*1 THE SUPREME COURT. IN Sé Hardware Go.

Railroad Co. COMPANY. RAILROAD COMPANY v. HARDWARE 13, 1906). (Filed November Malicious Prosecution —Abuse of Process —Profits—Meas- ' ure Damages Evidence—Wrongful of — — n Attachment Counsel. Probable Pause —Advice of plaintiff’s damages growing for out of an attachment of 1. In an action cars, and that and of cause alleging malice an abuse of of ten ears was excessive and attachment of Court, plaintiff might have made profits which the speculative damages. properly excluded as from its cars was upon the in such a case is the interest damages 2. The true measure be, diminished, cars, might case increased value use, daily the ears if in the deterioration of the difference between up, provided tied wrongfully while their deterioration and by giving bond the attachment injury have avoided could not from possession of its cars. retaining and attach- wrongful and malicious damages alleged for 3. In an for action cars, admit the refusing the Court erred plaintiff’s ment surety on the which was testimony agent action, it would payment $10 that for the bond in this attached. the cars replevy bond to secure release of signed a contract, tort, incumbent generally as well as in In cases of improve reasonably can to he upon injured party to do whatever injury. He to lessen the proper opportunities all reasonable reasonable exertions make supine, but should must not remain responsi- himself, thereby reduce loss and diminish help to him. party in default bility of attach- wrongful and malicious damages In an action defendant manager general property, where plaintiff’s ment they told him goods testified that he plaintiff; the account of the use of were for statement; that the former to disbelieve had no reason faith, owed the believing present in good was instituted attached; submitted all the that he debt which advice, that he had no upon his and acted his counsel facts to’ Held, that the attached: Court property the Sheriff idea what they the evidence that if believed jury charging erred probable cause. issued without attachment was that the would find TEEM, FALL N. O.] v. Co.

RailROÁd laid before and sued out facts his counsel 6. Where *2 advice, the alle- under this is to rebut the gation of malice. quantity an excessive the levied an attachment on Where officer the abuse attachment is not liable for property, plaintiff in the advised, encouraged or action. way he in some directed such unless (1) necessary prosecution, show In an action for malicious cause, (2) (3) pro- malice, probable and that former process, it is not has In action for abuse of ceeding terminated. an are things, these but two elements either of three necessary show second, first, in use of purpose; an act necessary: an ulterior proceeding. regular prosecution process proper and Eastern Johnstown, Pittsburg, Ebensburg

ActioN Hardware Company, Wakefield Kailroad Company against Term, and a the August beard Fred Moore at jury, Judge Court 1906, of Superior GuilroRd. a demurrer 73, N. when here, O.,

This case was 135 on the attach- because the surety was sustained misjoinder here, It was ment had been defendant. joined again bond a was over- when demurrer to O., 174, complaint The instituted ruled. defendant had against a of this State, Coke and Coal Company, corporation material, joined $415 for car recovery Pennsylvania, a railroad herein, company incorporated two at time had the same companies co-defendant. The stockholders, officers and the same material nearly The used the latter’s cars. complaint been railroad material was for said In said attachment ten fact, as an principal. undisclosed cars were and it not attached, defendant’s offering the said ten cars were held two when the bond, give years, action was attachment was dissolved. This brought malice want of cause and damages, alleging the attachment the ten ears excessive and abuse of the Court. Both and defend- ant appealed. IN THE SUPREME COURT.

Railroad Co. v. Hardware Morehead, T. J. W. H. Carroll and. Scott & McLean plaintiff.

Taylor & Scales for defendant. APPEAL.

PLAINTIFF'S after J., the ease: The Clark, C. stating plaintiff sought to show that for the ten cars attached it should recover what the ears would have earned of rental or toll. by way car was in evidence that the road is seventeen plaintiff's only miles but that it owns stock long, of cars and its large prin- business was cipal its mileage freight coal cars used on other roads, short, as counsel somewhat its expressed it, its chief felicitously business was that of a *3 “railroad out conveyances. His Honor livery-stable” hiring— excluded properly the evidence of which the profits plaintiff have made for might cars, its that would be because Railroad, speculative 130 damages. v. N. Sharpe The true measure of is interest the value damages upon of the cars, increased diminished, the case be, might the difference between the deterioration in the if in cars, use, their deterioration while tied daily up, wrongfully course, could provided, not have avoided plaintiff from the injury attachment bond—as it is by simply giving shown that it was able to do—and amply possession retaining of its cars.

No Error. APPEAL.

DEFENDANTS Clare, O. error J. was to refuse admit to the testimony of the agent which company prose- surety cution bond a action, in that for of ten dollars payment it would have a bond secure signed to release replevy ten cars when a attached. it be the not Though may duty defendant in all cases bond, to execute a it would be replevy to non-action preposterous justify whereby FALL TEEM, 1906. C.] Railroad Co. when,

claims bas lost $4,750 it rental of cars, awas per solvent no fectly its testi owing debts, president a fied, conld at petty expense, without any probably at all, have bond and retained given cars. its possession “The rule, brief, cases of contract, as well as in tort, incumbent upon an to do generally injured party whatever he can to all reasonable and reasonably improve * * * to proper opportunities lessen must injury. He not remain but should make to supine, reasonable exertions himself, and reduce his loss and diminish the help thereby of the in default responsibility him.”. Note party Bark, v. 6 Am. a St., Where mule was Wright wrong taken it was held fully should injured party another, could recover crop profits he would have made if the mule had not been taken. Sledge Reid, N. C., The Court below erred that “If instructing the jury ” believed the to answer evidence, the first ‘Yes.’ issue issue “Did was, That and without wrongfully probable cause, cause to be issued and levied warrant of ?” of the upon

There was submit to ample the jury upon question cause. There was the testimony of the defendant general manager

the told him were and for the of for goods use. of the account he that had no reason whatsoever plaintiff; to disbelieve this that was statement; the action instituted by in the utmost that faith, good believing owed the debt for which the was verily property attached; out of the abund- belief, notwithstanding ance of caution, he to his submitted the facts honestly counsel, who advised him that he had a cause of action as that no such against were taken plaintiff; except steps were advised his that as more attorney; attaching THE SUPREME COURT. IN Go. Hardware Co.

RailROad would he warrant, of claim than the amount property Sheriff had attached under what idea no and that his cause writ, only taking virtue inabil- action was his of the trial a.nonsuit time at attendance, witness, secure the as ity goods. all the facts counsel had laid before high The defendant attachment and had out the sued profession standing is evidence to rebut advice. This the allegation under his Association, 116 N. C., and Loan malice: Smith Building it is evidence authorities 73 and there are ; many holding Am. 93, See cases collected note cause; also of probable St., 461. maintained for malic- action, furthermore, cannot be

This found, there was no if, ious jury C., malice. Railroad v. Hardware Company, is the for an action for abuse The only ground for the an of cars alleged purpose on excessive number levy to submit- debt, of an preferably forcing payment There the attachment. to loss and inconvenience by ting this, set in denial of out, above evidence, certainly to> of the case instruct jury it was error any aspect issue “Yes.” answer first an he excessive did, it seems that levied, If officer was not the plaintiff quantity property, ad- directed, had in some way unless it liable the abuse (2 Ed.), act. 19 Am. and Eng. such Enc. vised or encouraged an denied, jury. raised issue for the This being between an distinction well note here the be as may for abuse action for malicious prosecution must there- In action for malicious prosecution process. cause, want of malice and shown be (1) (2) Railroad v. has terminated. former (3) proceeding abuse In an action 138 N. Company, *5 TERM, NALL C.] Jones Commissioners. it is show either these three not process necessary said in the case last cited inadvertence was

things. By canse must be shown. “If probable process, either civil of for a made use wilfully purpose criminal, not this is an abuse for which an action law, justified by will lie.” 1 Torts 354. “Two elements are (3 Cooley Ed.), second, an ulterior act first, necessary: purpose; use proper regular Ib., sec. líale 203; 355; Torts,

proceeding. Jaggard sec. 185. “An abuse of is where Torts, legal process intended for some unlawful not the purpose employed object or want of law. It is not show either malice necessary terminated, cause, nor that the proceeding baseless or not.” it is immaterial whether such proceeding Walter, has been 64 Pa. distinction v. 283. The Mayer St., 139 N. stated. Jackson v. clearly Company, Telegraph Error.

JONES COMMISSIONERS.

(Filed 13, 1906). November Bonds—Legislative Subscriptions Railroads — Taxation — and Townships Uniformity—Counties —Manda- Power — Action —Parties. mus —Limitation of procured building townships extra

1. Where certain taxation railroad, power Legislature has territory through their exclusively in those expend County Commissioners to to direct property in from such railroad townships county taxes derived roads, extending building bridges, repairing townships “in said may schools, deem purposes as Commissioners or such other fully reim- townships shall best,” in said so used until the amount railroad. building said to aid paid for the amount out burse them county the tax rate requirement is no constitutional There everywhere. It varies in the different shall be the same purposes