ISLEY v. BRIDGE Co. charge you to answer the first issue 'No.'" The Court declined to give this special instruction, and defendant excepted. The only theory of negligence presented by the plaintiff was that the chain suspended from the trolley and used in moving heavy pieces of iron had not been occasionally annealed, in consequence of which it had become crystallized, which caused it to break and drop the iron upon plaintiff's leg. The testimony of Albright and Turrentine, plaintiff's witnesses, tends to prove that the use of chains in lifting heavy weights tends to crystallize the links, or some of them; that the method used to prevent this is by annealing the metal, and that this chain had become crystallized. There is no other evidence of negligence, and plaintiff does not undertake to account for the breaking of the chain upon any other theory. The defendant offered evidence tending to prove that the broken link had not become crystallized and that the occurrence was an accident and was not occasioned by any negligence of its agents. In presenting defendant's contentions the only charge the Court gave was as follows: "If an inspection could not have discovered any defect in the chain, that is, would not have discovered that the chain had become crystallized and brittle, if it was crystallized, and liable to break in its use, and if you should fail to find from the evidence that it was necessary to anneal the chain, or that if the chain had been annealed it would not have broken, you will answer the first issue 'No.'" It is contended that the defendant's prayer for instruction was inferentially given. This is not sufficient. The Court should have given the prayer definitely and with certainty. The defendant was entitled to that, for it is plain to us that if the chain had not become crystallized, the occurrence was an accident, "an event from an unknown cause," which rea ISLEY v. BRIDGE CO. sonable care could not guard against. There is no evidence that the link was worn so badly as to be dangerous, or that the chain was of inferior quality, but the case was tried upon the theory that defendant by its negligence in not having it properly annealed had allowed the metal to become crystallized. His Honor declined to set aside the finding upon the issue of damages, upon motion of the defendant, upon the ground that the amount was excessive, but reduced the amount to $1,500. The plaintiff tendered judgment for $2,000, which the Court refused to sign, and plaintiff excepted and appealed. This must have been an inadvertence upon the part of the able Judge who tried this case. In view of the dispo sition we have made of the defendant's appeal a new trial is necessary, but we deem it proper to say that in this State Judges of the Superior Courts have no power to reduce verdicts without the consent of the party in whose favor the verdict is rendered. Shields v. Whitaker, 82 N. C., 523. When the trial Judge thinks an injustice has been done, it is his duty to set aside the verdict, and he may set it aside as to damages either excessive or inadequate. Benton v. Collins, 125 N. C., 83. Let costs of defendant's appeal be taxed against plaintiff and costs of plaintiff's appeal be taxed against defendant. New Trial. RAILROAD Co. v. HARDWARE CO. RAILROAD COMPANY v. HARDWARE COMPANY. (Filed November 13, 1906). Malicious Prosecution-Abuse of Process-Profits-Measure of Damages-Evidence-Wrongful AttachmentProbable Cause-Advice of Counsel. 1. In an action for damages growing out of an attachment of plaintiff's cars, alleging malice and want of probable cause and that the attachment of ten cars was excessive and an abuse of process of the Court, evidence of profits which the plaintiff might have made from hiring its cars was properly excluded as speculative damages. 2. The true measure of damages in such a case is the interest upon the value of the cars, increased or diminished, as the case might be, by the difference between the deterioration of the cars if in daily use, and their deterioration while wrongfully tied up, provided plaintiff could not have avoided injury from the attachment by giving bond and retaining possession of its cars. 3. In an action for damages for alleged wrongful and malicious attachment of plaintiff's cars, the Court erred in refusing to admit the testimony of the agent of the company, which was surety on the prosecution bond in this action, that for the payment of $10 it would have signed a replevy bond to secure release of the cars attached. 4. In cases of contract, as well as in tort, it is generally incumbent upon an injured party to do whatever he reasonably can to improve all reasonable and proper opportunities to lessen the injury. He must not remain supine, but should make reasonable exertions to help himself, and thereby reduce his loss and diminish the responsibility of the party in default to him. 5. In an action for damages for alleged wrongful and malicious attachment of plaintiff's property, where the general manager of defendant testified that the party who bought the goods told him that they were for the use of and bought for the account of plaintiff; that he had no reason to disbelieve this statement; that the former action was instituted in good faith, believing the present plaintiff owed the debt for which the property was attached; that he submitted all the facts to his counsel and acted upon his advice, and that he had no idea what property the Sheriff had attached: Held, that the Court erred in charging the jury that if they believed the evidence they would find that the attachment was issued without probable cause. RAILROAD Co. v. HARDWARE CO. 6. Where the defendant laid all the facts before his counsel and sued out the attachment under his advice, this is evidence to rebut the allegation of malice. 7. Where the officer levied an attachment on an excessive quantity of property, the plaintiff in the attachment is not liable for the abuse unless he in some way advised, directed or encouraged such action. 8. In an action for malicious prosecution, it is necessary to show (1) malice, (2) want of probable cause, (3) and that the former proceeding has terminated. In an action for abuse of process, it is not necessary to show either of these three things, but two elements are necessary: first, an ulterior purpose; second, an act in the use of the process not proper in the regular prosecution of the proceeding. ACTION by Pittsburg, Johnstown, Ebensburg and Eastern Railroad Company against Wakefield Hardware Company, heard by Judge Fred Moore and a jury, at the August Term, 1906, of the Superior Court of GUILFORD. This case was here, 135 N. C., 73, when a demurrer for misjoinder was sustained because the surety on the attachment bond had been joined as defendant. It was again here, 138 N. C., 174, when a demurrer to the complaint was overruled. The defendant had instituted an action against the Coke and Coal Company, a corporation of this State, for the recovery of $415 for car material, and joined the plaintiff herein, a railroad company incorporated in Pennsylvania, as co-defendant. The two companies had at that time the same officers and nearly the same stockholders, and the material had been used on the latter's cars. The complaint alleged that the material was bought for said railroad company, in fact, as an undisclosed principal. In said attachment ten of the defendant's cars were attached, and it not offering to give bond, the said ten cars were held two years, when the attachment was dissolved. This action was brought for damages, alleging malice and want of probable cause and that the attachment of the ten cars was excessive and an abuse of the process of the Court. Both plaintiff and defendant appealed. RAILROAD CO. v. HARDWARE Co. J. T. Morehead, W. H. Carroll and Scott & McLean for plaintiff. Taylor & Scales for defendant. PLAINTIFF'S APPEAL. CLARK, C. J., after stating the case: The plaintiff sought to show that for the ten cars attached it should recover what the cars would have earned by way of rental or car toll. It was in evidence that the plaintiff's road is only seventeen miles long, but that it owns a large stock of cars and its principal business was the hiring or mileage of its freight and coal cars used on other roads, in short, as its counsel somewhat felicitously expressed it, its chief business was that of a "railroad livery-stable"-hiring out conveyances. His Honor properly excluded the evidence of profits which the plaintiff might have made for hiring its cars, because that would be speculative damages. Sharpe v. Railroad, 130 N. C., 614. The true measure of damages is the interest upon the value of the cars, increased or diminished, as the case might be, by the difference between the deterioration in the cars, if in daily use, and their deterioration while wrongfully tied up, provided, of course, the plaintiff could not have avoided all injury from the attachment by simply giving bond-as it is shown that it was amply able to do-and retaining possession of its cars. No Error. DEFENDANT'S APPEAL. CLARK, C. J. It was error to refuse to admit the testimony of the agent of the company which was surety on the prosecution bond in this action, that for a payment of ten dollars it would have signed a replevy bond to secure release of the ten cars when attached. Though it may not be the duty of a defendant in all cases to execute a replevy bond, it would be preposterous to justify non-action whereby the plaintiff |