Klander v. . West

Pee Cueiam. The complaint states alleged causes of action for malicious prosecution and wilful abuse of process. The defendant filed no answer and the clerk gave judgment by default and inquiry. In the *526 Superior Court the only issue submitted to the jury was directed to the 'quantum of damages and was answered in favor of the plaintiff. It was thereupon adjudged that the plaintiff recover $250.00 and costs and that he have execution against the property of the defendant and upon return of nulla bona against the defendant’s person. The defendant excepted only to the clause in the judgment which authorized his arrest under execution. To justify an execution against the person in an action for malicious prosecution there must be an affirmative finding by the jury of express or actual malice. Watson v. Hilton, 203 N. C., 574; Harris v. Singletary, 193 N. C., 583; Swain v. Oakey, 190 N. C., 113, 116. In an action for abuse of process it is not necessary to show malice, want of probable cause, or termination of the action; the two essential elements are the existence of an ulterior purpose and an act in the use of the process not proper in the regular prosecution of the proceeding. The act must be wilful. Carpenter v. Hanes, 167 N. C., 551. In the absence of a finding of express malice or the wilful abuse of process the person of the defendant cannot be taken in execution. The clause authorizing execution against his person will be stricken from the judgment, and as thus modified the judgment is affirmed. Modified and affirmed.