#### ROGER KIRKHAM v. JOHN P. COE, WESLEY A. COE, AND ALFRED E. CAUSEY.

In an action on the case, for wrongfully sueing out an attachment, it is sufficient to show a want of probable cause. It is not necessary to show that defendant was actuated by malice.

This was an action on the case for wrongfully sueing out Attachments, tried before his Honor, Judge Manly, at the Spring Term, 1854, of Guilford Superior Court.

The plaintiff introduced a witness by the name of *Sidenham,*who proved that, at the request of Wesley Coe, he went, shortly after daylight, on Monday morning, to plaintiff’s house, and he assisted the defendant, Wesley, to remove from the crib of the plaintiff some thirty-five or forty bushels of corn. This defendant assigned as a reason for going so early, that he expected that others would be at the crib that morning, and that he might as well have his debt as any body else. Upon cross-examination, this witness stated that the plaintiff was in the habit of *424wagoning to tlie South, flour, grain, spirits, bacon, &c., of hie own production, and sometimes articles of this description purchased from others. He also testified that John P. Coe said, while removing the corn, that he thought he might as well save ' his debt as others, and he believed that the plaintiff would not return ; that there was no one at the plaintiff’s house when he went there with the defendant, Wesley, that morning, but on returning home with his wagon, the same morning, he saw smoke in the plaintiff’s chimney, and in a short time, learned that the plaintiff was at home; that he was a near neighbor to the plaintiff, who had been to the South with his wagons on a previous trip; had sold a wagon, returned home on Thursday, and started back on Saturday, with a load of Bacon, for the *Scotch*Fair, taking along with him his wife and only child; that plaintiff had Stock, crop, and other property, but in whose charge, or whether left in charge of any one, he had no personal knowledge.

The defendants introduced and read the affidavits upon which the attachments were founded, in which the defendants, John and Wesley, swore that they had reason to believe, and did believe, that plaintiff had absconded, or removed himself from Guil-ford county, or so concealed himself that the ordinary process of law could not be served on him.

A witness named Scott, was called for the defence, who swore “ that he was a neighbor of the plaintiff, and that on his return from the first trip, plaintiff had applied to him for his wagon, and urged him to let him have it, but he had refused to do so, assigning, as a reason for such refusal, that he was about to use the wagon himself; but the witness told another neighbor by the name of Moore, that his true reason for not letting plaintiff have his wagon was that he feared he would not return.

*Moore,*the person last referred to, was then introduced, who stated that he was working in the shop of the defendant, John P, Coe, when the above mentioned communication was made to him, and that on the same day at dinner, on its being mentic n-■ed by another neighbor who was present, that plaintiff had gone •again, he told them what Scott had said to him, and thei’eupon __ *425J. P. Coe said be would go to Newton Swaim’s, and see him, about it, and that afternoon he went to see Swaim. This witness also testified that on that or the same day on which the corn was brought to the defendant’s, the plaintiff came to the house of the defendant, John P. Coe, about ten o’clock in the forenoon, and complained about the defendant’s sueing out the attachments, and removing the corn, and offered to pay the debts against him, if they would haul the corn back. Defendant, Wesley, said he would do what his brother would do, but they refused to haul the corn back, but offered to lend plaintiff their wagon to haul back the corn if he would pay their debo and all their costs, which offer was declined by the plaintiff, alleging that his horses were tired.

• The defendants then introduced a witness by the name of Landroth, a neighbor of plaintiff, who testified that John P. Coe asked him what they thought about plaintiff’s coming back, to which he (witness) replied that there was a difference of opinion ; some thought he would come back, and some thought he would not.

E. Fentress was introduced by the defendants, and they offered to prove by him that he had also sued out attachments. The defendant’s counsel was asked if the defendants had knowledge of this before they sued out their attachments, to which the counsel replied that they were not prepared to show that; whereupon, the testimony was excluded by the Court; but the witness went on to state that he lived some four or five miles from the plaintiff, and, it was understood in the neighborhood, that the plaintiff was considerably indebted for one of his means.

• Plaintiff, in reply, read in evidence the deposition of Newton Swaim, who stated, in substance, that John P. Coe came to see him the day before the attachments were sued out, when witness explained to him that plaintiff had gone with a load of Bacon to the Scotch Fair, and that he had loaned him his wagon; that he lived in a quarter of a mile of the plaintiff; that plaintiff owed him more than he owed the defendants; that witness tad no doubt plainliff would return, to which Coe replied that *426he never did believe but that the plaintiff would come back. This witness, also, on cress-examination, testified that he had refused to become bound for the property levied on.

The plaintiff showed, by several witnesses, that he. was not from home longer on the last trip than usual; that he wms from home about the length of time usually consumed in such a trip.

Robert Kirkham, a witness for the plaintiff, testified that plaintiff returned from the South on Thursday, and started back on Saturday of the same week, with a load of bacon, which he had bought in the meantime ; that he had sold his wagon on the first trip, and had a horse either stolen or strayed from him on the trip just made; that he was anxious to get to the Scotch Fair, under the belief that the horse might be brought to that place for sale, if he had been stolen, or that he would hear from him, if he had strayed; that he and plaintiff went to the Fair together; that plaintiff had relations living near the place, where the Fair was held; that four miles this side of the Fairground, plaintiff started in a buggy to take his wife and child to one of his relations, leaving his wagon and load to be taken by witness to the Fair; that the plaintiff came to the Fair, took charge of his wagon and load, and was selling his bacon when witness left. Witness returned from the Fair by the way of Fayetteville, and arrived at home one day before the plaintiff returned with his wife and child; that when he left the plaintiff at the Fair, he had not sold out his load; that plaintiff had not been from home longer than usual with persons on such trips; that he went with plaintiff the same day when the corn was removed to the defendant’s, John P. Coe, to whom he complained of the issuing of the attachments and the removal of the corn, and that Coe said in reply that he never did believe that he had run away, and he never did believe but that he would come back, but he thought he had as well have his debts as other people. Plaintiff offered to pay the defendants if they would send the corn back, which they refused to do, and offered to loan him a wagon ; that it was the general understanding in the neighborhood that Newton Swaim attended to the plaintiff’s stock, and had the *427hogs in his absence; that plaintiff got back to his father’s on Sunday night, and staid there all night, which was a mile from his own residence, and the corn was removed early next morning.

Another witness of the plaintiff, Peter Kirkman, testified that he had been to the South on the trip before with the plaintiff, and that the plaintiff had a horse stolen or strayed from hia wagon in the night time, near the fair grounds, on their return home; that this was five days before the Scotch fair, and defendant’s object in going back was to try to get the horse. He also stated that plaintiff had relations near the fair grounds.

Plaintiff’s witness, Franklin Swaim, testified thaf on the day the attachments were levied, he saw the defendant at the plaintiff’s house, and John P. Coe said he did not believe plaintiff would come back; and they were going to bring on the corn in the crib; that they went to the house of Newton Swaim and got the bags from him. Witness wanted them to bring on the cattle, as they could remain in the stalk-field, till it would be seen whether plaintiff would come back, to which defendants objected; that the cattle was worth more than the debts amounted to.

The only question made was, whether on the whole testimony the defendants had probable cause for suing out their attachments, on which the court was against defendants, and instructed the jury to that effect, who found a verdict for plaintiff.

Rule for a *venire de novo;*rulé discharged. Appeal.

*Miller,*for the plaintiff.

*MoreTiead,*for the defendants.

Pearson, J.

From the manner in which the case was put to the jury, the defendants are entitled to have the benefit of every inference of fact that the jury was at liberty to draw from the evidence.

But we fully concur with his Honor, that even in the most favorable point of view, the defendants had no probable cause to believe, that the plaintiff *“*was fraudulently eluding the ordinary *428process of law, or bad privately removed, or so absconded, absented or concealed himself, that the ordinary process of law tould not be served on him.” Abrams v. Pender, Busb. 261.

We are bound in charity to suppose that, at the time the defendants took the oath required by law, before air attachment can issue, they did believe that the plaintiff had, in the language of the country, “run awaybut it is clear, there was no good ground for this belief, and no fair-minded man, who had a due regard for the rights of others, would have come to any such conclusion. So the defendants, if such was their belief, must have persuaded themselves into it from an extreme eagerness to collect their debt. We, also, in charity, suppose they were ignorant of what the law requires before an original attachment can rightfully be taken out.

Admit, that as the plaintiff was “ considerably indebted for one of his means,” and had got back from a trip on Thursday without his wagon and one horse, when it was known that he had loft home again on Saturday, taking his wife and child, a prudent creditor would have been put on enquiry; still, when he found that his debtor had gone off in the usual way, (in the day time,) with bacon that he had bought from one person, in a wagon that he had borrowed from another, and said that he was going to the Scotch Fair, near to which place his wife’s relations lived, and that he had left his cattle, hogs, crop, corn, &c., in •harge of a neighbor, to whom he had given his keys, all suspicion would have been removed, or, at least, a conclusion would have been suspended until after the time when it might be expected the debtor, if he was acting honestly, would return. As there was nothing suspicious in the manner of his going away, the debtor was entitled to a few days of grace at least, to see whether he would come back, before he could be charged with absconding and fraudulently concealing himself to avoid service of the ordinary process of law.

It was insisted upon in the argument here, that, to support the action, malice must be proven as well as a want of probable *429cause. We do not think so. There is a marked difference between this action, and one for malicious prosecution.

It is the policy of the law to encourage the citizens of • the country in their efforts to bring public offenders to the notice of the Court, to the end that they may be regularly put on trial. Hence, one who institutes proceedings for that purpose is in some measure protected, and he does not expose himself to an action merely by acting without probable cause : it must appear also that he acted from malice. It is true, malice is usually inferred by the jury from a want of probable cause, and without explanation, it is the duty of the jury to make the inference j but it may be rebutted, and, if so, the action fails.

But, 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. 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 damage wrongfully, by sueing out the process without probable cause. Abrams v. Pender, cited above. Indeed, the bond which the Statute requires is to provide against *wrongfully*sueing out the attachment, which does riot embrace the idea of malice, except so far as it may have a tendency to aggravate the wrong of causing loss to another, by having his property seized without probable cause, for believing that he has absconded or concealed himself to avoid the ordinary process of the law.

By way of further illustration, we have seen that if one institutes a criminal proceeding, although it turns out that the person charged is innocent, the prosecutor may defeat an action for malicious prosecution, by showing that he had probable cause. *430But if, instead of instituting a criminal proceeding, tbe party utters slanderous words, be cannot defeat an action, by showing that he had probable cause ; he can only justify by' proving the truth of the charge, because the public could, by no possibility, be benefitted by the slander. This shows that the action for malicious prosecution stands on peculiar grounds, which clearly distinguish it from an action like the present, and from the ac- ' tion of slander. To maintain an action like the present, it is sufficient to show a want of probable cause. To maintain an action of slander, it sufficient to show malice. To maintain an action for malicious prosecution, both a want of probable cause and malice must be shown.

Per Curiam. Judgment affirmed.