
    JOHN H. MARTIN et al. v. C. H. REXFORD et al.
    (Filed 22 December, 1915.)
    Conversion — Claim and Delivery — Principal and Surety — Damages—Malicious Prosecution — Several Causes — Demurrer.
    Where it is alleged that, in a former action, the defendants sued out claim and delivery, seized the plaintiff’s property, in which the plaintiff has obtained final judgment in his favor, but that the defendant wrongfully, unlawfully, etc., had converted the property to his own use: Held,, the plaintiff may recover his damages in an independent action against the defendant, and, ex contractu, against his sureties on his bond, and where the writ has been sued out willfully, maliciously, and wantonly, punitive damages against the principal defendant alone; but where the latter damages are sought against all in the same action, the causes should be severed, and a demurrer is bad.
    Appeal by defendants from Webb, J., at July Term, 1915, of SwaiN.
    Civil action heard upon demurrer. From the judgment overruling the demurrer defendants appealed.
    
      Alley & Leatherwood for plaintiff.
    
    
      W. L. Taylor, Frye & Frye for defendants.
    
   BeowN, J.

The complaint alleges that in a certain civil action prosecuted by defendants against plaintiffs, the defendants sued out a claim and delivery proceeding, writ of attachment and injunction, and levied said' writs upon plaintiffs property and appropriated the same to defendant’s use.

The plaintiffs further allege that the said proceedings upon the part of the defendants were “wrongful, unlawful, vexatious, annoying, malicious, and without probable cause,” and prayed judgment for the sum of $3,500 damage.

Tbe plaintiffs further aver tbat tbe said action bas been terminated in favor of tbe plaintiffs by judgment of tbe Superior Court of Swain County, duly affirmed by tbe Supreme Court of tbis State.

Tbe principal ground of demurrer is tbat if any damages were sustained in sucb action by tbe wrongful suing out of tbe said proceedings, tbey could only be ascertained by motion in tbe original action, and tbat tbey are not properly tbe subject of an independent action. We think his Honor properly overruled tbe demurrer.

We have held that where attachments and kindred proceedings are issued and levied upon tbe property of tbe defendant without probable cause, tbe plaintiff is liable to tbe defendant for tbe damages sustained, and tbat tbey may be recovered in a separate action against tbe plaintiff, as well as upon bis undertaking. Tyler v. Mahoney, 166 N. C., 509.

But tbe sureties upon tbe undertaking are only liable ex contractu for tbe actual damages sustained, while tbe party suing out tbe writ willfully, maliciously, and wantonly would be liable not only for actual damages, but in tort for punitive damages in case a jury should see fit to award them. Therefore, tbe action in tort will not lie against tbe sureties on tbe undertaking, and tbe two cannot properly be joined.

But it does not follow tbat tbe demurrer should be sustained and tbe action dismissed because under Tbe Code tbe court in tbe case of a mis-joinder of causes of action shall order tbe action to be divided into as many actions as may be necessary to tbe proper determination of tbe causes of action therein mentioned. R. R. v. Hardware Co., 135 N. C., 78.

Tbe complaint in tbis case is not as definite and certain as it might be. If tbe plaintiffs desire to prosecute tbe defendants ex delicto for a malicious prosecution, and also to prosecute tbe sureties upon tbe undertaking in tbe attachment and claim and delivery proceeding for tbe value of tbe property and actual damages sustained, then it is in order to divide tbe action and file separate complaint in each case.

Affirmed.  