CONNOR, J., concurs in the concurring opinion.
When this case was before this Court at Spring Term, 1904, it was decided that there was a misjoinder of causes of action. 135 N.C. 73. The plaintiff is now proceeding against the defendant company, not upon attachment bond, but under the principles of the common law, to recover damages for such alleged unlawful seizure. The defendant demurs to the new complaint, filed as a consequence of the former decision of the Court, upon the following (176) grounds: (1) The complaint does not allege the institution of the suit or proceedings by the defendant against the plaintiff without probable cause; (2) it does not allege malice in the institution of the said suit or proceeding; (3) it does not allege the complete termination of said suit or proceeding.
We concur with the court below in overruling the demurrer. It is not necessary to consider whether this action is one for damages for malicious prosecution. If the facts in the complaint constitute a cause of action upon the proof of which to the satisfaction of a jury damages are allowable, then the complaint is sufficient. In this view it is immaterial whether it is classified as an action for malicious prosecution or an action for abuse of legal process. It seems to us, however, that it more properly belongs under the latter classification. In some States the cause of action set out in the complaint is called an action for malicious attachment. Lovier v. Gilpin, 6 Dana (Ky.), 321; Smith v. Story, 4 Humphrey (Tenn.), 159; and cases collected in Wait's Actions and Defenses, vol. 1,
A malicious prosecution is said to be one in which the motive in suing out the process is a wrongful and malicious one; and an action for abuse of legal process is where the process has been put to a wrongful, illegal, and unjustifiable purpose. Neither action can be maintained, unless there is an actual seizure of the property of the plaintiff or an arrest of his person. A malicious prosecution has been defined as a "prosecution of some charge which is wilful, wanton, or reckless, or against the prosecutor's sense of duty and right, or for ends he knows
or is bound to know are wrong and against the dictates of public policy." 19 A. E. (2 Ed.), 650.
In Grainger v. Hill, 33 E. C. L., 333, Chief Justice Tindal notes the distinction which he says exists between an action for malicious (177) prosecution or arrest and one for abusing the process of the law. He says: "This is an action for abusing the process of the law by applying it to extort property or money from the plaintiff, and not an action for a malicious prosecution, in order to support which latter action the termination of the previous proceeding must be proved and the absence of reasonable and probable cause be alleged as well as proved." The eminent judge again says: "His complaint being that the process of law has been abused to effect an object not within the scope of the process, it is immaterial whether the suit which that process commenced has been determined or not, or whether or not it was founded on reasonable and probable cause."
So the distinction seems to be well taken that in an action for wrongful and unlawful abuse of process of the court it is not necessary to allege the termination of the proceeding. To the same effect in Prough v.Entricken, 11 Pa. St., 81.
In Sneeden v. Harris, 109 N.C. 354, it is held that in an action for malicious abuse of process it is not necessary to allege the termination of the proceeding.
Kirkham v. Coe, 46 N.C. 423, was an action on the case for wrongfully suing out an attachment. In that case Judge Pearson says that "The action may be maintained by showing a want of probable cause, without alleging or proving that the defendant was actuated by malice." The learned Chief Justice does not say that that character of action can be maintained only and solely by showing a want of probable cause. He says: "To maintain an action like the present it is sufficient to show a want of probable cause. To maintain an action of slander it is sufficient to show malice. To maintain an action for malicious prosecution both a want of probable cause and malice must be shown." Again, he says: "When one in the assertion of a civil right resorts to an extraordinary process without probable cause, and thereby injures his neighbor, (178) there is no ground of public policy upon which to excuse him."
In Williams v. Hunter, 10 N.C. 545, Taylor, C. J., states in substance that if the action is brought to oppress the defendant, and with knowledge at the time he sued out the process that the plaintiff had no cause of action, it would give the injured party a right to sue.
The defendant further contends that the plaintiff must allege and prove malice in order to recover in this action. We do not think malice is a necessary ingredient in an action for damages for unlawfully
attaching the plaintiff's property. In Kirkham v. Coe, supra, Judge Pearson
says: "It is a matter between private citizens, and if the wrongful act of one causes loss to another, there is no reason why compensation should not be made. Whether in such a case proof of malice would entitle the party not only to compensation, but to vindictive damages, is a question not now before us. It is sufficient to say, malice need not be proven in order to support the action, for the damage is the same to the plaintiff, and the `gist' of action is that the defendant had injured him, caused him to sustain damages wrongfully, by suing out the process without probable cause."
We will not undertake to reconcile the difference in the language used by Chief Justice Tindal and Chief Justice Pearson in regard to probable cause. We will, of course, follow the decision of our own Court and hold that in an action for damages for a malicious prosecution it is necessary to allege and prove malice, a want of probable cause, and that the prosecution has terminated. In an action for damages for abuse of legal process it is necessary to allege and prove a want of probable cause, but not necessary to allege or prove malice or that the proceeding has terminated, in order to recover actual damages. Where punitive damages are claimed, in such latter action it seems to be necessary to allege and prove malice, or facts from which the law will infer malice. In the case before us the facts set forth in the complaint are such that, if true, the law will infer both malice (179) and a want of probable cause from them, and they are tantamount to specific allegations of malice and want of probable cause.
It appears from the complaint that the defendant held a debt against the N.C. Coal and Coke Company for $416, and that in order to collect the said debt the defendant, the Wakefield Hardware Company, instituted an action to recover it from the Coal and Coke Company and from this plaintiff, the defendant well knowing that the plaintiff did not owe it a penny. The plaintiff further alleges that, in order to extort this money from the plaintiff, the defendant caused a warrant of attachment to be issued in the said proceeding and caused the plaintiff's cars to be seized and held until ______ April, 1903, thus depriving the plaintiff of the use of its cars for more than two years.
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CONNOR, J., concurs in the concurring opinion.
When this case was before this Court at Spring Term, 1904, it was decided that there was a misjoinder of causes of action. 135 N.C. 73. The plaintiff is now proceeding against the defendant company, not upon attachment bond, but under the principles of the common law, to recover damages for such alleged unlawful seizure. The defendant demurs to the new complaint, filed as a consequence of the former decision of the Court, upon the following (176) grounds: (1) The complaint does not allege the institution of the suit or proceedings by the defendant against the plaintiff without probable cause; (2) it does not allege malice in the institution of the said suit or proceeding; (3) it does not allege the complete termination of said suit or proceeding.
We concur with the court below in overruling the demurrer. It is not necessary to consider whether this action is one for damages for malicious prosecution. If the facts in the complaint constitute a cause of action upon the proof of which to the satisfaction of a jury damages are allowable, then the complaint is sufficient. In this view it is immaterial whether it is classified as an action for malicious prosecution or an action for abuse of legal process. It seems to us, however, that it more properly belongs under the latter classification. In some States the cause of action set out in the complaint is called an action for malicious attachment. Lovier v. Gilpin, 6 Dana (Ky.), 321; Smith v. Story, 4 Humphrey (Tenn.), 159; and cases collected in Wait's Actions and Defenses, vol. 1,
A malicious prosecution is said to be one in which the motive in suing out the process is a wrongful and malicious one; and an action for abuse of legal process is where the process has been put to a wrongful, illegal, and unjustifiable purpose. Neither action can be maintained, unless there is an actual seizure of the property of the plaintiff or an arrest of his person. A malicious prosecution has been defined as a "prosecution of some charge which is wilful, wanton, or reckless, or against the prosecutor's sense of duty and right, or for ends he knows
or is bound to know are wrong and against the dictates of public policy." 19 A. E. (2 Ed.), 650.
In Grainger v. Hill, 33 E. C. L., 333, Chief Justice Tindal notes the distinction which he says exists between an action for malicious (177) prosecution or arrest and one for abusing the process of the law. He says: "This is an action for abusing the process of the law by applying it to extort property or money from the plaintiff, and not an action for a malicious prosecution, in order to support which latter action the termination of the previous proceeding must be proved and the absence of reasonable and probable cause be alleged as well as proved." The eminent judge again says: "His complaint being that the process of law has been abused to effect an object not within the scope of the process, it is immaterial whether the suit which that process commenced has been determined or not, or whether or not it was founded on reasonable and probable cause."
So the distinction seems to be well taken that in an action for wrongful and unlawful abuse of process of the court it is not necessary to allege the termination of the proceeding. To the same effect in Prough v.Entricken, 11 Pa. St., 81.
In Sneeden v. Harris, 109 N.C. 354, it is held that in an action for malicious abuse of process it is not necessary to allege the termination of the proceeding.
Kirkham v. Coe, 46 N.C. 423, was an action on the case for wrongfully suing out an attachment. In that case Judge Pearson says that "The action may be maintained by showing a want of probable cause, without alleging or proving that the defendant was actuated by malice." The learned Chief Justice does not say that that character of action can be maintained only and solely by showing a want of probable cause. He says: "To maintain an action like the present it is sufficient to show a want of probable cause. To maintain an action of slander it is sufficient to show malice. To maintain an action for malicious prosecution both a want of probable cause and malice must be shown." Again, he says: "When one in the assertion of a civil right resorts to an extraordinary process without probable cause, and thereby injures his neighbor, (178) there is no ground of public policy upon which to excuse him."
In Williams v. Hunter, 10 N.C. 545, Taylor, C. J., states in substance that if the action is brought to oppress the defendant, and with knowledge at the time he sued out the process that the plaintiff had no cause of action, it would give the injured party a right to sue.
The defendant further contends that the plaintiff must allege and prove malice in order to recover in this action. We do not think malice is a necessary ingredient in an action for damages for unlawfully
attaching the plaintiff's property. In Kirkham v. Coe, supra, Judge Pearson
says: "It is a matter between private citizens, and if the wrongful act of one causes loss to another, there is no reason why compensation should not be made. Whether in such a case proof of malice would entitle the party not only to compensation, but to vindictive damages, is a question not now before us. It is sufficient to say, malice need not be proven in order to support the action, for the damage is the same to the plaintiff, and the `gist' of action is that the defendant had injured him, caused him to sustain damages wrongfully, by suing out the process without probable cause."
We will not undertake to reconcile the difference in the language used by Chief Justice Tindal and Chief Justice Pearson in regard to probable cause. We will, of course, follow the decision of our own Court and hold that in an action for damages for a malicious prosecution it is necessary to allege and prove malice, a want of probable cause, and that the prosecution has terminated. In an action for damages for abuse of legal process it is necessary to allege and prove a want of probable cause, but not necessary to allege or prove malice or that the proceeding has terminated, in order to recover actual damages. Where punitive damages are claimed, in such latter action it seems to be necessary to allege and prove malice, or facts from which the law will infer malice. In the case before us the facts set forth in the complaint are such that, if true, the law will infer both malice (179) and a want of probable cause from them, and they are tantamount to specific allegations of malice and want of probable cause.
It appears from the complaint that the defendant held a debt against the N.C. Coal and Coke Company for $416, and that in order to collect the said debt the defendant, the Wakefield Hardware Company, instituted an action to recover it from the Coal and Coke Company and from this plaintiff, the defendant well knowing that the plaintiff did not owe it a penny. The plaintiff further alleges that, in order to extort this money from the plaintiff, the defendant caused a warrant of attachment to be issued in the said proceeding and caused the plaintiff's cars to be seized and held until ______ April, 1903, thus depriving the plaintiff of the use of its cars for more than two years. The plaintiff further says that at the April Term, 1903, of Guilford Superior Court a judgment of nonsuit was entered in said action as to this plaintiff, and the defendant, the Wakefield Hardware Company, obtained judgment for the amount of its debt against the N.C. Coal and Coke Company. The complaint alleges that said seizure of the plaintiff's cars was wanton, wilful, reckless, uncalled for, and was made for the purpose of coercing the plaintiff to pay this money, which it did not owe, the defendant believing and hoping that this plaintiff, to avoid the expense of a lawsuit
and the loss of the use of its cars, which were worth ten times the amount of the debt claimed, would pay the debt owing by the Coal and Coke Company. These allegations, as we have said, are tantamount to allegations both of malice and want of probable cause. There is no special virtue in that particular form of expression. The idea is clearly embodied in the language employed in the complaint, that the defendant in suing out his attachment and levying upon the plaintiff's property knew he had no ground for his action, and that it was an (180) unjustifiable and indefensible suit to extort money. The words used necessarily imply malice, which, in legal proceedings, does not necessarily mean personal ill-will or spite. It means a wrongful act done intentionally without just cause or excuse. This is the famous definition given by Bailey, J., in Bromage v. Prosser, 10 E. C. L., 321, which has been quoted in hundreds of cases, both criminal and civil.
We hold that if the plaintiff should prove that the defendant, knowing that the plaintiff was not indebted to it at all, sued out an attachment and levied it upon the plaintiff's cars, the plaintiff would be entitled to recover such actual damages as it has sustained. The allegation and proof sustaining it, that the defendant at the time it caused the attachment to issue knew that the plaintiff did not owe it anything, is equivalent to an allegation and proof of want of probable cause, and such proof would entitle plaintiff to recover actual damages. If the plaintiff should go further, and satisfy the jury that the attachment was sued out by the defendant wantonly, recklessly and willfully, for the purpose of coercing the plaintiff to pay money it did not owe, that would be equivalent to proof of malice, for the law would infer malice from such facts, and the plaintiff would thereby lay the foundation to recover punitive damages, if the jury should find that the attachment was maliciously sued out, and should see fit to award them.
The judgment is
Affirmed.