that the defendant intending to vex him against his release, and against his promise in said writing, sued out an execution against him, on which he was arrested and imprisoned. To this declaration it was objected, among other things, that there being an express covenant under seal, on the part of the defendant, to withdraw or not to issue an execution, the plaintiff’s remedy was upon that covenant, and that assumpsit would not lie; and of that opinion was the whole court. This simply decides that covenant, and not assumpsit, must be brought, where the undertaking or promise is by deed. In that case, too, the judgment was not satisfied, except by the operation of the release and covenant, as only £7 were paid, when the judgment was for £7 10.; it bears no analogy in any respect to this case. In Scheibel v. Fairbrain and another, 1 Bos. & Pull. 388, it was held that an action on the case would not lie against the defendants for neglecting to countermand an execution which they had issued against the plaintiff for a debt due to them, and which debt the plaintiff paid to the defendants after the writ was issued. The action was founded upon the assumption that it was the duty of the defendants immediately upon receiving the debt to have countermanded the writ. The court held that there was no such duty imposed upon the defendants; that they were not bound to have accepted the tender, and that it was the plaintiff’s business to haye seen that the execution of the writ was stopped; that it was an action for a mere non-feasance, where there was no duty imposed upon the party to do any thing, and that such an action could not be sustained.
Gibson v. Chaters, 2 Bos. & Pull. 129, was an action on the -case for maliciously, and without any probable cause, arrest[308]*308ing the plaintiff and holding him to bail. Lord Eldon, Ch. J. before whom the cause was tried, nonsuited the plaintiff on the ground that all the circumstances of the case showed that the defendant acted in good faith, and without any malice. The debt was paid by the plaintiff to the defendant’s agent without his knowledge, after the 'affidavit to hold to bail had been made. The gist of such an action is the malice and want of probable cause ; but that was a clear case of perfect .good faith on the part of the defendant, and of probable cause, according to his knowledge of the facts, for the arrest. Jackson v. Burleigh, 3 Esp. R. 34, establishes the same principle, that an action for maliciously arresting a party, and holding him to bail, cannot be sustained if the party acted in good faith, honestly, though erroneously believing more than £10 to be due, and under that impression causing him to be held to bail. Lord Kenyon held that an honest belief under such circumstance was probable cause, and that the action could not be sustained, and accordingly nonsuited the plaintiff. Vide also 1 Campb. 295. Actions for malicious prosecutions depend upon principles peculiar in some respects to themselves; the plaintiff is bound to establish the want of probable cause, in violation of the general rule, that no party shall be called upon to prove a negative. 4 Wendell, 424, and cases there referred to.
The case of Agry v. Young, 11 Mass. R. 220, merely goes to the distinction between trespass and trespass on the case, and has no application here. The case of Vail v. Lewis & Livingston, 4 Johns. R. 450, is entirely compatible, with the principle of this action.
1 find no authority for saying that in a case like this, express malice must be alleged in terms and explicitly proved. If the declaration charges the act to have been wrongfully and wilfully done, and the evidence supports the allegation, it is sufficient.
The receipt by the plaintiff of the surplus produced by the sale, over and above the amount directed to be levied on the execution, was not an admission of the legality of the sale, so as to conclude him from subsequently questioning it; whatever he did receive was a proper subject of consideration for [309]*309the jury in determining the loss or damage that he had sustained.
We cannot interfere with the verdict on the ground that the damages are excessive.
Motion for new trial denied.