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not supported by the better reason, or are sideration of the jury. No reason appears cases in which the jury make the view in the for holding that the court erred in limiting capacity of viewers. For the reasons, there- the effect of a view which it might have prefore, that the judgment is contrary to the vented." manifest weight of the evidence, and that the If what the jury sees is evidence, then it court erred in its charge to the jury on the will be impossible to get the evidence into subject of the view, the judgment will be re- the record. This has been a perplexing versed, with costs, and the cause be remanded question. In Omaha Walker, 17 the for further proceedings according to law.''

court says:

“Where this is permitted it is In the case of Machader v. Williams, 16 the Su. difficult to review the judgment as being preme Court of Ohio held that the view by against the weight of evidence, because all the jury of the property which is the subject the evidence before the jury—the view of the of litigation, or of the place where a material premises-cannot from the nature of the case fact occurred, which may be ordered in a civil be incorporated in the record.” This is action, under Section 5191, Rev. Stat., is logical, because, if what the jury sees is evisolely for the purpose of enabling them to ap- dence, then a bill of exceptions, or a caseply the evidence offered upon the trial. The made, which contains all of the evidence, is court said: "The subject of the effect to be impossible. This theory would either abolish given to the observations of juries upon view appellate proceedings, or views by jury, in has evoked much apparent conflict of opinion.

such cases. The Supreme Court of Indiana An extended collection of cases

on the sub

experienced the same trouble, 18 but after ject may be found in Thomp. Trials, Secs. many years and much conflict the court was 875-902, inclusive, and that author's conclu- compelled to submit to what it considered the sion is relied upon for a reversal of the judg- irresistible power of reason, and to overrule ment in this case. That conclusion is, how- its former decision, and to say that although ever, seriously discredited by the fact that the a view had been taken by the jury, still, if subjective effect of the author's consideration the bill of exceptions disclosed nothing which of the cases was to lead him to deplore 'the had taken place at the view, and contained effect which is produced upon the law by the the statement that it contained all the evieffort of trained minds to reduce its rules to dence, that the court would believe the rescientific precision.' A treatise upon the cord and hold that it did in fact contain all subject, written for the purpose of carrying of the evidence. There is another vexatious that process of reduction yet further, might question; it is this: If what the jury sees well show that cases apparently in conflict

is evidence, and if the judge does not accomare not really so, because some are civil ac- pany the jury, he does not get all the evi. tions and others proceedings to appropriate dence, and is in no position to review, affirm property in the exercise of the right of emi- or set aside their verdict. This is where the pent domain, and because the conclusions Supreme Court of Wisconsin fell down.1 of courts have been affected by a variety of

The Wisconsin case was one in equity. The statutory provisions. In this case the view of verdict of a jury was therefore only advisory, the property was ordered by the trial court and it was competent for the court to find pursuant to Section 5191, Rev. Stat. The the facts against the findings of the jury; terms of the statute leave it to the discretion but, the court says, “to do this the court of the trial judge whether the view shall be must have all the evidence before it, and had or not.

Such has been the uniform where the jury viewed the premises before course of decisions. It is not to be supposed rendering their verdict the court may order that the legislature intended that the observa

new trial.” The weakness of this opinion tions of juries upon the view should have pro

is that the verdict was only "advisory," and bative effect in determining the issues of fact

if the court did not wish to follow it he was joined between the parties, and yet leave to

not bound to. The court did not in this case the judge discretion to prevent the taking of

want to follow it, and so he guessed that the the view. It is the right of the party to have jury had seen something, but he was not inall competent evidence submitted to the con- 17 17 Neb, 432.

18 Evansville v. Cochran, 10 Ind. 560. 16 43 N. E. Rep. 324.

19 Fraederich v. Fliette, 25 N. W. Rep. 28.


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formed that they had. The record says: dence. 2d. The judge need not accompany “We cannot know to what extent the finding the jury on a view. 3d. A prisoner on trial for the plaintiff on the above question is need not accompany the jury. 4th. What the based upon what the jury saw.” Therefore, jury sees need not go into a bill of exceptions, not knowing what the jury saw, the court 5th. A view is always a matter of discretion imagined that the jury saw something, which with the trial court. Views should not be "something" was evidence, and being evi- permitted, except in cases where maps and dence was very prejudicial, and hence the plats are not sufficient to explain, and where verdict should be set aside. Such logic is the evidence is difficult to understand or to unaccountable, in view of the fact that the apply. And then the judge should caution same court the year before had rendered the the jury in advance. At the end of the trial decision of Washburn v. Ry. Co.20 in which the judge should instruct the jury, whether the case of Close v. Samm was cited with asked to or not, that what they see is not eviapproval. Where will such a doctrine lead dence, and that the view is to be disregarded us? If what the jury sees is evidence, then by them, except so far as it enables them to of course the judge must accompany the jur- better understand the evidence. org. How can the judge pass on a motion for a new trial when he has not heard or seen all the evidence? Therefore the judge must

ABUSE OF PROCESS-WHAT CONSTITUTESaccompany the jury in making the view, if

BANKS AND BANKING-SET OFF. what the jury sees is evidence, and a motion

DOCTER v. RIEDEL. for a new trial is to be filed.

What can the Prisoner do? Whose Evi- Supreme Court of Wisconsin, April 30, 1897, dence? — The criminal phase has no more The holder of a judgment note, the maker of which sense to it than the civil pbase.

What sense

he knows is solvent, may, without notice or demand, is there in a prisoner going out with a jury to

have judgment entered and execution levied without

being liable to the maker for malicious abuse of make a view ? His attorney could not cross

process. examine the landscape, nor explain anything,

WINSLOW, J.: This is an action for the abuse and if the prisoner should go the judge ought

of process. The complaint, after alleging the to go. What right bas the judge to be ab- copartnership of the plaintiffs, and the corporate sent from the prisoner while the jury is im

character of the defendant the German-Amerbibing "evidence"? The prisoner may want

ican Bank, alleges that on the 31st of August


1895, the plaintiffs executed to the bank their to take some exceptions. And if what the

judgment note in the sum of $5,000, payable on jury sees is evidence, whose evidence is it?

demand, with interest. A copy of said note is atIs it testin:ony in chief, or in the nature of tached, and a warrant of attorney authorizes any rebuttal? If it is evidence it must tend to attorney in any court of record to appear in such prove something on one side or the other,

court, “in term time or vacation, at any time and how is a party to find out if there be evi

hereafter, and confess a judgment, without proc

ess, in favor of the holder of this note, for such dence, and how is he to find out whether it is

amount as may appear to be unpaid thereon, topro or con, and how can he meet it with

gether with costs, and to waive and release all other evidence and thus get a fair trial? The errors which may intervene in any such proceedState of Oregon seems to have answered the ings, and consent to immediate execution on said question. 2

judgment.” The complaint further alleges that

plaintiffs also executed to the bank a real estate To recapitulate, we assert that: 1st.

mortgage as security for the payment of said pote. What the jury sees on a view is not evi

and that they had on deposit in such bank on the

11th of October, 1895, the sum of $850; that they 20 Supra.

were engaged in the business of merchant tailor21 State V. Ah Lee, 8 Oreg. 214. In that case

ing immediately adjoining the Plankinton House, the court gravely says: “We consider the bet.

in the city of Milwaukee, with a stock of goods of ter doctrine to be, that the failure of he ac

more than $13,000 in value, and that their total cused to be present when the jury were making their view, is no ground of error. We are unable to

assets exceeded $13,000; that their liabilities, insee what good his presence would do, as he could

cluding the note, did not exceed $13,000; that neither ask nor answer any question, nor in any way

they were perfectly solvent, and able to pay said interfere with the acts, observations, or conclusions note on demand, to the knowledge of defendants, of the jury. He would only have been a and were doing a large and profitable business, spectator while there."

and had many customers, and their standing in

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the commercial world was first-class, and their credit good; tbat on the 11th of October, 1895, the defendant bank and the defendant Riedel conspired together for the purpose of destroying plaintiffs' credit and business, and without any demand or notice to plaintiffs, having first assigned said note to the defendant Riedel, caused a judgment to be entered in the circuit court for Milwaukee county on said note, and thereafter, about the bour of 10 o'clock in tbe evening of said day, caused an execution to be issued upon said judgment, and to be placed in the hands of the sheriff of Milkaukee county, who proceeded, about 11 o'clock P. M. of said night to forcibly break into the store of plaintiffs, through the door leading from the hotel waiting room, and then and there levied on the entire stock of the plaintiffs. The complaint further alleges that the note was assigned to defendant Riedel without consideration; that the levy was made at the unseasonable hour aforesaid without any notice to plaintiffs, and with the purpose of injuring their credit and reputation, and that they had been at all times reads and willing to pay said note upon demand; and that they did, immediately upon being notified of said judgment and levy, pay the same to said defendants, and procured said levy to be released and said judgment satisfied. All of said acts of defendants are alleged to have been done maliciously, and with the intent of injuring the plaintiffs' credit and business reputation. The complaint further alleges that plaintiffs were put to great expense in obtaining the dissolution of said judgment and the release of said levy, and put to great inconvenience and expense, to their damage in the sum of $10,000. To this complaint a general demurrer was interposed, which was overruled, and the defendants appealed. The complaint charges, in brief, that the defendants, without previous demand, entered judgment upon a judgment pote at 10 o'clock at night, and immediately issued execution thereon, and broke into the plaintiffs' store, and levied upon their stock of goods, with the malicious intent thereby to injure and destroy the plaintiffs' business credit and reputation, and that the plaintiffs, on being informed of the seizure, immediately paid the judgment and procured release of the levy. Plainly, the complaint does not state a case of malicious prosecution of a civil action, because the action ended favorably to the present defendants; thus demonstrating that there was not only probable, but perfect, cause for bringing it. O'Brien v. Barry, 106 Mass. 300. It is claimed, however, that a cause of action is stated for abuse of process. The authorities upon the question of what will constitute a cause of action for abuse of process are certainly in a state of some confusion, and frequently this action seems to have been confounded with actions for malicious prosecution, although they are essentially different actions. The leading case on the subject, perhaps, is the case of Grainger v. Hill, 4 Bing. N. C. 212. Here the plaintiff was arrested at a time when he

could not procure bail, and kept under arrest until he surrendered a ship's register. The capias was a valid writ, regularly issued upon a good cause of action, but it was used to effect an ulterior and illegitimate purpose; and for that use there was held to be a remedy in tort, regardless of the question whether the original action was determined, or whether it was founded on probable cause. So, where an execution is issued upon a judgment already paid, or for an excessive amount, and goods are levied upon, a remedy is given. In these and similar cases, as said by an eminent text writer, “it is enough that the process was willfully abused to accomplish some unlawful purpose. ”Cooley, Torts (20 Ed.), pp. 220, 221. This is probably the test, namely, whether the process has been used to accomplish some unlawful end, or to compel the defendant to do some collateral thing which he could not legally be compelled to do. Johnson v. Reed, 136 Mass. 421. Applying this test to the case before us, we do not discover any cause of action stated. The process of the court has been used to collect a valid debt, and in precisely the manner that the plaintiffs here consented to its use by the judgment note. By this instrument the plaintiffs authorized its holder to enter judgment and issue execution at any time, and this is all that has been done. The defendants seem to bave acted strictly within their right. The general rule is that, where one exercises a legal right, bis undisclosed motives are immaterial. Phelps y. Nowlen, 72 N. Y. 39; Raycroft v. Tayntor, 68 Vt. 219, 35 Atl. Rep. 53. We see no reason why the rule should not apply here. The defendants ving collected their debt in a way which they were authorized to use, we cannot punish them for their secret motives. The plaintiffs had an open account at the bank, upon which there stood $850 to their credit, and they claim that this should have been applied upon the note. Whether the bank had a right to make such an application without consent may be doubtful, but, whetber it could do so or not, we see no reason for holding that it was obliged to do so. Order reversed and action remanded, with directions to sustain the demurrer.

NOTE.-The decision of the court in the principal case is antagonized by Marshall, J., one of its members, who dissented in a very well reasoned and plausible opinion. The effect of the opinion of the court, as stated by him, is, that if a person is in the mercantile business, and unquestionably solvent, to the knowledge of another to whom he is indebted on a judgment note, the circumstances being that such other knows he can obtain payment of such note on demand, he may, notwithstanding, with the malicious purpose to destroy the credit of his debtor and break up his business, enter judgment on such note at 10 o'clock at night, immediately issue an execution thereon, and, in the absence of such debtor (his place of business being closed for the night), cause an off. cer to break into such place and take possession of such debtor's stock in trade, without having made any demand for payment of the debt, or demanding entrance to the store, or giving the debtor any notice whatever that immediate payment of the debt is required, thereby maliciously causing unnecessary and serious pecuniary injury to such debtor, and that such conduct constitutes no wrong, or, it it does, it is without legal redress. II, says he, there is no remedy for such an official outrage it must stand as a striking example of the insufficiency of our system of jurisprudence to deal with a class of serious malicious injuries that may break down a prosperous business, involve its owner in utter ruin, turn his condition of solvency to one of insolvency and make him a beggar in a day. In the opinion of the dissenting judge the reasoning upon which the decision rests leaves such a wrong without a remedy as to be of itself an infallible test of its fallacy. He then proceeds to expound bis view of the controverted question in substance, as follows: Actionable injuries growing out of what is commonly called "abuse of process" consists of two classes, one where the process of the court is not used for its legitimate purpose, but to accomplish by coercion some outside object not within the proper use of the proc. ess, as in Grainger v. Hill, 4 Bing. N. C. 212, cited in the opinion of the court, where the injured party was arrested on a valid writ in order to coerce him into delivering a ship's register, which was entirely out. side of the legitimate purposes of the writ. My brethern test the complaint here solely by Grainger v. Hill and similar cases, and the elementary princi. ple that abuse of process, strictly so called, is the use of process regularly issued, to accomplish an unlaw. ful end, or to compel the defendant to do some collateral thing. Thereby the conclusion is easily reached that the complaint does not state a cause of action. But there is another class of malicious injuries grow. ing out of abuse of process, sometimes designated as "malicious misuse of process,” that has been, to my mind, entirely overlooked, to which class the case made by the complaint belongs, and within the rules of which a good cause of action is clearly stated. Such class includes the use of process to accomplish its legitimate object, but in a reckless, unnecessarily oppresssive way, with wrong intent to injure the person against whom the process runs. Such misuse is actionable, because of the unnecessary injury inflicted, and the motive of it. The two classes of injuries referred to are recognized in Mayer v. Walter, 64 Pa. St. 283, which is a very instructive case on the sub ject. The court there held in effect, as stated by Judge Marshall, that malicious abuse of process is where it is used for some unlawful object not wi hin its scope, but that malicious misuse of process may take place where no object but its proper and legiti. mate execution is contemplated. He also cites Rog. ers v. Brewster, 5 Johns. 125, as sustaining his view. The officer there had ample opportunity to execute bis writ by taking property that would not interfere seriously with the debtor's business. Instead of do. ing so, he took a horse from the team with which such debtor was at work, with intent to embarrass and injure bim. In deciding the case the court said: “The constable appears to have executed the warrant in an unreasonable and oppressive manner, and with the avowed and malicious design to harass and oppress the plaintiff. The oppression of an officer in the exe. ution of process is indictable, and a great abuse of the powers of a sheriff on execution has been held suffi. cient to make him a trespasser. If he be charged with a malicious and oppressive proceeding, a proper remedy for this abuse of power is a special action on the case, in which the malice and oppression must be made manifest. The seizing and selling of the horse in the case before us was without any just cause, so

long as other property was shown which would have raised the money with equal facility. It was there. fore a causeless and malicious proceeding. Where a ministerial otficer does anything against the duty of his office, and damage thereby accrue to the party, an action lies." To the same effect are Juchter v, Boehm, 67 Ga. 534; Snydacker v. Brosse, 51 Ill. 357. In Bilger v. Buchanan (Tex. Sup.), 6 S. W. Rep. 408, the officer and the execution plaintiff, who ratified the officer's act, were held liable for the malicious conduct of the latter in executing the writ in a hasty and oppressive manner at a time when it subjected defendant and his family to unnecessary hardship.

He also cites Smith v. Weeks, 60 Wis. 94, as sustain. ing his contention, and states the following proposi. tion as being, in his opinion, the principle governing this question at issue: If process to collect a judg. ment be executed in an unnecessarily harsh and oppressive manner, with a malicious purpose to injure the judgment debtor, such conduct constitutes an actionable wrong. In executing such a process the offi. cer must not be guilty of oppression or make use of greater force or violence than the thing requires. The New York Supreme Court has recently decided a case on the general subject of malicious abuse of a legal process (Dishaw v. Wadleigh, 44 N. Y. Supp. 207), and it is said to be the first in which the courts of that State bave had occasion to recognize malicious abuse of a legal process as a cause of action. This variety of tort, though of modern origin, is now well known in many jurisdictions. The case in New York is a good example of its kind. The defendant, an at. torney, having obtained an assignment of a debt owed by the plaintiff, and brought an action on it, sued out a subpæna against him, alleging that his testimony was material in the case. On the debtor's failing to appear, the attorney procured an attachment against him, by virtue of which he was arrested, brought into court, and made to pay a fine and costs. It then ap. peared that the debtor was not wanted as a witness; and it was afterwards shown that the attorney sued out the subpana only in the hope that he would be induced to pay the debt immediately, rather than take the trouble of appearing at the trial which was held at a considerable distance from his home. The jus. tice of allowing the debtor to recover the damage which he has suffered is evident; and the case well illustrates the principal point to be noticed with re. gard to this sort of tort. The creditor bad & perfectly good cause of action in the first place, on which he had a right to use, and had, in fact, obtained judg. ment before the bringing of this second suit. The justice or good faith of his claim, however, does not excuse his use of a legal process for a purpose for which it was not intended. In the ordinary action for malicious prosecution of a criminal charge, or the less well established action for maliciously bringing a civil suit (see 9 Harvard Law Review, 538), it is always necessary to prove that the first suit has been decided against the plaintiff in that suit before the second suit can be brought. Where the action is for abuse of a legal process, however, it is immaterial what has become of the original action. In most of the cases in the books, it will be observed that the question is not even whether the defendant improperly caused the process to issue, but whether be improperly used it for some purpose outside of its legal scope, as to extort money. Wood v. Graves, 1# Mass. 165. In this particular case, while the suit was an honest one, it was an abuse to sue out the subpæna at all. The money which was hoped to be procured was here lawfully due; but that is no more an excuse for the abuse of the subpæqa than it would be for threats of physical violence.

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The State of Missouri has a statute providing that in all actions where exemplary or punitive damages are recoverable, the petitioner shall state separately the amount of such damages sought to be recovered; and that in all actions wherein such damages are re. coverable and are allowed by the jury, the amount thereof shall be separately stated in the verdict.

This statutory provision would seem to be of doubtful utility and expediency. All the authorities concede that the feature of exemplary damages is il. logical in principle, and amounts to an importation of & section of the criminal law into the systein of civil rights and remedies. In common with most judges and writers who have discussed the subject, we be. lieve that the allowance of exemplary damages is a salutary adjunct of the administration of civil justice. But the theoretical anomaly of the rule is apt to crop out whenever it is subjected to the ordinary tests of logical consistency; and, therefore, we do not see how ang advantage is to be gained by a positive provision subjecting exemplary damages to exactitude of statement and analysis. There is a marked distinction in policy between provisions for the finding of specific facts by a jury, in lieu of or in addition to a general verdict, and the requirements of the statute in question compelling the separate specification of actual and punitive damages.

It appears that in a number of recent suits in the State of Missouri such statute has been passed upon by trial judges. Naturally the question bas therein arisen in a very urgent form whether, as matter of law, an award for exemplary damages may be validly based upon a finding of only nominal damages. The opinion of the trial courts thus far seems to be unanimous that exemplary damages may properly be founded upon nominal damages. We concur in the theoretical legitimacy as well as the practical wisdom of such ruling. The American Law Review of May. June, 1897, contains an article by its senior editor, Hon. Seymour D. Thompson, referring to and dissent. ing from these nisi prius decisions, and taking the broad ground that exemplary damages cannot "be bottomed upon nominal damages." The learned editor, with his usual careful scholarship, collates that various decisions pro and con upon the question involved. But in our judgment his conclusion against the validity of exemplary damages, without actual damages as a basis, amounts to little more than a dogmatic, personal opinion. He might, however, quite fairly retort that the judicial utterances upon the subject also consist pretty much of dogmatic con. clusions. On one side of the controversy may be cited Stacy v. Portland Pub. Co., 68 Me. 279 and Girard v. Moore, 86 Tex. 675, holding that where no actual dam. age is shown there can be no recovery of exemplary damages; and on the other, Railway Co. v. Sellers, 93 Ala. 9; Hefley v. Baker, 19 Kan. 9-12, and Wilson v. Vaugbn, 23 Fed. Rep. 229, holding to the contrary.

Upon principle we do not see why exemplary damages should not be predicable upon nominal damages in the same manner as upon actual damages. It is impossible to be logical or consistent throughout in dealing with this peculiar feature of civil law. The allowance of punitive damages in any civil case is essentially illogical. But, as the policy of the civil law -wisely from a atilitarian standpoint--does countenance the awarding of mere smart money, as punish. ment is certain cases, the tbing to be aimed at is sim.

ply to be logical and consistent within the limited scope of this exception to general rules. And, there. tore, where the jury finds that a tortious injury has been committed, although no pecuniary damage has been suffered, it would seem within the essential spirit of the system of exemplary damages to permit a substantial recovery. As we remarked on a former occasion, in discussing the subject of the “Disposition of Punitive Damages” (April 30th, 1897):

“Everybody knows how difficult it is to procure the enforcement of criminal laws against smaller offenses, especially in large cities, because of the volume of more important matters pressing upon the attention of public prosecutors. For this reason we favor the policy, wherever practicable, of punishing petty acts of misdemeanor by the imposition of pecuniary pen. alties, suable for by persons aggrieved, either in whole or in part for their own benefit. It is very important that rights of substantial recovery should exist in the cases of torts, where often the actual indignity is atrocious but the pecuniary damage inconsiderable or nominal. The doctrine of exemplary damages sup. plies an important adjunct to the criminal law, as a deterrent from acts of moral turpitude and a preventive of retributive violence."--Nero York Law Journal.

STATE TAXATION OF INTERSTATE BRIDGE. In the case of Henderson Bridge Co. v. Commouwealth of Kentucky, 17 Sup. Ct. Rep. 532, the United States Supreme Court rendered a decision on a ques. tion relative to interstate commerce wbich may prove far-reaching in its consequences. The main issue was as to the right of a State to tax the property of a company wbich by virtue of a State charter owned and operated bridges over the Obio river, connecting the States of Kentucky and Indiana. It appeared that the company derived its profits from outsiders who used the bridge in the transaction of interstate business and paid tolls for this privilege. The court took a technical view of this fact and decided that as it was not the company but its customers who were en. gaged in interstate commerce, a tax levied on the company by the State was legal and valid. Mr. Jus. tice White in a dissenting opinion, speaking for three other justices, forcibly combats the position taken by the majority of the court and maintains that inas. much as the interstate commerce was carried on over the bridge, the company owning the bridge and deriv. ing its income from tolls paid by the carriers of such commerce was engaged in interstate commerce, and therefore that the tax on its property was unconstitutional and void. He holds, apparently with much reason, that the contention of the majority of the court is a mere distinction without a difference. The consequences of this decision, if the rule laid down is extended in its application to other means of interstate commerce, may well be disastrous. To quote from the dissenting opinion: “A large portion of the interstate commerce business of the country is carried on by freight lines. These lines arrange with the railways for transportation, pay them a charge or toll and upon this basis afford the public ingreased business facilities. Under the supposed distinction all this interstate commerce traffic ceases to be such, and the whole of the gross receipts become taxable in every State through which the business passes. The freight lines do not transport the merchandise; the railways do. Therefore, the receipts of the freight lines as to such lines are not interstate commerce receipts.” The same reasoning would seem to apply to sleeping-car companies and express companies.-Yale Law Journal.

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