Van Ness, J.
delivered the opinion of the court. Whether the defendants are liable at all for the injury of which the plaintiff complains, will depend upon a more perfect disclosure of facts hereafter. We are satisfied [456]*456that upon the case as stated in this declaration, they are not liable, in this form of action.
If the levy and sale by the sheriff of West-Chester were made after the execution in his hands was returnable, he acted without authority; for after the return day of a fi. fa. the power of the sheriff under it is gone ; and the plaintiff is put to a new execution, if he wishes to pursue the defendant’s property. (Devoe v. Elliot, 2 Caines, 243.) The latest period which the law allows for the service of an execution, is the day when it is returnable. This position, the plaintiff’s counsel seemed to admit. To avert the consequences resulting from it, .they contended, that it is not positively averred, that the-' levy and sale were made after the return day of the execution. This leads to a consideration of the point, whether the day on which the levy is stated to have been made in this case, is material or not, or, in other words, whether the plaintiff, upon a trial, may be permitted to prove that the levy was made on any other day than that laid in the declaration.
I consider the day, here, to be material, and, consequently, that the plaintiff would not, on the trial, be permitted to prove the service of the execution on any other day, than that stated, in the declaration. If we are correct in this, it will be found, either that the defendants are not liable at all, or, if liable, that this is not the proper form of action. The plaintiff is bound to show, not only that he has sustained an injury, for which the law gives him right of action, but also that he has such right, in the particular forin of action, to which he has resorted for a satisfaction. The gravamen, in the first count, is, that the defendants maliciously caused and procured the sheriff of West-Chester, to execute the test.fi.fa. in his hands, after the payment of the judgment to the sheriff of Nexv-Tork, on the execution, previously de-, livered to. him. And it is averred, that the sheriff o( [457]*457West-Chester, made his levy on the 2d day of December., (laid under a videlicet,) which was after the execution was returnable, and that he sold, on the tenth of the same month, which is also laid under a videlicet. If the levy and sale did, in fact, take place on those days, the sheriff was wholly unauthorised; and if the defendants caused and procured the proceedings, nothing can be clearer, than that they are all trespassers ; because, the taking the plaintiff’s property, in that case, was unlawful, and the injury resulting therefrom was direct and immediate, and not consequential. It is in this point of view, that we deem the day here to be material.
, The general rule of law on this subject, is laid down with great precision and accuracy, by Sir William Blackstone•, (arguendo,) in the case of the Bishop of Lincoln and another v. Wolfreston. (1 Bl. Rep. 495.) “ The true distinction,” he says, “ is, that where the time at which a fact happened is immaterial, and it might as well have happened at another day, there, if alleged under a scilicet, it is absolutely nugatory, and is, therefore, not traversable ; and. if it be repugnant to the premises, it shall not vitiate the plea, but the scilicet itself shall be rejected as superfluous and void. But where the precise time is the very point and gist of the cause, there the time alleged by a scilicet is conclusive and traversable j and it shall be intended to be the true time, and no other,” &c.
It was said, on the argument, that as the day in this case was laid under a scilicet, the plaintiff was not bound to conform his proof to the particular day stated. This is true only when the day is immaterial; the well settled rule being, that if the day laid be material, it must be proved, notwithstanding it be laid under a scilicet.
It is of importance, that the boundaries between the different actions should be preserved, particularly be[458]*458tween the actions of trespass, and case. In the case of Sevignac v. Roome, (6 Term Rep., 125.) the judgment was arrested, after a trial and verdict for the plaintiff, because it appeared from the declaration, that the action ought to have been trespass, and not case. The case of Bennus v. Guyldley, (Cro. Jac. 505, 506.) is so exactly like the present, that I think it proper to state the substance of it. It was an action on the case.- The declaration stated, that the defendant recovered a judgment against the plaintiff, part of which was afterwards paid, and the residue released; and the defendant covenanted that he would withdraw all process of execution for the same. The declaration farther stated, that the defendant intending to vex him, &c. served a ca. sa. returnable 3 Trin. following, which he delivered to the sheriff to execute, who, by force thereof, afterwards, to wit, on the 20th day of July, &c. arrested and detained him, until he paid the amount of the judgment. The defendant pleaded that the sheriff did not arrest by his appointment; to which plea, being vitious, the plaintiff demurred. At the argument, the defendant did not maintain the plea, but took several exceptions to the declaration, one of which was, that it was shown, that the sheriff made the arrest on the 20th July, which was long after the return of the writ; so it was done without warrant, and is false imprisonment, in the sheriff who took him by colour of that process, and for that cause principally, the declaration was held to be ill by all the court.
The principles upon which this case was decided, have been repeatedly recognised since. (Green v. Rennet, 1 Term Rep. 656. Pope v. Foster, 4 Term Rep. 590.) We • are of opinion, therefore, that the plaintiff cannot recover in this form of action, for the injury stated in the first count.
[459]*459The second and third counts state the issuing oí the two executions, with some immaterial variations, as in the first count; and that the amount of the judgment was paid by the plaintiff to Livingston, one of the defendants. The ground of complaint is, that after the payment of the judgment, the defendants were bound to have countermanded the service of the execution, delivered to the sheriff of West-Chester, so as to have prevented the plaintiff’s goods from being levied on and sold, &c.' and that the defendants, maliciously intending to injure the plaintiff, did not countermand, and that the sheriff of West-Chester, did, afterwards, and before the “ return of the execution, to wit, on the 2d Decernher” seize, and, afterwards, sell the plaintiff’s goods.
If it be true, that after the return of the writ, its force was spent, then, the defendants certainly had no reason to apprehend that the sheriff would proceed upon it, and they were under no legal or moral obligation to countermand it. It being unlawful for the sheriff to proceed, they had a right to presume that he would not proceed. The sheriff acted without any directions from them, and it would, therefore, be unjust to hold them responsible for his misconduct.
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Van Ness, J.
delivered the opinion of the court. Whether the defendants are liable at all for the injury of which the plaintiff complains, will depend upon a more perfect disclosure of facts hereafter. We are satisfied [456]*456that upon the case as stated in this declaration, they are not liable, in this form of action.
If the levy and sale by the sheriff of West-Chester were made after the execution in his hands was returnable, he acted without authority; for after the return day of a fi. fa. the power of the sheriff under it is gone ; and the plaintiff is put to a new execution, if he wishes to pursue the defendant’s property. (Devoe v. Elliot, 2 Caines, 243.) The latest period which the law allows for the service of an execution, is the day when it is returnable. This position, the plaintiff’s counsel seemed to admit. To avert the consequences resulting from it, .they contended, that it is not positively averred, that the-' levy and sale were made after the return day of the execution. This leads to a consideration of the point, whether the day on which the levy is stated to have been made in this case, is material or not, or, in other words, whether the plaintiff, upon a trial, may be permitted to prove that the levy was made on any other day than that laid in the declaration.
I consider the day, here, to be material, and, consequently, that the plaintiff would not, on the trial, be permitted to prove the service of the execution on any other day, than that stated, in the declaration. If we are correct in this, it will be found, either that the defendants are not liable at all, or, if liable, that this is not the proper form of action. The plaintiff is bound to show, not only that he has sustained an injury, for which the law gives him right of action, but also that he has such right, in the particular forin of action, to which he has resorted for a satisfaction. The gravamen, in the first count, is, that the defendants maliciously caused and procured the sheriff of West-Chester, to execute the test.fi.fa. in his hands, after the payment of the judgment to the sheriff of Nexv-Tork, on the execution, previously de-, livered to. him. And it is averred, that the sheriff o( [457]*457West-Chester, made his levy on the 2d day of December., (laid under a videlicet,) which was after the execution was returnable, and that he sold, on the tenth of the same month, which is also laid under a videlicet. If the levy and sale did, in fact, take place on those days, the sheriff was wholly unauthorised; and if the defendants caused and procured the proceedings, nothing can be clearer, than that they are all trespassers ; because, the taking the plaintiff’s property, in that case, was unlawful, and the injury resulting therefrom was direct and immediate, and not consequential. It is in this point of view, that we deem the day here to be material.
, The general rule of law on this subject, is laid down with great precision and accuracy, by Sir William Blackstone•, (arguendo,) in the case of the Bishop of Lincoln and another v. Wolfreston. (1 Bl. Rep. 495.) “ The true distinction,” he says, “ is, that where the time at which a fact happened is immaterial, and it might as well have happened at another day, there, if alleged under a scilicet, it is absolutely nugatory, and is, therefore, not traversable ; and. if it be repugnant to the premises, it shall not vitiate the plea, but the scilicet itself shall be rejected as superfluous and void. But where the precise time is the very point and gist of the cause, there the time alleged by a scilicet is conclusive and traversable j and it shall be intended to be the true time, and no other,” &c.
It was said, on the argument, that as the day in this case was laid under a scilicet, the plaintiff was not bound to conform his proof to the particular day stated. This is true only when the day is immaterial; the well settled rule being, that if the day laid be material, it must be proved, notwithstanding it be laid under a scilicet.
It is of importance, that the boundaries between the different actions should be preserved, particularly be[458]*458tween the actions of trespass, and case. In the case of Sevignac v. Roome, (6 Term Rep., 125.) the judgment was arrested, after a trial and verdict for the plaintiff, because it appeared from the declaration, that the action ought to have been trespass, and not case. The case of Bennus v. Guyldley, (Cro. Jac. 505, 506.) is so exactly like the present, that I think it proper to state the substance of it. It was an action on the case.- The declaration stated, that the defendant recovered a judgment against the plaintiff, part of which was afterwards paid, and the residue released; and the defendant covenanted that he would withdraw all process of execution for the same. The declaration farther stated, that the defendant intending to vex him, &c. served a ca. sa. returnable 3 Trin. following, which he delivered to the sheriff to execute, who, by force thereof, afterwards, to wit, on the 20th day of July, &c. arrested and detained him, until he paid the amount of the judgment. The defendant pleaded that the sheriff did not arrest by his appointment; to which plea, being vitious, the plaintiff demurred. At the argument, the defendant did not maintain the plea, but took several exceptions to the declaration, one of which was, that it was shown, that the sheriff made the arrest on the 20th July, which was long after the return of the writ; so it was done without warrant, and is false imprisonment, in the sheriff who took him by colour of that process, and for that cause principally, the declaration was held to be ill by all the court.
The principles upon which this case was decided, have been repeatedly recognised since. (Green v. Rennet, 1 Term Rep. 656. Pope v. Foster, 4 Term Rep. 590.) We • are of opinion, therefore, that the plaintiff cannot recover in this form of action, for the injury stated in the first count.
[459]*459The second and third counts state the issuing oí the two executions, with some immaterial variations, as in the first count; and that the amount of the judgment was paid by the plaintiff to Livingston, one of the defendants. The ground of complaint is, that after the payment of the judgment, the defendants were bound to have countermanded the service of the execution, delivered to the sheriff of West-Chester, so as to have prevented the plaintiff’s goods from being levied on and sold, &c.' and that the defendants, maliciously intending to injure the plaintiff, did not countermand, and that the sheriff of West-Chester, did, afterwards, and before the “ return of the execution, to wit, on the 2d Decernher” seize, and, afterwards, sell the plaintiff’s goods.
If it be true, that after the return of the writ, its force was spent, then, the defendants certainly had no reason to apprehend that the sheriff would proceed upon it, and they were under no legal or moral obligation to countermand it. It being unlawful for the sheriff to proceed, they had a right to presume that he would not proceed. The sheriff acted without any directions from them, and it would, therefore, be unjust to hold them responsible for his misconduct. In this state of the case, it cannot but Be seen, that the day of the levy becomes the turning point, and is, therefore, an important and material fact. That being the case, the plaintiff is bound by the very day laid in the declaration. The allegation, that the defendants, “ wilfully and maliciously,” neglected to countermand, and prevent a further proceeding on the execution, does not alter the case ; for, if the law did not ini - pose it upon them, as a duty to countermand, then omitting to do so, whatever may have been their motives for the omission, will not subject them to an action.
It was said by the plaintiff’s counsel, that in these two counts, it is alleged, that the levy was made “ before the return of the execution,” and that the day, ( 2d De~ [460]*460cember,) afterwards, being laid under a scilicet, ought td be rejected as surplusage. The declaration then would ' stand without any day, as to the time when the levy was made. Without stopping to inquire how far it would be vitious for that cause, I proceed to give the more conclusive answer to this argument. A scilicet repugnant to the preceding matter is void, and may, of course, be rejected as surplusage. But when a scilicet is not repugnant to the preceding matter, but will agree with it, then the scilicet is a direct affirmation, and shall be taken positively. The levy here, is said to have been made, “ before the return of the execution.” This may well mean, and so it ought to be understood, before the actual return of the execution, into the office; and then it is entirely reconcilable with the time when it is alleged the execution was served, viz. the second of December.
The case of Treswaller v. Keyne, (Cro. Jac. 619, 620.) appears to be in point. Without giving any opinion on the other points raised in the argument, we are of opinion, that the demurrer is well taken, and that the defendants are entitled to judgment.
Judgment for the defendants.