delivered the opinion of the Court.
The appellants regarded the conveyance of the mortgaged premises to Lehman subject to the indebtedness secured by the mortgage as a satisfaction of such indebtedness to the extent only of the value of such premises. The appellee insisted that it's legal operation was to satisfy and fully discharge the entire indebtedness without regard to the value of the property.
Under the advice of counsel, learned in the law and authorized to practice in the courts, the appellants proceeded to take judgment by confession to issue execution thereon, *37and to cause the same to be levied upon appellee’s property, leaving it to him to proceed by such course as he might be advised was most desirable and proper to bring before the courts the question as to the legal effect of the conveyance to Lehman. The result was a hearing in the Coles County Circuit Court and an adjudication adverse to the position of the appellants. The case at bar was instituted by the appellee to recover damages for the injury to his financial standing, credit and good name, inflicted, as he alleges, by the confession of the judgment, the issuance of an execution thereon, the levy of the same upon his land, the assignment of a homestead to him and the public notice given by the sheriff that his property would be exposed for sale at public outcry, the expenses, by way of attorney fees and otherwise, necessarily by him incurred in securing from the court a stay of proceedings under the execution and in presenting his ground of defense against the judgment to the court.
The instructions given to the jury in behalf of the appellee were framed upon the theory that it was immaterial whether the appellants were actuated by malice in the institution and prosecution of the proceeding to obtain the judgment by confession thereon and the levy, etc., thereunder, or in resisting in the courts the lawful efforts of the appellee to defeat their right to a judgment. Instructions asked by the appellants to the effect that the plaintiff could not recover, unless the jury believed from the evidence that the defendants were so actuated by malice, were refused by the court.
Counsel for appellee insist that the action is to recover damages for an abuse of legal process and that in such cases it is not necessary to aver or prove that the process was sued out or used maliciously or without probable cause, and for that reason the rulings of the court on the instructions were proper. It has been held that in an action for an abuse of process, both malice and want of probable cause will be implied if an abuse is proven. Such holdings are mentioned with apparent approval in Walker v. Hotchkiss, 62 Illinois, *38107. Judge Cooley in his work on Torts says,, that it is enough to show that the process was willfully abused to accomplish some unlawful purpose. Cooley on Torts, 221.
It does not seem to us necessary to examine this contention or attempt to harmonize a conflict that at least apparently exists in the decisions of courts and works of law writers upon it, for we do not think the evidence established or tended to establish an abuse of the process of the law.
"We understand that process is deemed to have been abused when it has been employed to accomplish some purpose which the process was not intended by law to effect, or where it has been used in the mode and manner designed by law, but with an ulterior purpbse to effectuate some unlawful collateral end, the legal use of it being but ostensible, while the real design was to pervert its force and efficiency to the success of the unlawful collateral design. 1 Amer. & Eng. Ency. of Law, 49; Mayer v. Walter, 64 Pa. St. 288.
Where process has been used for the purpose the law intended it to effect, and without an ulterior unlawful purpose in view, it can not be said to have been abused, yet if it is so used maliciously and without an honest and reasonable belief of a right to so use it, the person against whom it has been employed, if damaged thereby, may have his action to recover such damages, if the process ought not in fact have been made use of. The action in such case is not for an abuse of the process but for a malicious and wrongful use of it, and recovery is allowed only with an exception hereafter noticed, when it is made to appear by the proof that the use of it, though legal in form and procedure, was in fact wrongful, and that the defendant did not employ it in the honest and reasonable belief that it was just for him to do so, but was actuated and moved by malice in its use.
The exception referred to is that if the property of a defendant be seized by the wrongful use of process and such property damaged or injured by the act of seizure or by a custodian having charge of it under the process, recovery *39may be had in the absence of malice or without regard to the motives that actuated the person at whose instance the process was used.
In such cases, however, the recovery is limited to such special injury and damage to the property. Nothing of the kind is claimed here.
There is no evidence in this case tending to show that, the execution was perverted to a use not designed by law to be effected by such writs or that it was employed for any purpose other than that of legally subjecting the lands to sale. So far as the use made of the execution was concerned there was no abuse of the process, and if not abused its use was lawful unless the appellants were actuated by malice and without reasonable grounds to believe that they might lawfully employ it as they did. Testimony produced in behalf of the appellants and facts and circumstances appearing in the evidence tended to disprove malice and to prove that the appellants in good faith actually believed that they were proceeding lawfully in the course taken by them. It was proven that they acted upon the advice and instruction of an attorney at law and a member of the bar of the State, engaged in the actual practice of the profession, to whom the material facts were fully made known.
Whether they acted in good faith and upon reasonable grounds for such faith and belief, were important and material elements for the consideration of the jury, upon which the right of the plaintiff to recover rested.
It is urged that the debt had been paid when the appellants caused the judgment to be entered; that the appellant had full knowledge of such payment; that with such knowledge there was not and could not have been any reasonable ground or cause for entering the judgment or issuing the execution; that malice is presumed in the absence of reasonable or probable cause and that therefore the acts of the appellants in entering the judgment and causing the execution to issue was a willful and malicious and unjustifiable use of the power and process of the court; that therefore upon the admitted and uncontested facts the judgment is *40right and ought not to be disturbed. This contention all rests upon the assumption that the debt had been paid and the appellants having knowledge of such payment, proceeded to take judgment. It can not, in correctness of speech, be said that the note was paid, but rather that the legal effect of the conveyance was to relieve the appellee from a liability to pay it. It was discharged by operation of the rules of law and not paid in the ordinary meaning of the word. Appellant did not admit nor understand that such was the legal effect of the conveyance of the mortgaged premises to appellant Lehman, but supposed that the appellant company would be required to account for the property at its value as a credit upon the note and that such value would be determined by the court upon a hearing.
They were advised by counsel upon full disclosure of all the facts that such hearing and adjustment by the court might be lawfully brought about by the course pursued by them. They are not to be judged by the actual state of the case in law or in fact, but upon their honest and reasonable belief as to the facts and the legal effect thereof. 2 Greenleaf, Evid., Sec. 455; Anderson v. Friend, 85 Illinois, 135.
If they in good faith relied and acted upon such legal advice, we know of no reason why they should incur liability beyond that incurred by every suitor who institutes a groundless action and every defendant who endeavors to maintain a groundless defense. In every contested suit at law the result makes it manifest either that the plaintiff has employed the function, powers and process of the court in the prosecution of a groundless claim, or that the defendant has used such functions, powers and process in furtherance of his desire and effort to substantiate and maintain a groundless defense.
Payment of legal costs is the measure of the liability in either case, unless malice and want of reasonable or probable cause may, under the peculiar circumstances of some particular case, create an exception. The jury should have been so instructed in the case under consideration.
The judgment must be and is reversed and the cause' remanded.