
    Frank W. Dishaw, Respondent, v. L. Ogden Wadleigh, Appellant.
    
      An action for abuse of legal process — a subpoena issued to coerce payment — the proceeding complained of need not have been terminated — oral proof of the contents of a letter.
    
    If legal process is willfully made use of for a purpose not justified by law, this is an abuse for which an action will lie; in such an action it is not necessary that the plaintiff should allege or prove that the proceeding complained of has. been terminated.
    In an action of this character it appeared that the defendant, who was an attorney at law at Potsdam, entered into an agreement with Charles M. Woodward, who resided at Gouverneur, distant about thirty miles from Potsdam, under which the defendant was to procure accounts against divers persons to be assigned to Woodward, who was to commence suits, in his own name as plaintiff, in the Justice’s Court at Gouverneur, and, at the time of having the summons issued in these actions, was also to take out subpoenas and have them served upon the various defendants. For his co-operation in this undertaking Woodward received from the attorney, the present defendant, a small payment.
    One Dishaw, the plaintiff in the present action, who resided in the town of Brasher, about twenty-four miles from Potsdam and nearly sixty miles from Gouverneur, was indebted to a resident of Potsdam in the sum of about twenty dollars. The claim was assigned to Woodward, who began an action in the Justice’s Court at Gouverneur, and had a summons and subprena issued against and served upon Dishaw. As the latter failed to appear upon the return day of the summons, the attorney, the present defendant, made an affidavit that the testimony of Dishaw was material to Woodward, the plaintiff in the action in the Justice’s Court, and upon proof that Dishaw had not obeyed the subpoena, an attachment was issued against him; he was brought before the j ustice upon th e ad j ourned day, was fined for his disobedience and was also charged with the expenses of the attachment. At the same time Woodward, as assignee, recovered judgment against Dishaw, who, although he was present, was not called as a witness.
    While an execution against his person was still in the hands of a constable unserved, Dishaw brought the present action.
    
      Held, that the action could be maintained as one for an abuse of legal process;
    That from the evidence the jury might have found that the present defendant caused the subprena and the subsequent attachment to be issued, not for the purpose of procuring the attendance of the present plaintiff as a witness in the case, but under the idea that, as the claim was small, he would pay it rather than submit to the discomfort and expense of attending court at so great a distance from his residence;
    That such a use of a subprena was a perversion and abuse of the process of the court, and was calculated to bring the administration of justice into reproach and contempt.
    Proof cannot be made orally of the contents of a letter, unless it is first shown that an effort has been made to have the letter produced or that it cannot be found.
    Appeal by the defendant, L. Ogden Wadleigh, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 8th day of May, 1896, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 26th day of May, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    . The defendant is an attorney at law, residing and practicing his profession at Potsdam, St. Lawrence county. Sometime, in the year 1895 he entered into an arrangement with one Charles M. Woodward, who resided at Gouverneur, St. Lawrence county, about thirty miles distant from Potsdam, by which the defendant was to procure accounts to be assigned to the said Woodward, and then Woodward was to commence suits thereon in his own name as plaintiff in the Justice’s Court at Gouverneur, and, at the time of having the summons issued in such actions, he was also to take out and have served subpoenas upon the defendants therein. In return for such services Woodward received fives, dollars from the defendant, who also rendered some services for Woodward in looking after his personal affairs.
    Woodward paid nothing for the claims assigned to him, and upon the trial testified that the reason given to him by the defendant for such procedure was, “that a large number of those men, if they were sued there in the town, they would confess judgment, and that the judgment was not collectible; men that were able to pay and would not pay, and by confessing judgment confessed they owed their account, and that by bringing them to Gouverneur they would, as a rule, pay their accounts.”
    Q. (By the Court): “ That is, they rather pay than come over to Gouverneur and be subpoenaed to come there ? ” A. “ That, as I understand, is the gist of it.”
    Under this arrangement a number of actions were commenced in the Justice’s Court, at Gouverneur, by Woodward, and subpoenas for each of the defendants in such actions were taken out.
    Among the parties so sued was the plaintiff.
    He was indebted to a man named Tucker, who appears to have resided at Potsdam, in the sum of about twenty dollars; this account was assigned to Woodward. The plaintiff resides in the town of Brasher, about twenty-four miles from Potsdam and nearly sixty miles from Gouverneur, several towns intervening between plaintiff’s residence and Gouverneur, the usual route from plaintiff’s residence to Gouverneur being through the village of Potsdam.
    A summons and subpoena were served upon the plaintiff; both were issued at the same time at the request of the defendant, returnable September 28,1895, at ten o’clock, a, m. ; to reach Gouverneur at that time the plaintiff would have been obliged to. start the day before.
    Upon the return day the plaintiff did not appear. The defendant thereupon made an affidavit, in which he swore that the testimony of the plaintiff was material to the plaintiff in that action, and upon such affidavit an attachment was issued against the plaintiff and the suit in the Justice’s Court adjourned to a future day.
    A constable arrested the plaintiff upon such attachment and brought him before the justice upon the adjourned day, when he was fined one dollar for his disobedience to the command of the subpoena, and fifteen dollars and twenty cents, the expenses of the attachment, amounting in all to the sum of sixteen dollars and twenty cents, and an execution against his person was issued to collect such fine and costs. At the same time judgment was taken against him upon the claim sued for, the plaintiff in that action and his assignor, Hr. Tucker, being sworn as witnesses, and the plaintiff in this action, although present under the attachment, was not sworn as a witness.
    While the execution against his person was still in the hands of the constable unserved the plaintiff brought this action against the defendant, which resulted in the judgment appealed from.
    
      L. Ogden Wadleigh and William P. Goodelle, for the appellant.
    
      John A. Smith, for the respondent.
   Herrick, J.:

This case is somewhat novel in its character; and, owing to its peculiar features, my associates have thought that while this appeal might perhaps be determined upon some of the rulings made upon the trial, yet it would be well to express our opinion upon the question as to whether such an action is' maintainable, and also give expression to our views upon the practice indulged in which led to this litigation, and by such expression perhaps relieve the court from resorting to harsher measures to cause a cessation of such practice in this department.

The appellant, as one of the reasons for asking for a reversal of the judgment against him, contends that the facts proved are insufficient to constitute a cause of action. He asserts that every step taken by him was authorized in law. It is true that Tucker had a legal right to assign his account to Woodward ; that Woodward had a legal right to bring an action thereon in his own name in the town where he lived. It is true that a party plaintiff has a right to subpoena the defendant as a witness. It is true also that where a witness does not obey a subpoena it is legal to issue an attachment for him, and all these things can be done or advised to be done by an attorney for his client. Still, proceedings that are authorized by law may be made use of for an improper purpose, and acts which separately are legal may be so combined together for an illegal purpose as to constitute a single act that is obnoxious to the law.

The facts here disclose a disreputable method of practice, degrading to an honorable profession, and well calculated to bring the administration of justice into reproach and contempt, and it cannot be upheld or justified under the plea that each step taken was one authorized by law, for “‘the law is just and good,! and entitled to the obedience of all, the strong as well as the weak, and cannot sustain the perversion of its process to shield lawlessness and wrong, or permit it to be made the tool of trickery and cunning.” (Sneeden v. Harris, 109 N. C. 349.)

Here it was sought by trickery and cunning to pervert the processes of the law from their proper use and design, in order to reach a result which it was thought could not be arrived at by the ordinary and legitimate procedure of the courts.

The action here under review is not one for false imprisonment, malicious prosecution, or the special action authorized by section 1900 of the Code of Civil Procedure, although it possesses some of the features of each of those actions; it is one I think for an abuse of process, something rarely brought to the attention of the courts, except in connection with actions for false imprisonment or malicious prosecution, but for which a separate action will lie, and the attorney guilty of it may be suspended from practice.

Counsel have not referred to, nor have I, after a somewhat careful examination, been able to find any reported case in this State where an attorney has been held liable in damages for an abuse of process, but if such an action can be maintained against any one, there is no reason why an attorney should not be held liable, and many why he should. Here the acts complained of were the direct personal acts of the attorney, not dependent upon any evidence or representation of his client, or of any third person, as in most cases of malicious prosecution or false imprisonment, but wholly instigated and carried on by the attorney.

The action for abuse of process is one well defined at common law.

Oooley in his work on Torts (2d ed. *189) lays down the following rule : “ If process, either civil or criminal, is willfully made use of for a purpose not justified by the law, this is abuse for which an action will lie; ” and the author proceeds to give some illustrations of such abuses.

The leading English case upon the subject is that of Grainger v. Hill (4 Bing. N. C. 212) where the owner of a vessel was arrested on civil process, and the officer, acting under the direction of the plaintiffs in the suit, used the process to conrpel the defendant therein to give up his ship register, to which they had no right. He was held entitled to recover damages, not for maliciously putting the process in force, but for maliciously abusing it to effect an object not within its proper scope.

In this country it is a well-recognized form of action; the common-law action for abusing legal process is confined to a use of process for the purpose of compelling the defendant to do some collateral thing which he could not lawfully be compelled to do.” (Johnson v. Reed, 136 Mass. 421.)

In that case, it was held, no abuse of process was alleged.

In Herman v. Brookerhoff (8 Watts, 240) Gibson, Ch. J., said: “ Though there is a resemblance betwixt an action for the malicious prosecution of a criminal charge, and an action for a malicious arrest or holding to excessive bail in a suit, the cases are not entirely parallel. In a criminal prosecution want of probable cause must be combined with malice ; but in a civil suit the existence of a cause of action is not a defense to a suit for an excessive use of the process. * * * The gist of the action in one case is the origination of a malicious and groundless prosecution, which ipso facto put the party in peril; in the other, it is not the origination of an action, but an abuse of the process consequent on it.”

If process is willfully made use of for a purpose not justified by the law, this is an abuse for which an action will lie. (Antcliff v. June, 81 Mich. 477.)

It is not necessary, as in cases of malicious prosecution, to allege or prove that the proceeding complained of has been terminated.

Where process is used to compel a party to do a collateral thing, or to accomplish an ulterior purpose, an action for malicious abuse of process may be maintained, without alleging or proving that the process improperly employed is at' an end. (Sneeden v. Harris, 109 N. C. 349.)

It has also been held, where a person maliciously and without probable cause procured an attachment as auxiliary to his suit, that an action would lie, and that it was not necessary to allege or prove the termination of the first suit, upon the principle that, when the termination of the former suit can neither tend to establish nor invalidate the plaintiff’s cause of action, it is not necessary to allege its termination. (Fortman v. Rottier, 8 Ohio St. 548; Brand v. Hinchman, 68 Mich. 590.)

From the evidence in this case the jury could have found that the defendant caused the subpoma to be issued for the plaintiff in the action against him in the Justice’s Court and the subsequent attachment to be issued against him, not for the purpose of procuring his attendance and securing him as a witness, in the case, but for the purpose of coercing payment of the claim against him, with the idea, the claim being small, that rather than submit to the discomfort, inconvenience and expense of attending court at so great a distance, he would pay the claim.

A subpoena is for the purpose of compelling the attendance of a person whom it is desired to use as a witness; its use for any other purpose is a perversion and abuse of the process of the court; and it seems to me that, within the principle and cases I have referred to, the action is well brought; and if there is no precedent for it in this State, the fáets in this case demonstrate that it is time that one was made.

But while the action is well brought, it is incumbent upon the plaintiff to establish his case by proper evidence. Upon the trial the plaintiff was allowed to prove orally, by the witness Woodward, the arrangement between the defendant and the witness Woodward for the assignment of the claim against the plaintiff, and also of other assignments of claims, and of the reasons for making such assignments to Woodward, and why he' desired suits to be brought upon such claims in the village of Gouverneur ; these arrangements were made and the reasons therefor given by letter. Ho sufficient foundation was laid for giving secondary evidence. The witness said : “ I can’t tell where the letter is; don’t know where it is; don’t think I could find it. I think it has been destroyed, but I am not sure.” And again, “ I have not been asked to produce those letters here. I have destroyed some of the letters, and some I have not.”

This evidence does not show that any effort whatever was made to produce the letters, or ascertain that they could not be found. I think it was error to receive such evidence, and error not to have stricken it out upon the defendant’s motion. (Kearney v. Mayor, 92 N. Y. 617.)

The evidence gave color to the transaction in controversy, and was well calculated to influence the jury, and for such error the judgment and order should be reversed and a new trial granted, with costs to abide the event.

All concurred, except Parker, P. J., not sitting.

Judgment and order reversed and a new trial granted, costs to abide the event.  