are governed by ordinary rules. Special damages, as costs and fees 329 diamonds, is not excessive. Doane v. Anderson (Sup.) 15 N. Y. Supp. 459. N. W. 914. 327 And expense for procuring sureties on bail bond, Wheeler v. Hanson, 328 State v. Andrews, 39 W. Va. 35, 19 S. E. 385; Bradley v. Borin, 53 Kan. 329 Slater v. Kimbo, 91 Ga. 217, 18 S. E. 296. SAME DISTINCTION FROM FALSE IMPRISONMENT. 202. Malicious prosecution and false imprisonment are two different causes of action, composed of different elements. They are not incompatible, however, but may arise out of the same state of facts, and be the basis of the same action. 332 False imprisonment is a radically different wrong from malicious prosecution. 330 Recovery of damages in an action for false impris onment is no bar to an action for malicious prosecution.331 False imprisonment is a direct injury to the freedom of the person, and, at common law, was an action of trespass. Malicious prosecution may be entirely independent of personal interference, and always gives rise to an action on the case. The very statement of the facts in the case of false imprisonment shows the acts involved to be illegal.333 The ground of malicious prosecution is the procuring to be done what upon its face is, or may be, a legal act, from malicious motives, and without probable cause. That there should have been an original legal proceeding of some kind, and that the plaintiff should have succeeded in it, is an essential element peculiar to malicious prosecution.335 The coincidence of malice and want of probable cause is also peculiar to malicious prosecution. Malice is never 330 Brown v. Chadsey, 39 Barb. 253. 334 331 Guest v. Warren, 23 Law J. Exch. 121; ante, p. 323, note 116, “Judgment as a Bar." 332 Ante, p. 604, "Trespass under Malicious Prosecution"; Brown v. Chadsey, 39 Barb. 253. 333 Imprisonment caused by a malicious prosecution is not false unless without legal process or extrajudicial. Nebenzahl v. Townsend, 61 How. Prac. 356; Murphy v. Martin, 58 Wis. 276, 16 N. W. 603; Colter v. Lower, 35 Ind. 285; 7 Am. & Eng. Enc. Law, 663, 664, and cases cited; Turpin v. Remy, 3 Blackf. 210; Mitchell v. State, 12 Ark. 50, and cases cited; 1 Chit. Pl. § 133. 334 Johnstone v. Sutton, 1 Term. R. 510; Nebenzahl v. Townsend, 61 How. Prac. 356. Where an arrest is made for the purpose of enforcing the payment of a debt, malicious prosecution, and not false imprisonment, is the proper remedy. Mullen v. Brown, 138 Mass. 114; Herzog v. Graham, 9 Lea (Tenn.) 152; Woodward v. Washburn, 3 Denio, 369. 335 Everett v. Henderson, 146 Mass. 89, 14 N. E. 932. properly an essential element of false imprisonment; 336 and probable cause, only when there has been an arrest without warrant, and then as matter of the defendant's, and not of the plaintiff's, case. Accordingly, advice of an attorney is no defense to false imprisonment; warrant of arrest, in perfect form, is not to malicious prosecution, 339 On the other hand there is no incompatibility between the two causes of action. 337 The same state of facts may constitute both false imprisonment and malicious prosecution, as where, on an affi davit falsely charging perjury, the arrest and incarceration in jail of the accused is a malicious prosecution. If the affidavit is made without probable cause, his incarceration thereunder in jail is false imprisonment.338 The two causes of action arising out of the same state of facts may be united in the same pleading, and the plaintiff may recover under either.3 And it has been held that a complaint for either cause of action may be converted into the other by amendment.3 Under a declaration for the one cause of action, however, no recovery can be had for the other.341 In Johnson v. Girdwood, 34 Judge Pryor said: "If the plaintiff's characterization of his action as for false arrest and imprisonment be correct, the complaint cannot stand a moment. Under our system of procedure, a plaintiff's right of recovery depends, not upon the name he gives his action, or the classification to which he subjects it, but upon wheth 340 * 336 Carey v. Sheets, 60 Ind. 17; Coller v. Lower, 35 Ind. 285; ante, p. 430; Johnson v. Bouton, 35 Neb. 898, 53 N. W. 995; Hobbs v. Ray (R. I.) 25 Atl. 694; Comer v. Knowles, 17 Kan. 436. 337 14 Am. & Eng. Enc. Law, 17, note 1, citing cases. 338 Weil v. Israel, 42 La. Ann. 955, 8 South. 826. Compare with Sloan v. Schomaker, 136 Pa. St. 382, 20 Atl. 525; Lueck v. Heisler, 87 Wis. 644, 58 N. W. 1101. 339 Bradner v. Faulkner, 93 N. Y. 515; Marks v. Townsend, 97 N. Y. 590; Anderson v. How, 116 N. Y. 336, 22 N. E. 695; Barr v. Shaw, 10 Hun, 580; King v. Ward, 77 Ill. 603. The plaintiff has, however, been required to elect between them. Nebenzahl v. Townsend, 61 How. Prac. 353. 340 Spice v. Steinruck, 14 Ohio, 213; Painter v. Ives, 4 Neb. 122; Truesdell v. Combs, 33 Ohio St. 186; Steel v. Williams, 18 Ind. 161, 341 Hobbs v. Ray (R. I.) 25 Atl. 694; Herzog v. Graham, 9 Lea (Tenn.) 152; Brown v. Chadsey, 39 Barb. 253; King v. Johnston, 81 Wis. 578, 51 N. W. 1011. Compare Bauer v. Clay, 8 Kan. 580; Wagstaff v. Schippel, 27 Kan. 450. 342 28 N. Y. Supp. 151, 152. er, on the facts exhibited, he is entitled to any legal redress. With us, all suits are special actions on the case, and if the facts show a right to relief the plaintiff will not be turned out of court because of a technical error in scientific nomenclature." MALICIOUS ABUSE OF PROCESS. 203. An action for damages lies for the malicious abuse of lawful process, civil or criminal, even if such process has been issued for a just cause, and is valid in form, and the proceeding thereon was justified and proper in its inception, but injury arises in consequence of abuse in subsequent proceedings. The leading case on this subject is Grainger v. Hill,344 where the defendant was held liable, not for putting process of arrest in force, but for abusing it for an object not within its scope. The officer arrested the owner of a vessel on civil process, and used such process to compel the defendant to give up his ship's register.345 Damages were recovered, not for maliciously putting the process in force, but for maliciously abusing it; leading the person arrested to do some collateral thing, which he could not lawfully be compelled to do.346 A common form of abuse of process is excessive attach 343 As to mandamus to prevent successful use of information obtained by abuse of process, see ante, p. 351, "Remedies." See, also, Rosenthal v. Circuit Judge, 98 Mich. 208, 57 N. W. 112. 3444 Bing. N. C. 212; Twilley v. Perkins, 77 Md. 252, 26 Atl. 286. Further, as to abuse of criminal process: Page v. Cushing, 38 Me. 523; Jenings v. Florence, 2 C. B. (N. S.) 467; Smith v. Weeks, 60 Wis. 94, 18 N. W. 778; Baldwin v. Weed, 17 Wend. 224; Carleton v. Taylor, 50 Vt. 220; Mayer v. Walter, 64 Pa. St. 283. As to abuse of capias to collect fees: field (N. H.) 20 Atl. 284. Ban Small v. Moody v. 345 Barnett v. Reed, 51 Pa. St. 190. Excessive attachment: Deutsch, 85 Mo. 237; Savage v. Brewer, 16 Pick. (Mass.) 453. So, an officer may become a trespasser ab initio by staying too long in a store where he has attached goods. Rowley v. Rice, 11 Metc. (Mass.) 337; Williams v. Powell, 101 Mass. 467; Davis v. Stone, 120 Mass. 228. Et vide Cutter v. Howe, 122 Mass. 541; Malcom v. Spoor, 12 Metc. (Mass.) 279; Esty v. Wilmot, 13 Gray (Mass.) 168. 846 Page v. Cushing, 38 Me. 523; Johnson v. Reed, 136 Mass. 421; Holley ment.3 347 "But the mere giving of notice by a third person to a debtor not to pay the creditor the amount due him under a contract is neither the use nor abuse of legal process; and no action can be maintained by the creditor against the person giving the notice, for the delay in the payment, and the expense of the lawsuit which he was compelled to bring against the debtor, in consequence of such notice, though it may have been given maliciously and vexatiously." 248 The authorities are not agreed as to what constitutes the essential elements of this action. Seizure of property is not an essential of the action.349 Such a definition would fail to distinguish between malicious abuse of process and malicious prosecution, and seems to depend on the distinction that the action is case, and not trespass.350 Another view, and perhaps one more in harmony with the modern spirit of the law of torts, is to distinguish malicious v. Mix, 3 Wend. 350. Abuse of process is its perversion. Sharswood, C. J., in Mayer v. Walter, 64 Pa. St. 283. One who, after placing a valid writ of restitution in the hands of an officer, voluntarily assists in removing the property, is liable for such injury to the property as amounts to an abuse of process. Murray v. Mace (Neb.) 59 N. W. 387. So, a sheriff who, under a writ, exposes to inclement weather the daughter and household goods of an unsuccessful defendant in a suit to try title to land, to gratify malice of a successful plaintiff, is liable, and the plaintiff also, if he ratify or authorize such conduct. Casey v. Hanrick, 69 Tex. 405, 6 S. W. 405; Rogers v. Brewster, 5 Johns. 125. 347 Zinn v. Rice, 37 N. E. 747. And, further, as to wrongful attachment, see Woessner v. Wells (Tex. Civ. App.) 28 S. W. 247; Imperial Roller Milling Co. v. First Nat. Bank of Cleburne (Tex. Civ. App.) 27 S. W. 49; Strauss v. Dundon, Id. 503. 348 Norcross v. Otis, 152 Pa. St. 481, 25 Atl. 575; Potts v. Imlay, 4 N. J. Law, 377. 349 Therefore, a mere notice by a stranger to a debtor not to pay a creditor, in consequence of which the creditor is compelled to sue to recover his money, is not sufficient to support an action for damages. In such a case, the only loss is the delay in payment, which is compensated by interest. Norcross v. Otis, 152 Pa. St. 481, 25 Atl. 575. However, though claimant was not deprived of the goods levied on, nor hindered in selling them in the regular course of business, he is entitled to damages for any injury to his credit. Birch v. Conrow, 161 Pa. St. 118, 28 Atl. 1003. 350 Where the act is an immediate wrong against all forms of law, trespass is the remedy. Where the process is legal, but used in an oppressive man |