The evidence tended to show that the plaintiff was arrested upon this warrant at the house, and kept under arrest for some minutes, during which he went with the officer to the defendant's office, and then returned with him to the house, and that he was not released from the arrest until he had abandoned a claim to the right to occupy the house, and had left it finally, taking away with himself and his wife such goods of his own as were in the house when he was arrested. The evidence also tended to show that the defendant caused the making of the complaint and the arrest, and made use of the arrest to compel the plaintiff against his will to abandon a claim to the right to occupy the house and to compel him actually to withdraw from its occupation. The warrant has never been returned, and since it was issued there has been no judicial action upon the complaint. The fact that the prosecution has not been terminated bars any recovery upon the counts for malicious prosecution. Cardival v. Smith [ante, No. 975]; Wood v. Graves [ante, No. 984]. See Wilson v. Hale, 178 Mass. 111. But that fact is not a defence to the counts for abuse of process. Wood v. Graves, ubi supra. A misuse of the warrant and the arrest to compel him to quit the house and relinquish his claim to the right to its occupancy would give him a right of action. Exceptions sustained. 987. PITTSBURG, JOHNSTOWN, EDENSBURG & EASTERN RAILROAD COMPANY v. WAKEFIELD HARDWARE COMPANY SUPREME COURT OF NORTH CAROLINA. 1905 138 N.C. 174, 50 S. E. 571 ACTION by Pittsburg, Johnstown, Edensburg & Eastern Railroad Company against Wakefield Hardware Company, heard by Judge HENRY R. BRYAN, at the September term, 1904, of the Superior Court of Guilford County. This is an action to recover damages for illegal seizure of plaintiff's cars. The defendant demurred to the complaint, the demurrer was overruled, and the defendant appealed. L. M. Scott and J. T. Morehead, for the plaintiff. Scales, Taylor & Scales, for the defendant. BROWN, J. . . . The defendant demurs to the new complaint, filed as a consequence of the former decision of the Court, upon the following grounds: 1st. The complaint does not allege the institution of the suit or proceedings by the defendant against the plaintiff without probable cause. 2d. It does not allege malice in the institution of the said suit or proceeding. 3d. 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. . . . 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. . . . 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. In the case of Grainger v. Hill, 33 E. C. L. 333, Chief Justice TINDAL notes the distinction which, he says, exists between an action for malicious 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. . . . 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. . . . The case of Kirkhan v. Coe, 46 N. C. 423, was an action on the case for wrongfully suing out an attachment. In that case Judge PEARSON says: "To maintain an action like the present it is sufficient to show a want of probable cause. . . . To maintain an action for malicious prosecution both a want of probable cause and malice must be shown. . . . When one in the assertion of a civil right resorts to an extraordinary process without probable cause, and thereby injures his neighbor, there is no ground of public policy upon which to excuse him." . . 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 (1) 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; and (2) that 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. In the case before us the facts set forth in the complaint are such that, if true, the law will infer both malice 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 & 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 & 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 the day of 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 & Coke Company. The complaint alleges that said seizure of the plaintiff's cars was wanton, willful, 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 & 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 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. 988. MCCLENNY v. INVERARITY. SUPREME COURT OF KANSAS. 1909 80 Kan. 569, 103 Pac. 82 ERROR from Jefferson District Court. MARSHALL GEPHART, J. Opinion filed July 3, 1909. Reversed. The plaintiff, Henry McClenny, sued the defendants, Inverarity and Dedrick, for damages for conspiracy, abuse of process, false im prisonment, intimidation, and extortion, whereby they obtained from him a sum of money. The plaintiff had given to Inverarity a note for $175, secured by a chattel mortgage given and recorded in Jefferson County, where the parties then lived. Afterward the plaintiff moved to Gove County, taking with him the mortgaged property, contrary to a stipulation in the mortgage that it should remain in Jefferson County. Inverarity demanded payment, and received a part of the amount, leaving about $145 due. Some time after this he made complaint before a justice of the peace in Jefferson County against the plaintiff for fraudulently disposing of the mortgaged property, and caused a warrant for his arrest to be placed in the hands of defendant Dedrick, who proceeded to Gove County to make the arrest. Dedrick secured the assistance of a local constable, armed with a revolver. They found the plaintiff with his team in the street, and Dedrick told him that he had a warrant for him; that it was for a very grave charge,-for moving mortgaged property,-but that there was a way out of it. The plaintiff asked Dedrick what that way was, and was told that the county attorney had demanded that the constable should bring him or $250 in money. . . . The plaintiff arranged for the money with Mr. Heiney, who gave his check to Dedrick for $250, made payable to the order of the justice of the peace who had issued the warrant. Dedrick promised to send an itemized account of the note and costs, and the balance of the $250, if any should remain. He said that his mileage would be about $70. Dedrick thereupon released the plaintiff, returned to Jefferson County, and handed the check to the justice for his indorsement. This indorsement having been made, Inverarity drew the money upon the check, paid the constable the amount claimed by him as costs and fees, paid the justice $5 costs, and retained the amount claimed to be due upon the note, which he marked "paid” and mailed to the plaintiff. No statement was sent to the plaintiff, nor was any balance of the money returned. The county attorney testified that he drew the complaint after consultation with Inverarity, but that he did not authorize any adjustment of the matter, and did not direct the constable to bring back McClenny or the money. The plaintiff consulted with an attorney after the check had been given and before Dedrick left Gove County. No steps were taken by him or by Heiney to stop this payment. ... The trial Court sustained a demurrer to the plaintiff's evidence, showing substantially the foregoing facts. The plaintiff brings the case here for review. D. H. Morse and Henry Keeler, for the plaintiff in error. H. N. Casebier, for the defendants in error. The opinion of the Court was delivered by BENSON, J. The evidence disclosed the fact that a warrant for the arrest of the plaintiff upon a criminal charge was used to collect a -- debt, and, it seems, to extort an additional amount. The justification suggested is that the prosecution was begun by advice of the county attorney, and that the warrant was good upon its face. Whatever the original motive may have been, the subsequent conduct of the defendants reveals an abuse of the process. The prompt suggestion of the constable, after first impressing the plaintiff with the gravity of the supposed offense, that there is a way out, was such a publication of the motive to extort money as to warrant the inference that this was the real purpose of the proceeding, a purpose condemned alike by the law and good morals. A display of force was used to intimidate, not to enforce obedience to the arrest, for no opposition had appeared. The participation of the complaining witness in this wrongful conduct might have been inferred by the jury from the circumstances proved. The justice's authority appears to have been used only so far as was necessary to accomplish this end. After the money had been received, that authority was ignored, and the writ was not returned nor the costs taxed. The rights of the alleged criminal, as well as of the public, were disregarded. Supposed mileage to the amount of $70, and some other costs, so called, were paid to the constable by Inverarity, and thus the $250, less the $5 paid to the justice, was divided between the defendants. It is argued that the defendants are protected because the process was valid upon its face. An officer is protected by valid process only when he uses it for a legitimate purpose in executing its mandate, but it is not a protection for extortion or other abuses. (1 Cooley, Torts, 3d ed., 354.) "Two elements are necessary to an action for malicious abuse of legal process: first, the existence of an ulterior purpose; and, second, an act in the use of the process not proper in the regular prosecution of the proceeding. Regular and legitimate use of process, though with a bad intention, is not a malicious abuse of process." (1 Cooley, Torts, 3d ed., 355.) The evidence shows that the warrant was used to extort money and not to bring the alleged offender before the magistrate, to break the law and not to enforce it, and the evidence tended to show that this was the purpose for which the warrant was obtained. That it was regular upon its face is no protection against the consequences of such wrongful conduct. The demurrer to the evidence should have been overruled. The judgment is therefore reversed, and the cause remanded for further proceedings. Section 3. Process obtained Contrary to Lawful Procedure 989. CASE OF THE MARSHALSEA. (1613. 10 Co. Rep. 68, 76.) . . . It was resolved that the action well lies against the defendants. And a difference was taken. When a Court has jurisdiction of the cause, and proceeds "inverso |