#### EARL LEDFORD v. B. A. SMITH.

(Filed 24 November, 1937.)

1. Appeal and Error § 21—

Where the charge is not in the record it will be presumed that the trial court correctly charged the law applicable to the facts.

2. Process § 14—

The essential elements of abuse of process are: (1) The existence of an ulterior purpose, and (2) a willful act in the use of the process not proper in the regular prosecution of the proceeding.

3. Process § 15 — Use of criminal process to collect civil debt constitutes abuse of process.

Plaintiff’s evidence was to the effect that he paid defendant the balance due on the purchase price of land and defendant, handed him a deed for the property, that defendant then contended that certain fixtures did not *448go with the building and that plaintiff owed interest on the money, and told plaintiff if he took the deed with him without paying these items he would have plaintiff indicted, that plaintiff insisted he had paid the full purchase price and took the deed, and that defendant thereafter swore out a warrant charging false pretense, that on the trial before the recorder, the recorder told defendant he could still have the deed set aside, and defendant’s attorney stated on the trial that the reason they did not sue plaintiff civilly was that plaintiff had nothing, and that they could collect the money after the conviction for false pretense. *Held:*The evidence was sufficient to be submitted to the jury in plaintiff’s action for abuse of process in using criminal process to collect a civil debt.

• 4. Same: Trial § 37 — Issue, taken with allegations and evidence, held sufficient to support judgment for abuse of process.

In an action for abuse of process, an issue as to whether defendant abused the process of the court in having plaintiff indicted as alleged in the complaint, *is held*sufficient to support judgment in plaintiff’s favor, when construed with the allegations and evidence to the effect that defendant abused the process of the court in wrongfully and willfully using it to collect a civil debt.

5. Execution § 25 — Execution against the person may he issued upon verdict in plaintiff’s favor in action for abuse of process.

An order for execution against the person of defendant to be issued upon return of execution against his property unsatisfied, is proper upon a verdict establishing that defendant wrongfully and willfully abused the process of the court, fraud not being an element of abuse of process, and the constitutional provision against imprisonment for debt except in cases of fraud not being applicable to torts. N. C. Constitution, Art. I, see. 16; C. S., 767, 768.

6. Constitutional Law § 34—

The constitutional provision that no person shall be imprisoned for debt except in cases of fraud, Art. I, sec. 16, applies to actions *eco con-tractu,*and has no application to actions in tort.

Babni-ihx, J., dissenting.

Stacy, C. J., and Winbokne, J. concur in dissent.

Appeal by defendant from *Johnston, J.,*and a jury, at March Term, 1937, of CLEVELAND. No error.

This was a civil action tried at the March Term, 1937, of Cleveland County Superior Court. -The plaintiff, for his first cause of action, alleged that the defendant, maliciously and without probable cause, caused and procured the plaintiff to be indicted by swearing out a warrant charging the plaintiff with the crime of false pretense, and that the defendant prosecuted the plaintiff before the recorder of Cleveland County, N. 0., and caused him to be held under a $200.00 bond for his appearance to the Superior Court of Cleveland County, N. C., and that the solicitor refused to send a bill to the grand jury for said offense; and that the purpose of defendant was to use the process of the courts to *449oppress the plaintiff and force tbe plaintiff to pay the defendant money which he did not owe, and that because of same the plaintiff had been damaged.

For the second cause of action the plaintiff alleged that defendant maliciously and falsely, with intent to oppress, abuse, and malign plaintiff, did unlawfully, willfully, and feloniously charge that the plaintiff committed a crime of larceny after trust, and caused the plaintiff to be indicted before the grand jury on said charge, and that the defendant employed counsel to prosecute said charge. That said charges of grand larceny and false pretense were maliciously and falsely spoken and uttered by the defendant with intent to harass, vex, annoy, and injure the standing and reputation of the defendant in the community, and that on this bill of indictment, after B. A. Smith testified, the court instructed the jury to enter a verdict of “not guilty.” The plaintiff elected to try the case, and the case was tried on the theory of “Abuse of Process.”

The allegations of the complaint and the evidence on the trial were to the effect: That plaintiff was 33 years old and had a wife and two children. His general reputation was good, and he had never been indicted before. Plaintiff had a transaction with defendant in regard to the purchase of some real estate from defendant. It was a 25-foot lot with a building on it which had been half torn down. Plaintiff was to fix it up and purchased it for $650.00. There were some stools in the building fastened to the floor, but in the trade no exception was made about them. Plaintiff was to pay $5.00 a- week until he had paid $250.00, and the balance of $400.00 was to be financed through the * Building and Loan Association. He repaired the building and paid the $5.00 a week until the $250.00 was paid. Plaintiff testified: “I told him (defendant) if he would have the deed fixed I would pay the balance. He came down and told me he had the deed fixed, and I went and he handed me the deed and I counted out the balance, $400.00, and he said, ‘Those stools, they don’t belong in with the building.’ He says, ‘You will have to pay extra for those.’ I says, ‘Mr. Smith, I bought the building for $650.00 like it was and I was supposed to fix it up. I paid for having it fixed up and $5.00 a week until I paid you $250.00 and paid you the other $400.00, and you give me the deed,’ and I said ‘I think it is paid for. That is the amount I was supposed to pay.’ And he said, ‘There is interest on that, too.’ Thirty-nine dollars and something I believe he said. I says and told him how I was supposed to pay it and I had paid it, and he says, ‘Well, you can’t take that deed off from here without you finish paying for it; pay the balance for the stools, and interest.’ I says, ‘Well, I have done paid you and you gave me the deed,’ and I says, ‘It belongs to me.’ He says, ‘If you take that *450deed off I will bave you arrested.’ I says, 'You will bave to bave me arrested. I paid for it and it belongs to me’; and be went and swore out a warrant for me charging me with false pretense.”

Plaintiff was arrested on tbe warrant and kept in custody several hours until be gave bond. Tbe case was beard before the recorder, plaintiff called for a jury, but tbe recorder said it was out of bis jurisdiction and be would bave to determine if there was probable cause to bind over to tbe Superior Court. Plaintiff bad no counsel. He testified : “Mr. Smith got up and told about me getting tbe deed and everything from him, and everything be would say, why tbe recorder would agree with him and tell him that was right. Tbe recorder stopped him and told him how be could still bave tbe deed set aside, and it looked like they were sort of making a joke out of me, laughing and joking and winking. Tbe recorder and Smith’s attorney and Mr. Smith wore laughing. Tbe attorney representing Mr. Smith and Mr. Smith were laughing, tbe attorney represented Mr. Smith in prosecuting me. Q. They were making a monkey out of you ? Ans.: Looked like they were; winking at each other. I didn’t see Mr. Smith wink at anybody, I saw the recorder wink at him. (Tbe court: Winking is not competent.)-Tbe recorder asked me if I bad anything to say. I went on tbe stand. Tbe recorder said, 'I want to warn you that anything you say will be held against you.’ I said, 'I want to go on tbe stand anyhow.’ I got up and told bow it was, and be said, 'Well, I am going to bind you over anyhow.’ He said, 'Do you reckon you can get up a $200.00 bond?’ I said 'I think I can.’ He put a $200.00 bond on me and sent it on up to Superior Court. Tbe attorney representing Mr. Smith in prosecuting me made tbe statement in open court the reason they didn’t sue me was because I didn’t bave nothing, and said they would get me for false pretense and then they could get their money. I appeared at tbe July Term of Superior Court, and I guess my expenses altogether, going backwards and forwards and attorney fees, were over a hundred dollars. In tbe Superior Court they changed tbe charge to larceny, and I was not tried on tbe charge of false pretense. . . . During tbe progress of the trial tbe court ordered a verdict of not guilty after tbe State’s witness, B. A. Smith, testified in tbe case. ... I gave him (Smith) $400.00 and be gave me tbe deed, we were at bis store and be bad tbe deed in tbe safe, and when I paid him be went and got it and gave it to me. . . . I admit be collected all that was in tbe deed and tried to collect more for it.”

A justice of tbe peace testified: “Some time in tbe summer of 1936, I don’t recall tbe date, Mr. B. A. Smith came to me for a warrant against Mr. Earl Ledford. Q. Go ahead and state what you told him and what be said. Ans.: He came to me for a warrant; said be wanted *451a warrant for Mr. Ledford. I said for wbat, and he explained it, and I said, ‘Well, what shall we charge him with?’ He said, 'Stealing, I guess.’ I said, 'I don’t know if it would be larceny.’ 'Well,’ he said, 'my attorney said it would.’ I said, 'Do you have an attorney employed?’ He said ‘Yes.’ I said, 'If your attorney thinks it is larceny and will draw the warrant I will sign it, but I don’t think it is.’ And he went away and he didn’t come back to me at all. In a few minutes thereafter he came back with one signed and gaye it to an officer, but I don’t know what he charged him with.”

The issues submitted to the jury and their answers thereto were as follows:

“1. Did the defendant abuse the process of the courts by having-plaintiff indicted on 24 June, 1936, as alleged in the complaint? Answer: 'Yes.’

“2. What actual damages is the plaintiff entitled to recover of the defendant? Answer: ‘$500.00.’

“3. What punitive damage is plaintiff entitled to recover of the defendant ? Answer: .”

Judgment was rendered on the verdict. Defendant, at the close of plaintiff’s evidence and at the close of all the evidence, made motions in the court below for judgment as in case of nonsuit. C. S., 567. The court below overruled these motions. The defendant excepted and assigned errors and also excepted and assigned error to the judgment as signed, and appealed to the Supreme Court.

*B. T. Falls for plaintiff.*

*E. A. Ilarrill and D. Z. Neiuton for defendant.*

ClabksoN, J.

We see no error in the judgment of the court below. The charge of the court is not in the record and the presumption of law is that the court below charged the law applicable to the facts. The case was tried in the court below on the theory of “abuse of process.” The law in regard to abuse of process is well settled in this jurisdiction.

In *Abernethy v. Burns,*210 N. C., 636 (639), we find: “There is this distinction between an action for malicious prosecution and one for abuse of process. In the former it is necessary to allege and to prove three things not required in the latter: (1) Malice; (2) want of probable cause, and (3) termination of proceeding upon which action is based (citing authorities). . . . The distinctive nature of an action for abuse of process, as compared with an action for malicious prosecution, is that the former lies for the improper use of process after it has been issued, and not for maliciously causing process to issue (citing authorities). . . . Speaking to the subject in *Klander v. West,*205 N. C., 524, it was said: ‘In an action for abuse of process it is not *452necessary to show malice, want of probable cause, or termination of tbe action; and two essential elements are tbe existence of an ulterior purpose and an act in tbe use of tbe process not proper in tbe regular prosecution of tbe proceeding. Tbe act must be willful. *Carpenter v. Hanes,*167 N. C., 551.’ ”

In abuse of process there are two essential elements: (1) The existence of an ulterior purpose; (2) a willful act in the use of tbe process not proper in tbe regular prosecution of tbe proceeding.

Tbe evidence all indicates that tbe process was used to collect a debt, if any existed, by using tbe criminal law for that purpose. Defendant said be would have plaintiff arrested if be took tbe deed without paying tbe interest. Tbe recorder, on tbe trial, informed tbe defendant that be could still have tbe .deed set aside. Defendant’s attorney made tbe statement, in prosécuting plaintiff on tbe trial in tbe recorder’s court for false pretense, “The reason why they did not sue me, because I didn’t have nothing and said they would get me for false pretense and they could get their money.” In tbe Superior Court tbe charge was changed to larceny. This and other evidence on the trial was sufficient to be submitted to tbe jury on abuse of process. Tbe process, it appears, was a whip to force tbe payment of an alleged indebtedness.

Taking tbe allegations in tbe complaint and tbe evidence adduced on tbe trial, the issue tendered and answered “Yes” will support tbe judgment “Did tbe defendant abuse tbe process of tbe courts by having-plaintiff indicted on 24 June, 1936, as alleged in the complaint?”

Tbe defendant excepted and assigned error to the judgment as follows : “It is thereupon considered, ordered, and adjudged that tbe plaintiff, Earl Ledford, have and recover of tbe defendant, B. A. Smith, the sum of $500.00, with interest thereon until paid, together with the costs of tbe action to be taxed by tbe clerk and execution will issue accordingly, and upon return of execution unsatisfied in whole or in part, execution will issue against tbe person of tbe defendant.” This exception and assignment of error cannot be sustained.

Citing again *Klander v. West,*205 N. C., 524 (526), we find it there written: “To justify an execution against the person in an action for malicious prosecution there must be affirmative finding by tbe jury of express or actual malice. *Watson v. Hilton,*203 N. C., 574; *Harris v. Singletary,*193 N. C., 583; *Swain v. Oahey,*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; tbe two essential elements are the existence of an ulterior purpose and an act in tbe use of tbe process not proper in tbe regular prosecution of the proceeding. Tbe act must be willful. *Carpenter v, Hanes,*167 N. C., 551. In the absence of a finding of express malice or tbe willful abuse of process the *453person of the defendant cannot be taken in execution.” *Ledford v. Emerson,*143 N. C., 527; *Michael v. Leach,*166 N. C., 223; *Foster v. Hyman,*197 N. C., 189; N. C. Code 1935 (Michie), secs. 767, 768.

Article I, sec. 16, of the Constitution of North Carolina, provides “There shall be no imprisonment for debt in this State except in cases for fraud.” This proviso of the Constitution has no application to actions of *tort,*but is confined to actions arising *ex contractu. Long v. McLean,*88 N. C., 3.

In the present case the jury found abuse of process, which was willful according to the allegations of the complaint. A *tort*action “injury to person or property.” Sec. 768, *supra.*

For the reasons given, in the judgment of the court below, we find

No error.

BaeNhill, J.,

dissenting:

While the complaint undertakes to state two causes of action, the first of which relates to the procurement of a warrant for the arrest, and the arrest, of the defendant, on or about 24 June, 1936, and the second of which relates to the indictment of the plaintiff in the Superior Court subsequent thereto, the plaintiff at the conclusion of all the evidence elected to rest his ease upon the allegation of “abuse of process of the courts.” While the word “indicted” is used in the first issue, the date contained therein is the date on which the defendant procured the issuance of a warrant for the arrest of the plaintiff. So that, both by the election of the plaintiff and the issues submitted, the trial was restricted to the instances surrounding the original arrest of the plaintiff.

The answer to the first issue is insufficient to support the judgment in this cause. There can be no abuse of process in the procurement of the issuance of a warrant or other process of the court. The distinctive nature of an action for abuse of process as compared with an action for malicious prosecution is that the former lies for the improper *use*of process *after*it has been issued, and not for maliciously *causing*process to issue. *Abernethy v. Burns,*210 N. C., 636; *Martin v. Motor Co.,*201 N. C., 641; *Griffin v. Baker,*192 N. C., 297; 1 Am. Jur., 176. On a cause of action for abuse of process the two essential elements to be established 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. *Carpenter v. Hanes,*167 N. C., 551. “Where the matter complained of concerns the issuance of process, the action is either strictly or by analogy one for malicious prosecution. In this category are included actions for the malicious institution of criminal proceedings,” etc. 1 Am. Jur., 177. In *Wright v. Harris,*160 N. C., 542, it is said : “An abuse of process consists in its *employment*for some unlawful pur*454pose or use, which it was not intended by the law to effect and amounts to a perversion of it. It is not the illegality or maliciousness of legal proceedings leading up to it which forms the basis of the distinct cause of action for its' abuse, which is independently actionable, when the process itself is used for an unlawful or oppressive purpose, or is used to coerce or harass the defendant.” The foregoing cases cite many others to the same effect.

Where the charge of the court is not in the record there is a presumption of law that the court below correctly charged the law applicable to the facts relating to the issues submitted. It is also a rule of this Court that where an issue and the answer thereto, standing alone, do not establish sufficient facts to support a verdict, but an examination of the charge discloses that the answer of the jury, taken in connection with the statements made by the court in its charge, is sufficient, then the verdict will be upheld. That is, if the charge taken in connection with the answer fully amplifies and explains the answer, so as to make it, when considered in connection with the charge, sufficient, it will be sustained. This Court, however, has never gone so far as to hold that it will presume that a charge not in the record was sufficient to so amplify and explain a verdict, otherwise inadequate, as to justify upholding a verdict otherwise totally insufficient. When the charge is not in the record we presume that the court below fully charged the jury as to the law and the facts relating to the issues submitted. This is the extent of former decisions and is as far as we can now safely go. Shall we presume that the court below instructed the jury that if the defendant, after the issuance of the warrant, procured the arrest of the plaintiff, not in good faith for the purpose of prosecuting a violation of the criminal law, but for the ulterior purpose of collecting a debt, that then such finding on their part would constitute an abuse of process in procuring the issuance of the warrant, or, shall we presume that the court below correctly instructed the jury as to the liability of the defendant for statements of his counsel made in open court in respect to purpose of the prosecution, when there was no evidence of express authority for such statement and that if the jury found that such statements were authoritatively made, then that it constituted proof of, or that it might be considered as evidence of the ulterior purpose of the prosecution? This is the only manner in which this evidence could be related to the issues submitted. If the court below had so related this evidence to the issue it would have been error, for the reason that abuse of process after its issuance does not constitute an abuse of process in procuring the issuance of the process, for the simple reason that there can be no abuse of process in the procurement of the issuance thereof.

*455There is no sufficient evidence in the record to support a finding that there was an abuse of process in this cause. The evidence is fully set out in the opinion, from which it appears that the defendant delivered to the plaintiff a deed for certain property in anticipation that the plaintiff would then and there pay him the balance due; that the plaintiff did not pay the amount the defendant contends was due, and the defendant thereupon demanded a return of his deed and forbade the plaintiff to carry the same away. The plaintiff, having insisted that he paid all that was due, retained the deed and the defendant thereupon procured a warrant, under advice of counsel. After the procurement of the warrant he did nothing further than to testify as a State’s witness when called upon to do so. The plaintiff testified “I do not remember Mr. Smith saying on the stand anything about getting his money.” The only evidence relating to any ulterior purpose attendant upon the prosecution is the following: “Mr. Harrell represented Mr. Smith in prosecuting me and made the statement in open court the reason they did not sue me was because I did not have nothing, and said they would get me for false pretense and then they could get their money.” I do not deem this sufficient evidence to support the charge of abuse of process, even upon a proper issue. The inference that the defendant was prompted by the ulterior purpose of collecting money by the prosecution is to be drawn from the plaintiff’s complaint and not from the evidence.

I am authorized to say that MR. Chief Justice Stacy and Mr. Justice WiNBORNE concur in this dissent.