1862. MCPIKLIN against lands described in, and conveyed by, the said mortgage, and advertised the same for sale; and afterwards, on the 18th March, 1859, sold the plaintiff's equity of redemption, in the said lands so mortgaged, to one John A. WELDON. Morrison, then acting as the defendant's agent, and who purchased the same at the defendant's request; and the defendant thereupon became the owner of the said lands, freed from the plaintiff's equity of redemption. That after the defendant had so purchased the equity of redemption in the said lands, and while the plaintiff was still a prisoner in custody of the Sheriff of Kent, under the said capias ad respondeudum, to-wit, on the 6th May, 1859, he requested the defendant to give the said Sheriff authority to discharge him from custody; but the defendant wilfully and maliciously, and without any reasonable cause, refused to do so, until the 3d September, then next following; whereby the plaintiff was detained in prison during all that time, and was thereby greatly injured, &c. Plea-not guilty. At the trial before Carter, C. J., at the Kent circuit, in November last, the mortgage from the plaintiff to the defendant; the plaintiff's arrest and imprisonment; the judgment against the plaintiff and Peter McPhelim, at the suit of the plaintiff, and the fi. fa. execution issued thereon; and the sale by the Sheriff of the plaintiff's equity of redemption in the land conveyed by the mortgage, and the Sheriff's deed to Morrison were proved, substantially as alleged in the declaration. The judgment against the plaintiff, and Peter McPhelim, was signed upon a bond and warrant of attorney of the same date as the mortgage, and taken as a collateral security for the mortgage debt. The defendant was present at the sale of the land, and read the mortgage, and gave the Sheriff directions to sell, subject to it, which he did; and, by the defendant's direction, the Sheriff's deed was sent to him, and he paid the Sheriff's fees and expenses. Morrison conveyed the property to the defendant in February, 1860. There was no distinct evidence that Morrison had purchased as the agent of the defendant. On the day of the sale, the plaintiff 1862. MCPHELIM against plaintiff asked the defendant if he was selling his property for the same debt for which he was holding his body, and the defendant answered that he was. After the sale, the WELDON. plaintiff said to the defendant, that as the property had sold for more than the mortgage debt, he presumed that he (plaintiff) would be at liberty to leave the prison; to which the defendant answered, "No, not till your account. "is settled." On the 2d May, 1859, the plaintiff was served with a copy of the declaration in the action of covenant, in which he had been arrested, and was a prisoner; and on the 6th May, his attorney wrote to the defendant, suggesting that the plaintiff should be released from prison, in the suit, on filing common bail; to which the defendant answered, that he could not consent to release the plaintiff till all was paid. In August, the plaintiff filed a bill in Equity against the defendant and Morrison, for an account of what had been realized under the execution, and for an injunction to restrain the defendant from proceeding in the action of covenant. An injunction was ordered on the 3d September, and the defendant thereupon directed the Sheriff to discharge the plaintiff out of custody. The Chief-Justice directed the jury that the arrest of the plaintiff was legal, and continued so up to the 18th March, 1859, when his equity of redemption was sold by the Sheriff. That if the purchase was made by Morrison, as the defendant's agent, and with the express intention of conveying the property to the defendant, that would operate as an extinguishment of the mortgage debt, for which the plaintiff had been arrested, and he was then entitled to be discharged from custody, and there was no reasonable, or probable cause, for his subsequent detention; at all events, after the 6th May, when his attorney applied for his discharge. But that to entitle the plaintiff to recover, they must be satisfied that his subsequent detention was malicious on the part of the defendant. The mere want of probable cause, was not conclusive evidence of malice. In a case where it was clear that a party had no right, and knew he had no right, to arrest another, 1862. MCPHELIM against another, that would be strong evidence of malice; but it would be very different where the legal right to imprison was doubtful, and the arrest was abandoned as soon as that right was determined by competent authority. If, WELDON. taking all the circumstances into consideration, they came to the conclusion that in detaining the plaintiff in custody after the 6th May, the defendant was influenced by ill will or vindictive feelings, and for any other purpose than a supposed bona fide right as a creditor, to hold the body of the plaintiff, for the debt for which he had been arrested, that would amount to malice, and entitle the plaintiff to a verdict. The jury found a verdict for the plaintiff, for £200. D. S. Kerr, in Hilary term last, obtained a rule nisi for a new trial, on the grounds of misdirection, and that the verdict was contrary to law. A. L. Palmer shewed cause in Easter term last. 1st. The mortgage debt was extinguished by the purchase of the equity of redemption, and it was the defendant's duty to discharge the plaintiff from imprisonment. A person purchasing an equity of redemption, impliedly undertakes to indemnify the mortgagor against the payment of the debt. 1 Hill. Mortg., 520; 1 Sugd. Vend. (16th Ed.,) 313. In Forsyth v. Bristowe (a), Martin B. says: "The purchaser "of an equity of redemption buys the estate, subject to the mortgage; he agrees to pay the interest, and indemnify "the mortgagor." In the present case, the property was sold expressly subject to the mortgage, so that it is not left to implication of law. This point was expressly decided by the Master of the Rolls, in 1845, in the estate of Beckwith, where it was held that the debt was extinguished, by the mortgagee purchasing the equity of redemption. [RITCHIE, J. Is there no distinction between a legal and an equitable extinguishment of a debt?] No. The mere payment of a debt may not of itself throw upon the defendant the duty of discharging the plaintiff, but he was, at all events, bound to do so on request. In Stewart v. Brundage (b), there was no conveyance to the pur (a) 8 Exch. 716. (b) 1 Allen, 205. chaser 1862. chaser of the property at the Sheriff's sale, and, therefore, it was held that the judgment was not satisfied. It MCPHELIM against cannot be contended now, that the plaintiff was liable to WELDON. be detained in prison for the costs, because that was not the ground on which the defendant claimed the right to retain him, 2. Morrison was only a nominal purchaser of the property; he acted only as the defendant's agent. The defendant controlled the sale, and paid the purchase money, and this would create a trust in law. Ambrose v. Ambrose (a); Ryall v. Ryall (b); Pooley v. Budd (c). The defendant then stands as the purchaser of the equity of redemption, and his debt was thereby satisfied. 3. The defendant's refusal to discharge the plaintiff, after request, was evidence of malice. Page v. Wiple (d); Crozer v. Pilling (e); Heywood v. Collinge (ƒ). If it was necessary to shew any determination of the suit, before bringing this action, it was shewn by the defendant's order to discharge the plaintiff from custody; but it is not necessary to shew a termination of the suit, where the process of the Court has been improperly employed. Grainger v. Hill (g). It is evidence of malice, if a plaintiff in a suit attempts any object beyond the recovery of his debt. The defendant clearly had no reasonable and probable cause for the detention of the plaintiff, after the 6th May. It was an abuse of the process of the Court, to detain him after that, and if there was evidence to shew that it was done maliciously (and the jury must have found that it was), the action will lie. Churchill v. Siggers (h). [CARTER, C. J. If the whole case turned on the question of malice, there was sufficient evidence of it to go to the jury.] 4. The plaintiff proved all the averments in the declaration, and was, therefore, entitled to a verdict. The defendant might have demurred, or moved in arrest of judgment, if the declaration disclosed no cause of action, but he cannot have a new trial. 1862. MCPHELIM against charged by the purchase of the equity of redemption. The only effect of it was to make the defendant liable, if he took possession, to account to the mortgagor for the rents and profits. 1 Hill. Mortg., 448, 454, 455. A A WELDON. debt can only be extinguished by the creditor taking a security of a higher nature, or, by its becoming merged in a judgment. Bac. Abr. Bac. Abr. "Extinguishment." (D). A registered mortgage can only be discharged, by a certificate of satisfaction in the records, signed by the mortgagee. 1 Rev. Stat. c. 112, § 15. And on payment, the mortgagee may be compelled to acknowledge satisfaction, 17 Vict. c. 18, sub-cap. 5, § 8. Lockhart v. Hardy (a), shews that even a foreclosure of a mortgage is not a satisfaction, if the estate is insufficient to satisfy the debt, and that the mortgagee may still proceed on the covenant. [PARker, J. He would open the foreclosure in such a case.] Even if Morrison did purchase, as trustee, for the defendant, this would be no extinguishment of the mortgage. Bailey v. Richardson (b). 2. There was no trust on the face of the record. If there was a trust, it was not in writing, and is, therefore, void, under the Statute of Frauds, 1 Rev. Stat. c. 123, § 7. Bartlett v. Pickersgill (c). Morrison, therefore, was the purchaser of the equity of redemption, and the plaintiff's remedy must be against him. 3. Even if the debt for which the plaintiff was in custody, was paid by what took place, the omission of the defendant to discharge the plaintiff, is not a ground of action, unless he detained the plaintiff maliciously. Moore V. Guardner (d). If the debt was satisfied, the plaintiff should have applied to a Judge, to be discharged from custody: his imprisonment being legal in the first instance, it was not the defendant's duty to discharge him, and he is not liable for not doing so, unless malice is proved. De Medina v. Grove (e). No malice was proved. The Judge must determine whether the facts set up constitute probable cause: the jury is to decide whether the facts exist Parton v. Williams (f). If a party has a legal right (a) 9 Beav. 349. (b) 9 Hare, 734. (c) 4'East, 577, n. (c). to |