The plaintiff brings this action and files the following complaint:
"1. That on or about 1 June, 1893, the defendant, Solomon Bear, with the purpose and intent of extorting from the plaintiff an order upon one J. M. Wright for the payment to him of the sum of two hundred and sixty-four and 85-100 dollars, claimed by him to be due and owing to him by plaintiff, but which plaintiff denied, out of the proceeds of an insurance policy assigned by plaintiff to the said Wright, *Page 206 threatened the plaintiff with arrest and imprisonment unless he gave him said order, and upon his refusing to do so made an affidavit in which he falsely alleged that plaintiff was about to remove himself and property from this State with intent to defraud his creditors, and sued out writ of arrest and bail for the alleged purpose of detaining the plaintiff in this State to answer such a judgment which he, the defendant, might obtain in a suit then instituted by him to recover the alleged debt before stated, and which as aforesaid was denied; and upon said writ he had the defendant arrested, deprived of his liberty and incarcerated in the common jail of New Hanover County (300) for the period of six days and nights.
"2. That at the time the defendant made said affidavit and sued out said writ he well knew that plaintiff was insolvent and that he could not collect this debt, even if it existed, or any other debt by a judgment against him and by detaining him here for that alleged purpose, and that the only way he could collect the said disputed debt was by forcing this plaintiff through fear of arrest to give the said order, which plaintiff had refused to do; and plaintiff alleges, and so charges, that the defendant sued out said writ and used it not for the purpose set forth therein or commanded by the exigency of the writ, but for the illegal and malicious purpose of compelling him, the plaintiff, as aforesaid, through the fear of imprisonment either to pay the amount of a disputed debt to him in cash or to give him the said order upon the said J. M. Wright. And the plaintiff charges that by so doing he perpetrated a fraud upon the court and abused its process, to the discredit of the court and the law and to the great wrong and injury of the plaintiff.
"3. That the plaintiff was arrested at night, and when taken to the jail found there awaiting him the defendant, Bear, who told him that if he would give the said order to him he would have him released, but otherwise he must be locked up for the night. And upon plaintiff refusing to do this, the defendant directed the Sheriff to proceed, and the plaintiff was locked up in the common cell used to imprison criminals and other violators of the law.
"4. That, instead of ordering said arrest in the daytime when plaintiff might have sought for someone to bail him and prevent his going to jail, the defendant waited to order the arrest until late at night, when he knew plaintiff, being a stranger, could not procure a bond and (301) would therefore be compelled either to comply with his demand or spend the night in a felon's cell. And plaintiff alleges that he could not procure bail that night, nor until the expiration of six days and nights thereafter, being a comparative stranger in the city of *Page 207 Wilmington, and having few friends there; and that for the space of six days and nights he was compelled to endure the pain, mortification and mental anguish of the disgrace of imprisonment in a common jail and the deprivation of his liberty.
"Wherefore, plaintiff demands judgment against the defendant,
"First. For five thousand dollars damages for the wrong and injury done to him by defendant's illegal and nefarious acts.
"Second. For five thousand dollars punitive damages for his violation and abuse of the law.
"Third. For the costs of this suit."
(Verification in New York.)
The defendant demurred ore tenus. The court below sustained the demurrer upon the ground that the complaint did not state a cause of action, and plaintiff appealed.
In this ruling there is error. The demurrer admits the allegations of the complaint to be true. And it was admitted by defendant's counsel on the argument that the money in Wright's hands was all that defendant knew of plaintiff having, and that this sum was less than $500. Article I, section 16, of the Constitution of the State declares: "There shall be no imprisonment for debt in this State except in cases of fraud." Article X, section 1, declares: "The personal property of any resident of this State to the value of $500 shall be and is hereby exempted from sale under execution or other final process of any court issued for the collection of any debt." "The words `personal property' shall include moneys, goods, chattels, choses in action and evidences of debt, including all things capable of ownership. . . . (302) The word `property' shall include all property, both real and personal." The Code, ch. 59, sec. 3765, subsec. 6. And, though it is not as distinctly stated as it might have been, we think it sufficiently appears from the complaint that plaintiff was a resident of the State at the time the warrant was sued out and plaintiff arrested. It states that defendant's affidavit alleged "that plaintiff was about to remove himself and property from the State." This, we think, clearly implies that plaintiff was a resident of the State." This, term "remove himself from the State" would have been improperly used had he not been at that time a resident.
Besides, the admissions in defendant's answer should have been considered for jurisdictional purposes in aid of plaintiff's complaint.Wilson v. Sykes, 84 N.C. 215; Johnson v. Finch, 93 N.C. 205; Puffer v.Lucas, 101 N.C. 281. And the answer states "that on one occasion one of the parties (that defendant sent to collect his debt) went to the store where the plaintiff did business and where he lived." So if there *Page 208 was any doubt left in the statement of the complaint as to the plaintiff being a resident of the State at the time of the warrant and arrest, we think that is supplied by the defendant's answer.
Whatever conflicts there may appear to be in the opinions of this Court as to when the homestead exemption commences, what is an abandonment, and when it terminates, can have no influence on this question. They are as to the homestead, real estate.
But as to personal property, under Article X, section 1, of the Constitution, $500 worth is absolutely free from any and all process for the collection or the enforcement of payment of debt. The creditor has no lien upon this amount of his debtor's personal property, nor can he have unless it is created by the debtor himself. There is no judgment (303) lien that attaches; there is no lien by execution until levy, and there can be no levy on this. So it is absolutely free from all process for debt.
It may be claimed, and is claimed, that plaintiff was not entitled to this protection until it is laid off and allotted and assigned to him. We do not think so. It is not the allotment of the appraisers that gives the debtor this protection, but the vigor and force of the Constitution. And if it should be levied before, the debtor is still entitled to have it laid off and assigned to him.
This doctrine may not apply in matters of attachment, where it is alleged the defendant has left the State and lost his right of protection, for the reason that it is personal, attaches to and follows the person wherever he may wish to take it and he may dispose of it as he pleases free from any and all claims of creditors.
But we are now considering and treating the case before us, and not what may be exceptions. And as it is admitted this insurance money in the hands of Wright, amounting to less than $500, was all that plaintiff had, so far as defendant Bear knew, it is manifest that an assignment would have been a vain and useless thing, as there was less than $500, and one that the law would not require, as it never requires vain and useless things to be done.
Then, it is manifest from the allegations of the complaint that the defendant was trying to force the plaintiff by means of the extraordinary process of the court and the fear of imprisonment to pay him out of, or give him an order upon, a fund which the Constitution has declared shall be free from the exigencies of all process and from the debt of Solomon Bear or any one else.
This being so, we must declare that the complaint, aided by the answer, states a cause of action which should have been tried (304) by a jury. Sneeden v. Harris, 109 N.C. 349; Hewit v. Wooten, *Page 209 52 N.C. 182; Grainger v. Hill, 33 Eng. Com. Law, 333; Myer v. Walter, 64 Pa. St., 283; 2 Greenleaf Ev., p. 752; Wood v. Graves, 44 Mass. 365; 59 American Reports, 95. Our judgment in this case, we think, is fully sustained in Sneeden v. Harris and Hewit v. Wooten, supra. But the leading case on this subject, in which it is probably more fully discussed than any other, is Grainger v. Hill, supra. In that case Tindall, C. J., said: "The complaint being that the process of the 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 upon reasonable and probable cause."
Defendant contended that this action was like an action for false imprisonment, could not be maintained until the action under which plaintiff was arrested had ended. But the case of Grainger v. Hill is authority for saying it was not necessary to the action that the action ofBear v. Lockhart should have ended.
Justice Sharswood, in Myer v. Walter, 64 Pa. St., 283, discussing this question says: "An abuse of process is where the party employs it for some unlawful object, not the purpose which it is intended by the law to effect; in other words, a perversion of it."
Mr. Greenleaf (Vol. II, p. 752) uses the following language: "But if the action is for abusing the process of law, in order illegally to compel a party to do a collateral act, such as to give up his property, it is not necessary to aver and prove that the process improperly employed is at an end, nor that it was sued out without reasonable or probable cause."
Battle, J., for the Court, in Hewit v. Wooten, 52 N.C. 182, says:
"If it appears that the present defendant sued out the writ mentioned in the bill of exceptions against the present plaintiff (305) for the purpose of extorting money from him by reason of his arrest, then the case would be within the principle sanctioned by the Court of Common Pleas in Grainger v. Hill, supra."
In Wood v. Graves, 144 Mass. 365 (59 Am. Reports, 95), the Court uses the following language: "There is no doubt an action lies for the malicious abuse of lawful process, civil or criminal, . . . . Perhaps the most frequent form of such abuse is by working upon the fears of the person under arrest for the purpose of extorting money or other property, or compelling him to sign some paper, to give up some claim or to do some other act in accordance with the wishes of those who have control of the prosecution."
Therefore, after ascertaining the fact that defendant, Bear, had no right by any process of law to have the funds in the hands of Wright *Page 210 appropriated to the payment of his debt, we are of the opinion that the authorities cited clearly show that plaintiff has a cause of action that should be submitted to a jury under proper instructions from the court as to the law arising upon the pleadings and evidence. We have gone somewhat out of our usual course, in writing opinions, of simply citing the cases we rely upon, and have in this case quoted them at some length. But we do this as we regard it as an important question, and as it was ably and earnestly argued on both sides. There is error, and the nonsuit should be set aside and the case restored to the docket for trial.
Error.