#### PERCY C. TYLER v. J. and E. MAHONEY.

(Filed 16 September, 1914.)

1, Attachment — Undertaking—Separate Action.

A successful defendant in attachment must seek relief in a separate action on the undertaking.

2. Attachment — Probable Cause — Damages—Malice.

Where plaintiff in attachment without malice has sued out his writ and seized the property of the defendant without probable cause, he is liable to the defendant in that action in the amount of actual damages he has thereby sustained.

*5103. Same — Res Judicata.

The question of recovery by tbe plaintiff in this action for damages be has sustained by reason of the defendant’s having seized his property in attachment without probable cause is not decided in defendant’s appeal in the attachment proceedings, Mahoney v. Tyler, 136 N. C., 42, and the defense of res judicata is untenable.

4. Attachment — Nonresident—Malice—Evidence—Information, Available Knowledge.

Where a person merely leaves the State temporarily for the purpose of prospecting, an attachment against his property here will not lie upon the ground that he was a nonresident; and where he sues the attaching creditor for damages, it is sufficient for him to show as want of probable cause, that the latter acted upon rumor that the plaintiff had changed his place of residence to another State, without asking information from the plaintiff’s wife or family, who had remained in the State, or used other available means to ascertain the truth of the rumor he had heard.

5. Attachment — Probable Cause — Trials—Questions for Jury — Questions for Court.

In this case it is held that the question of probable cause is a mixed one of law and fact, leaving for the jury to determine from the evidence, as a matter of fact, whether the circumstances show the cause to be probable or not probable; but whether, admitting them to be true, they amount to a probable cause is a question of law for the judge.

Appeal by plaintiff from Connor, J., at February Term, 1914, of Bertie.

This is a civil action for damages for wrongfully and illegally attacbing tbe plaintiff’s property. Tbe following issues were submitted to tbe court by the plaintiff and accepted by tbe defendants, towit:

1. Did tbe defendants wrongfully, unlawfully, and without probable cause, attach tbe property of tbe plaintiff, as alleged in tbe complaint?

2. If tbe defendants wrongfully, unlawfully, and without probable cause, attached tbe property of tbe plaintiff, as alleged in tbe complaint, has tbe plaintiff been damaged thereby ?

*5113. If so damaged, in. wbat sum bas be been damaged?

4. In wbat sum bas tbe plaintiff been damaged by reason of tbe wasting loss of tbe property seized under tbe attachment issued?

Tbe plaintiff stated in open court tbat be made no claim against tbe défendant upon bis undertaking, and tbat tbe only claim made by him was tbat tbe -attachment was issued without probable cause, and for abuse of process.

At tbe conclusion of tbe evidence, bis Honor, being of opinion tbat there was no sufficient evidence of a want of probable cause, sustained tbe motion to nonsuit. Tbe plaintiff appealed.

Winston & Matthews for plaintiff.

Winborne & Winborne, J. B. Martin, and Murray Allen for defendant.

BeowN, J.

It appears from tbe evidence in this case tbat tbe plaintiff was indebtéd to tbe defendant in tbe Spring of 1903 in tbe sum of $537. In September of tbat year tbe defendant sued out a writ of attachment and levied it upon tbe plaintiff’s crop and other property, which property, it seems, was sold and applied to tbe defendant’s debt.

Upon tbe return of tbe writ of attachment before Qooke, Judge, tbe writ was vacated and tbe property attached ordered to be restored to tbe defendant in tbe attachment. Tbe defendant in tbe attachment, Tyler, moved in tbe cause for a judgment on tbe undertaking in tbe attachment -proceedings. Upon appeal to this Court, it was held tbat tbe successful defendant in attachment must seek relief for damages in a separate action on tbe undertaking. Mahoney v. Tyler, 136 N. C., 42.

Tbe ground upon which tbe attachment was sued out was tbat tbe defendant therein, Tyler, bad left tbe State and bad become a citizen of South Carolina. Upon a bearing of the attachment, tbe court held tbat tbe defendant was still a resident of this State at tbe time of tbe levy of tbe attachment and vacated tbe same, which ruling was affirmed by this Court. Tbe plaintiff, Tyler, brings this action against tbe defendant for tbe value of tbe property taken and for all damages sustained by reason of tbe unlawful levy of tbe attachment.

*512It is contended by tbe defendant and set up in tbe answer tbat tbe matter is res adjudicada, by tbe decision of tbis Court above cited, and tbat tbe plaintiff, if be bas any remedy, should sue tbe sheriff who levied tbe attachment. This position cannot be sustained. It is apparent, upon reading tbe opinion of tbe Court (136 N. C., page 41), tbat tbe only matter passed upon was tbe regularity of tbe proceedings.

In tbat opinion tbe Court, bolding tbat a motion in tbe cause was not tbe proper remedy, says: “Tbat being true, it follows, with equal if not greater reason, tbat tbe defendant’s remedy is-by civil action, as be could recover at common law damages only for wrongfully suing out tbe attachment, and bis suit would be in tbe nature of an action for malicious prosecution, in which a want of probable cause must be shown in order to sustain the action.”

Tbe present action is brought in pursuance of tbat decision. Tbe liability of one who wrongfully and without probable cause sues out an attachment and levies it upon tbe property of another is not open to question, and is fully recognized in tbe opinion of tbat case.

Tbe allegations of tbe complaint in tbis action are:

Tbat tbe defendants wrongfully and unlawfully sued out and bad levied on tbe said crops an attachment, without having any probable cause therefor, and under which attachment they seized tbe plaintiff’s property as aforesaid and took tbe same unto their possession through their agent, one Carter.-

Tbat while in tbe possession of their agent, tbe said property was damaged, injured, destroyed, wasted, and much of it made way with, to plaintiff’s great damage and at least tbe sum of $500.

Tbat all of defendant’s acts in suing out said attachment, in levying tbe same on said property, in taking possession of tbe said property, in wasting, damaging, destroying, and injuring tbe same was wrongful, unlawful, and willful and without probable cause.

"We are of opinion tbat bis Honor erred in bolding tbat there is no evidence of a want of probable cause. Tbe plaintiff is not *513proceeding in tbis case against the sheriff, but against the defendant upon the elementary principles of common law to 'recover such damages as he sustained for the unlawful seizure and appropriation of his property. R. R. v. Hardware Co., 138 N. C., 175.

Having been deprived of his property by process of law wrongfully and illegally sued out-by the defendants, the law would be unjust to itself as well as to the plaintiff if it did not restore to him that of which he has wrongfully been deprived, or monetary damages in lieu thereof. Perry v. Tupper, 71 N. C., 386; Sneeden v. Harris, 109 N. C., 357; R. R. v. Hardware Co., 135 N. C., 73; R. R. v. Hardware Co., 138 N. C., 175; R. R. v. Hardware Co., 143 N. C., 54.

■ Taking all the evidence in this case, we are of opinion that in any view of it, if believed by the jury, a want of probable cause is made out. The ground upon which the attachment was issued is that .Tyler had left the State and become a citizen of South Carolina. The evidence tends to show that he lived in Kelford, Bertie County, early in 1903; that he gave up his business in Kelford and moved over into Northampton County; that he was cultivating a crop and lived on the Edgar Powell farm in Northampton County.

In July, 1903, the plaintiff had laid by his crop and left his family in North Carolina and went to South Carolina on a tern-, porary visit and remained not quite two months. He testifies that his family did not expect to follow him to South Carolina, his furniture had not been packed for shipment; that he was down there temporarily at the instance of the Atlantic Coast Lumber Company; his family remained in Northampton County. In September he heard that his crop had been attached, and he came back to look after it.

The defendant’s evidence tends to prove that the witness Baxter was a clerk of the defendant in Portsmouth, Va.; that he was sent down to look after the debt which the plaintiff owed the defendant. Baxter testifies: “I made inquiry as to the residence of Tyler before the attachment was issued. I went to Kelford and was there informed that he had gone to South Carolina to *514work and make bis borne; beard tbis from several men. Tbey told me be bad packed up bis furniture, and bis family was going to join bim in South Carolina. I went back to Norfolk and reported to Mr. Maboney.” Baxter further testified: “I did not go to see Mrs. Tyler nor any of Mr. Tyler’s relatives to find out if he bad moved to South Carolina. I acted on- what was told me on the street. I was hot after our money, but did not get it.”

Maboney testifies as to what Baxter reported to bim, and that bis attorney, Martin, advised bim to get out an attachment, as Tyler was a nonresident of tbis State; that be believed Tyler was a nonresident and bad permanently left the State to live in South Carolina.

In Mahoney v. Tyler, supra, it is held that a person leaving the State to seek work, for the purpose of prospecting, does not sustain an attachment on the ground that the defendant was a nonresident.

The evidence shows that Baxter, the defendant’s agent, made no inquiry in Northampton County, where the defendant’s family resided ;• that be did not go to bis residence; that be made no inquiry of persons who were supposed to know anything about the plaintiff; that be does not give the names of the persons who told bim in Kelford; that be relied on a mere street rumor, and upon such rumor the defendant and bis counsel acted and issued an attachment and practically destroyed the plaintiff’s crop. If these facts are true, and the jury should find them to be true, it establishes a want of probable cause, in our opinion.

The question of probable cause in cases like tbis is a mixed one of law and fact, leaving for the jury to determine from the evidence as a matter of fact whether the circumstances of the case show the cause to be probable or not probable; but whether, supposing them to be true, tbey amount to a probable cause, is a question of law for the judge. Wilkinson v. Wilkinson, 159 N. C., 265.

As is shown in Mahoney v. Tyler, supra, it is not necessary to prove actual malice in tbis case in order to recover substantial damages, but it is necessary to prove a want of probable cause. *515Tbe effect of proving malice would be to authorize tbe jury, in case they saw fit, to award punitive damages. But it is not necessary to consider this question', as punitive damages are disclaimed in- specific terms in the brief of the counsel for the plaintiff, wherein it is said:

> “No question of punitive damages is raised. It is simply a question of recompensing the plaintiff for property they seized and have not accounted for.”

The judgment of nonsuit is set aside and a new trial ordered.

Eeversed.