said plaintiff." Which instructions the court gave to the jury. And the defendant again excepted.

In the progress of the trial the defendant introduced the evidence of Jacob Bush, which tended to prove that the plaintiff,during the summer and fall of 1855, contemplated going to California; but there being no evidence tending to prove that the defendant had any information of this supposed contemplated going to California, except that the said Bush had told the same to the bank officers at Weston, in Lewis county, and the plaintiff having offered other evidence, part of which tended to prove that the defendant sued out the said capias maliciously, the court refused to instruct the jury, on the motion of the defendant, "That if from the evidence they believed the defendant had probable cause to believe,and did believe, at the time he sued out the capias and had the plaintiff arrested, as set forth in the declaration, that the plaintiff was about to depart from Virginia, that then the jury should find only nominal damages for the plaintiff, including his reasonable expenses in quashing said capias." And the defendant again excepted.

There was a verdict and judgment for the plaintiff for one thousand dollars, with interest from the day of trial; and thereupon Parsons applied to this court for a supersedeas, which was awarded.

is

Price, for the appellant.

Sheffey and Hoffman, for the appellee.

LEE, J. The first point made for the plaintiff in error

upon the demurrer to the whole declaration for alleged misjoinder of counts. Some of the counts are upon causes of action for which trespass could certainly be maintained, and these, it is said, could not be united in the same declaration with the others, which are strictly appropriate to the action of trespass on the case.

1860. July Term.

Parsons

V.

Harper.

That this would be so at common law, there is no doubt, and such misjoinder would be fatal on general demurrer. Our statute, however, in relation to the action of trespass on the case, has, I think, materially modified the rule as to misjoinders. By ch. 148 of the Code of Virginia, section 7, (at p. 589,) it is provided that in any case in which an action of trespass will lie, there may be maintained an action of trespass on the case. Thus, then, upon the several causes of action in this declaration for which trespass would lie case may be maintained; and as the action is case, and the declaration purports in its introduction to be wholly in case, those counts for the matters of which it is said trespass would lie may be considered counts in case with as much propriety as counts in trespass. And being for matters which are made the subjects of counts in case by the statute, there can be no reason why they may not be properly united with others which are appropriate at common law to the same action. That the object of the legislature was to remove the difficulties at common law growing out of the nice distinctions between the cases in which trespass was the proper action and those in which the remedy was case, may be true, but, in carrying out this object, they have abolished, in effect, the dis tinction between these different causes of action in a declaration in case; for that they may be united in such a declaration is, as it seems to me, a necessary corollary from the provision which authorizes case to be maintained where the action of trespass would lie also.

I think there is nothing in the objection, and that the demurrer was properly overruled.

Upon the separate demurrers to the several counts in the declaration, the counsel for the plaintiff in error has forborne to insist, except as to those in which there is no averment of malice or want of probable cause; and very properly, as all those counts are clearly good. And as

to those in which neither malice nor want of probable cause is averred, I think no serious doubt can be entertained. If the party had given the bond required by law upon suing out the capias, in a suit upon it for the damages sustained by the defendant in the action, by reason of his arrest and imprisonment through the act of the plaintiff or otherwise, no averment of malice or want of probable cause would be necessary; and the plaintiff cannot be less liable nor can more be required to be averred where the capias is unlawfully sued out without giving the bond. For if one be arrested and imprisoned upon a capias sued out by another unlawfully, or without complying with the condition upon which it might lawfully be issued, and which is afterwards set aside, he is clearly entitled to recover damages for the injury he has sustained without reference to the particular motive by which the party suing out the capias may have been prompted, though where the suing out the process was through malice and without any reasonable cause the damages would doubtless be aggravated because of the motives by which the party was actuated. 2 Stark. Ev. 261; 3 Rob. P. 619; Parsons v. Lloyd, 3 Wils. R. 341; S. C., 2 Wm. Bl. R. 845; Turner v. Felgate, 1 Lev. R. 95; 1 Sid. R. 272; 7 Ray. R. 73; Barker v. Braham, 3 Wils. R. 368; Codrington v. Lloyd, 8 Ad. & E. L. 449 (35 Eng. C. L. R. 433); Curry v. Pringle, 11 John. R. 444; Bissell v. Gold, 1 Wend. R. 210. And even in case of a misnomer in the capias, though the right party be arrested, yet he can maintain trespass against the plaintiff, and the process will be no justification. Shadgett v. Clipson, 8 East's R. 328; Mead v. Hawes, 7 Cow. R. 332; Griswold v. Sedgwick, 6 Cow. R. 456; Same v. Same, 1 Wend. R. 126.

I think there was no just objection to the proof of the fee paid by the plaintiff in the action to counsel to set aside the process under which he had been arrested, and

1860.

July

Term.

Parsons

V.

Harper.

1860. July Term.

Parsons

V.

procure his discharge from imprisonment. Several of the counts in the declaration allege that the plaintiff was put to great charges and costs in obtaining his release Harper. from imprisonment, and the fee paid for that purpose to counsel might be given in evidence to the jury. Bull. N. P. 13; Sandback v. Thomas, 1 Stark. R. 306; 2 Greenl. Ev., § 456, and authorities cited in note n,1 and 3.

The whole fee paid would not necessarily be allowed by the jury, for they would judge of its reasonableness, and in their estimate would allow only what they thought just and proper on that account; but there could be no objection to its being proven that the fee was paid.

In reference to the subject of the second and third bills of exceptions, it may be remarked that whilst it is not at all times easy to see the exact bearing of evidence offered upon the issue between the parties, it is sometimes difficult to say that it is so utterly irrelevant that it may mislead the jury and should for that cause be excluded. Evidence may seem not to bear immediately and directly upon the contested matters of fact in the cause, yet it may serve to illustrate the conduct of a party by throwing light upon the motives by which he may have been prompted; and where this is a material inquiry, if the evidence tend to do this in any degree, it ought not to be rejected, although the court may think it not entitled to great weight with the jury. Now the evidence of both Phillips and Gibson was of this character. A short time before the capias was sued out, the defendant spoke to the witness Phillips in an angry and excited manner about the plaintiff, complained of an alleged injury that he had received from him, and intimated a determined purpose "to go to work" upon him, and to make some use of the matter against him at the next Circuit court. The feeling which he manifested was of anything but a kind and friendly character. The witness Gibson was the president of a branch bank

at which the plaintiff had been a borrower, in the town of Romney, some distance from the residence of these parties; and being on a visit to Randolph county, he fell in with the defendant, and in conversation the latter very unnecessarily introduced the subject of the indebtedness of "the Harpers," (no doubt including the plaintiff,) and made a remark plainly calculated to impair their credit at bank, and which appears to have had its effect upon the mind of the witness. If the testimony of these witnesses did not bear directly upon the subject of the capias sued out by the defendant, it certainly tended to show the mind and feeling of the defendant towards the plaintiff, and, with the other circumstances of the case, might serve to make out the malice imputed to him. Chambers v. Robinson, 1 Str. R. 691; 2 Stark. Ev., §64; 2 Greenl. Ev., § 453, and authorities cited. I cannot undertake to say that the Circuit court erred in permitting it to go to the jury, to have such weight as they might think it entitled to.

The fourth bill of exceptions was to the introduction of the record of the case in which the affidavit was made and the capias complained of sued out. It is conceded that so much of the record as disclosed the suing out of the process, and that it was quashed by the court, might properly have been in evidence; but it is insisted that all the rest was inadmissible.

In general, when a record is to be given in evidence, the whole record should be produced. Thus it is said, where any record is exemplified, the whole record must be exemplified; for the construction must be taken from the view of the matter taken together. 3 Inst. 173; 3 Bac. Ab. by Bouvier (Phil. ed. 1852), “ Evidence," F., p. 536. And Chief Baron Comyn says, "The whole record which concerns the matter in question ought to be produced." 4 Com. Dig., " Evidence," A, 4, p. 89; 2 Phil. Ev. 188. There may be cases, doubtless,

There

66

1860. July Term.

Parsons

V.

Harper.