The opinion of the court was delivered, at the circuit session in September, by
Bennett, J.This case comes up upon a general demurrer to the plaintiff’s declaration, and, of course, the only question is whether a legal cause of actidn is set out in the declaration. It may with truth be said, that an attempt to maintain an action upon the facts stated in the declaration is novel; but this does not prove conclusively that the action cannot be sustained in this age of progress. The facts stated in the declaration are briefly that the plaintiffs, being a banking corporation, had put in circulation a large amount of their bills, and that the bills would have had a continued and extended circulation, had it not been for the acts of the defendants, to the great gain and profit of the plaintiffs ; and that the Suffolk Bank bought them up from time to time, and have refused again to exchange them for other money, and kept them out of circulation; and have called upon and compelled the plaintiffs to redeem the bills in specie.
*508The declaration charges that the acts of the defendants were performed with wiched and corrupt motives, and with an intent to injure, oppress and embarrass the plaintiffs in their business, whereby they have been damnified in their business, harrassed, oppressed, and deprived of great gains, as they say, which they otherwise would have made, to wit, ten thousand dollars. It is hardly necessary to say that the plaintiffs issued their bills as a circulating medium in lieu of specie currency, and that it was the right of the defendants, in common with others, to purchase in their bills, and thus withdraw them from circulation, until they should choose again to put them in circulation or call upon the plaintiffs to redeem their promise by the payment of their bills in specie.
The defendants are not charged with doing any act in itself considered wrong; but it is attempted to make the acts actionable by reason of the bad motive imputed to the defendants in doing them. /'This case, seems to us, but an ordinary one of a creditor calling upon his debtor for his pay, at a time, and at a place, and in a manner to which the debtor has no right to make objection. It was morally and legally the duty of the plaintiffs at all times to be ready and willing to redeem their bills, and if it has operated to their injury to be called upon at any particular time to redeem a particular amount, it is “ damnum absque injuriaf Here wqs no unlawful conspiracy by the defendants with others, either to do a lawful act in an unlawful manner, or an unlawful act to the injury of the plaintiffs; but the declaration charges, in effect, that the acts were done from bad motives in the defendants. This, we think, is not enough. Motive alone is not enough to render the defendants liable for doing those acts, which they had a right to do. It is too well settled to need authority that malice alone will not sustain an action for a vexatious suit. There must also be want of probable cause. This principle is enough to settle this case. If the defendants could not be sued for instituting suits maliciously to collect pay upon the plaintiff’s bills which they lawfully held, much less could they be sued for simply calling upon the defendants for pay, without the intervention of a suit, though done with malice. It may be true that sometimes the consequences attending an act may serve to give character to that act, and the rule has become *509established, and grown into a maxim that a man must use his own rights with due regard to the rights of others ; but this principle does not apply to the present case. Here the act of presenting the plaintiff’s bills for payment, has no natural connection with any injurious consequences to follow from it, and if such consequences follow, they must be fortuitous, and cannot give character to the act so as to render it unlawful. See Williams v. Hunter, 3 Hawks, 545. Aso 31 Maine, 438.
It seems impossible to distinguish the case made in the plaintiff’s declaration from an action for maliciously holding a party to bail, or sueing out a writ when nothing is due, in which case the gist of the action is malice and the want of a probable cause, and the principle of that class of cases must govern this.
The result is, the judgment of the county court is affirmed.