It was error to refuse to admit the testimony of the agent of the company which was surety on the prosecution bond in this action, that for a payment of ten dollars it would have signed a replevy bond to secure release of the ten cars when attached. Though it may not be the duty of a defendant in all cases to execute a replevy bond, it would be preposterous to justify non-action whereby (57) the plaintiff claims it has lost $4,750 rental of cars, when it was a perfectly solvent company, owing no debts, as its president testified, and could at a petty expense, and probably without any at all, have given bond and retained possession of its cars. "The rule, in brief, is that in cases of contract, as well as in tort, it is generally incumbent upon an injured party to do whatever he reasonably can to improve all reasonable and proper opportunities to lessen the injury. * * * He must not remain supine, but should make reasonable exertions to help himself, and thereby reduce his loss and diminish the responsibility of the party in default to him." Note to Wright v. Bank, 6 Am. St., 365. Where a mule was wrongfully taken it was held that the injured party should have bought another, and could not recover the profits of the crop he would have made if the mule had not been taken.Sledge v. Reid, 73 N.C. 440.
The Court below erred in instructing the jury that "if they believed the evidence, to answer the first issue `Yes.'" That issue was, "Did the *Page 71 defendant wrongfully and without probable cause, cause to be issued and levied a warrant of attachment upon the property of the plaintiff?"
There was ample evidence to submit to the jury upon the question of probable cause. There was the testimony of the general manager of the defendant that the party who bought the goods told him they were for the use of and bought for the account of the plaintiff; that he had no reason whatsoever to disbelieve this statement; that the action was instituted by the defendant in the utmost good faith, believing that the plaintiff verily owed the debt for which the property was attached; that notwithstanding this belief, out of the abundance of caution, he submitted honestly all the facts to his counsel, who advised him that he had a cause of action against the plaintiff; that no steps were taken except such as were advised by his attorney; that as for attaching more property than the amount of his claim would warrant, he (58) had no idea what property the Sheriff had attached under and by virtue of the writ, and that his only cause for taking a nonsuit at the time of the trial of the action was his inability to secure the attendance, as a witness, of the party who bought the goods.
The defendant had laid all the facts before counsel of high standing in the profession and had sued out the attachment under his advice. This is evidence to rebut the allegation of malice: Smith v. B. and L. Asso.,116 N.C. 73; and there are many authorities holding that it is evidence also of probable cause; see cases collected in note 93, Am. St., 461.
This action, furthermore, cannot be maintained for malicious prosecution if, as the jury have found, there was no malice. R. R. v. Hardware Company,138 N.C. 174.
The only ground for an action for abuse of process is the levy on an excessive number of cars for the alleged purpose of forcing payment of an alleged debt, preferably to submitting to loss and inconvenience by the attachment. There was certainly evidence, above set out, in denial of this, and it was error in any aspect of the case to instruct the jury to answer the first issue "Yes."
If the officer levied, as it seems that he did, on an excessive quantity of property, the plaintiff in the attachment was not liable for the abuse unless it had in some way directed, advised or encouraged such act. 19 Am. and Eng. Enc. (2 Ed.), 630. This being denied, raised an issue for the jury.
It may be as well to not here the distinction between an action for malicious prosecution and an action for abuse of process. In an action for malicious prosecution there must be shown (1) malice and (2) want *Page 72 of probable cause, and (3) that the former proceeding has terminated. R. R. v. Hardware Company, 138 N.C. 174. In an action for (59) abuse of process it is not necessary to show either of these three things. By an inadvertence it was said in the case last cited that want of probable cause must be shown. "If process, either civil or criminal, is wilfully made use of for a purpose not justified by the law, this is an abuse for which an action will lie." 1 Cooley Torts (3 Ed.), 354. "Two elements are necessary: first, an ulterior purpose; second, an act in the use of the process not proper in the regular prosecution of the proceeding. Ib., 355; 1 Jaggard Torts, sec. 203; Hale on Torts, sec. 185. "An abuse of legal process is where it is employed for some unlawful object not the purpose intended by law. It is not necessary to show either malice or want of probable cause, nor that the proceeding had terminated, and it is immaterial whether such proceeding was baseless or not." Mayer v. Walter, 64 Pa. St., 283. The distinction has been clearly stated. Jackson v. Telegraph Co., 139 N.C. 356.
Error.
Cited: Gither v. Carpenter, post, 242; Stanford v. Grocery Co., post, 423; Bowen v. King, 146 N.C. 391; Hocutt v. Tel. Co., 147 N.C. 193;Bell v. Machine Co., 150 N.C. 113; Downing v. Stone, 152 N.C. 530;Harvey v. R. R., 153 N.C. 575; Carmichael v. Telephone Co., 157 N.C. 27;Wilkinson v. Wilkinson, 159 N.C. 271; Wright v. Harris, 160 N.C. 546,551, 554; Smith v. Bonding Co., Ib., 576.
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