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(- Va. ->
98 S. E. 665.)

bacco, and thereafter fail or refuse
to comply with the conditions of
said written promise or pledge."

And section 2 thereof provides that any person who shall fail to comply with such written pledge, or to repay the amount borrowed, with legal interest, shall be guilty of a misdemeanor, and punished by fine, or imprisonment, or both.

A warrant, issued by a justice in Halifax county, at the instance of Murray-Lacy & Company, tobacco warehousemen, charging J. Y. Glidewell with having obtained from, and failed to repay to them, the sum of $93, under circumstances constituting a violation of this statute, was placed in the hands of J. T. Bass, a constable of the county, who was also an employee of Murray-Lacy & Company, and, as such, charged with the duty of collecting outstanding obligations due to them. He took the warrant to the home of Glidewell, who resided in Lunenburg county some 6 or 7 miles from the town of Victoria, and, not finding him at home, proceeded to Victoria and delivered the warrant to the town sergeant with instructions to exécute the same, having first, however, had it duly indorsed by a Lunenburg justice, as provided by § 3957 of the Code. The arrest was effected by the sergeant about 3 o'clock in the afternoon of that day. Bass was notified, and returned at once to Victoria. Upon his return, he asked Glidewell "what he expected to do." After some conversation not detailed in the record, it was tentatively agreed between them that if Glidewell would execute a new note, with security, covering the $93 mentioned in the warrant, the correctness of which as a civil liability he did not deny, he would be at once released and the warrant dismissed. He was not willing, however, to definitely conclude any adjustment of the matter without consulting counsel, and accordingly the parties repaired to the law office of his attorney, Mr. George E. Allen. Upon being asked by Mr. Allen, "What do you want?" Mr. Bass

The

replied, "We want money."
subject of compromise was then
taken up, and, upon an offer made
by Glidewell (but against the ad-
vice of his attorney, who stated that
Bass had no right to make the ar-
rest, and that the law under which
the warrant was issued was uncon-
stitutional), the new note, with se-
curity, was executed, and Glidewell
was immediately released. Bass
then promptly proceeded to Halifax
county, and had the warrant dis-
missed.

In order to show fully all the circumstances under which Glidewell made the settlement, the following additional incidents should be mentioned: He had walked from his home to Victoria to get medicine for his sick child, but whether Bass was informed of this fact does not appear. The child's illness does not seem to have been regarded very seriously by him, as he remained in Victoria for some time after the settlement was made. He was told by Bass that unless the matter was settled he would not be released, but would be taken before the Halifax justice, and would certainly be convicted. After his arrest, he was not confined in jail, was allowed to stay at his brother's home, apparently without guard, was subjected to no harsh or oppressive treatment by the officers, but was kept under formal arrest from 3 o'clock in the afternoon until the settlement was concluded about 11 o'clock that night. During the negotiations, Bass refused to release the prisoner upon an offer by the latter's counsel to be responsible for his appearance to answer the warrant at a future day.

Shortly after the termination, in the manner already set out, of the criminal prosecution against Glidewell, he instituted the present proceeding, by notice of motion, against Murray-Lacy & Company and T. J. Bass, to recover damages of them alleged to have resulted from his arrest and imprisonment. The notice charged that the defendants wrongfully, unlawfully, and maliciously

sued out a criminal warrant against the plaintiff, and caused his arrest thereunder, "not for the purpose of enforcing the criminal laws of the commonwealth, but solely for the ulterior and unlawful purpose of enforcing the collection of a debt of which plaintiff would otherwise. have been discharged." The notice, which was entirely informal, did not attempt to designate, eo nomine, the cause of action; but the petition upon which this writ of error was granted interprets it as "a tort, consisting of the abuse of process in using the criminal law to collect a debt." The case, as attempted to be made out by the plaintiff, was tried upon this interpretation, and we shall deal with it accordingly.

Upon the trial, there was a verdict and judgment for the defendants.

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-what constitutes.

The distinctive nature of an action for abuse of process, as compared with the actions for malicious prosecution and false imprisonment, is that it lies for the improper use of a regularly is sued process, not for maliciously causing process to issue, or for an unlawful detention of the person.

In Wood v. Graves, 144 Mass. 365, 59 Am. Rep. 95, 11 N. E. 567, the court said: "There is no doubt that an action lies for the malicious abuse of lawful process, civil or criminal. It is to be assumed, in such a case, that the process was lawfully issued for a just cause, and is valid in form, and that the arrest

or other proceeding upon the process was justifiable and proper in its inception. But the grievance to be redressed arises in consequence of subsequent proceedings. For ex

ample, if, after an arrest upon civil or criminal process, the person arrested is subjected to unwarrantable insults and indignities, is treated with cruelty, is deprived of proper food, or is otherwise treated with oppression and undue hardship, he has a remedy by an action against the officer, and against others who may unite with the officer in doing the wrong."

Freeman, in a note to Bradshaw v. Frazier, 86 Am. St. Rep. 406, says: "An action for the abuse of a process of arrest usually presupposes that the arrest under the process was proper in its inception, and is founded on grievances arising in consequence of subsequent proceedings"-citing Whitten v. Bennett, 30 C. C. A. 140, 57 U. S. App. 145, 86 Fed. 406; Wood v. Graves, supra.

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In 1 R. C. L. pp. 101, 102, with reference to this particular cause of action, it is said: "There has been considerable confusion in the books as to the exact scope of the action for abuse of process, and numerous cases may be found where it has been confounded with other classes of actions. Abuse of legal process consists in the malicious misuse or misapplication of that process, to accomplish some purpose not warranted or commanded by the writ. In brief, it is the malicious perversion of a regularly issued process, whereby a result not lawfully or properly attainable under it is secured. . . The cases based upon a pure abuse of process are comparatively few, though there are numerous cases referred to and cited as such which are in fact actions for malicious prosecution.

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maliciously causing process to is- another. From such use or employsue." ment of the process, Evidenceas from any other presumption of wilful wrong, the

In Cooley on Torts, 3d ed. p. 355, the author says: "Two elements are necessary to an action for the malicious abuse of legal process: First, the existence of an ulterior purpose; and, second, an act in the use of the process not proper in the regular prosecution of the proceeding. Regular and legitimate use of process, though with a bad intention, is not a malicious abuse of process." (Italics added.)

See also to the same general effect as the foregoing: 32 Cyc. 541; 3 Ann. Cas. 722, note; Malone v. Belcher, Ann. Cas. 1915A, 830, note 831, 832 (216 Mass. 209, 49 L.R.A. (N.S.) 753, 103 N. E. 637).

The civil injury now under discussion is sometimes referred to, even by the same text-writers and in the same judicial opinions, as “malicious abuse of process," and at other times merely as "abuse of process." This alternative use of these expressions is not usually intended to be discriminative, but

there is at least a conflict of statement in the authorities as to the ne

cessity of averring and proving malice in cases of this character. 3 Ann. Cas. 722; Ann. Cas. 1915A, 832. It seems to us, however, that there is no reason for any confusion of thought, or for any difference of opinion, as to the part which malice plays in such cases. The true rule would plainly seem to be that

-what necessary to show.

it is not necessary to allege or prove that the process was maliciously sued out, as in malicious prosecution, but that it is necessary to allege and prove that the process, after being properly sued out, was maliciously misused or abused. The authorities are practically unanimous in holding that, to maintain the action, there must be proof of a wilful and intentional abuse or misuse of the process for the accomplishment of some wrongful object -an intentional and wilful perversion of it to the unlawful injury to

malice.

law implies malice. It is safe to say that no action for abuse of process can be maintained without proof that the process was used under circumstances amounting to either actual or implied malice.

a

Case-doing lawful act.

To sum up this branch of the discussion, if process is wilfully used for a purpose not justified by the law, it is an abuse for which an action will lie. The abuse consists in the unlawful use. While it cannot be wrong to do a lawful act in a lawful way, it is wrong to do a lawful act in an unlawful way. It is the unlawful method by which the act is done that gives rise to the action, and the intentional use of this method constitutes malice in law. The malice need not be expressly charged; but, if not, there must be

Pleadingabuse of process -allegation of malice,

an averment of facts from which the law implies the malice.

The texts and judicial opinions to which we have referred are replete with citations to other similar discussions, covering every conceivable phase of the tort known as "abuse of process." Further elaboration or more extended citation here would serve no good purpose. The opening brief of counsel for the plaintiff in error contains a very satisfactory collection and review of the leading authorities on the subject, and concludes with a summary which we believe to be a correct and a sufficiently complete compendium of the law for all of the purposes of the instant case. We therefore quote from the brief as follows: "An examination of these authorities will clearly show that the only essentials of the action of abuse of process are, first, an ulterior motive, and, secondly, an act in the use of the process not proper in the regular prosecution of the proceeding, though it is immaterial whether

such process is baseless or not, the abuse consisting in its perversion to some unlawful purpose and in the wilful and oppressive use of it after its issue."

The plaintiff's case, however, when tested by the law as thus correctly stated by his counsel, cannot be maintained. It may be conceded that the first essential element of the tort, an ulterior motive, was established. To say the least of it, the evidence tended strongly to show that the real purpose of the defendants was not to enforce the criminal law, but to collect their debt, and, as a general proposition, it is illegal to use the criminal processes of the

Abuse of process -redress of

private wrong.

state merely to redress a private wrong. But before this ulterior purpose can be made the basis of a recovery in an action for the abuse of process, it must be coupled with the second essential element; that is, with "an act in the use of the process, not proper in the regular prosecution of the proceeding," amounting to its perversion to some unlawful purpose. Proof of indirect motive will not alone sustain the action. 1 R. C. L. 103, 86 Am. St. Rep. note, p. 399, and other authorities cited, supra. It is at this point that the plaintiff's case unmistakably breaks down.

Whatever motive and purpose the defendants might have had, what they actually did was in keeping with the object of the Act of March 11, 1912, and with the general legislative policy of the state with reference to misdemeanors of a minor character for which the party aggrieved has also a private remedy. There can be no doubt that the act under which the warrant was issued was primarily intended to protect tobacco warehousemen against the loss of advances of the kind made by the defendants in this case. Nor was there anything reprehensible or unlawful in the settlement which the defendants made with the plaintiff, by virtue of which the prosecution was withdrawn and the warrant dismissed. The transaction does not fall within the condemna

tion of § 3760 of the Code against concealing or compounding offenses, but rather within the spirit, if not within the terms, of § 3973, authorizing a private adjustment between the parties immediately concerned in misdemeanors for which there is a remedy by civil action. The section last cited, so far as it need be quoted here, is as follows: "When a person is in jail or under recognizance to answer a charge of assault and battery or other misdemeanor, for which there is a remedy by civil action, if the party

injured appear before the judge or justice who made the commitment or took the recognizance, and acknowledge in writing that he has received satisfaction for the injury, such judge or justice, in his discretion, may, by an order under his hand, supersede the commitment or discharge the recognizance as to the accused and witnesses."

It is contended that the formalities of the foregoing section were not complied with in the instant case. It does not affirmatively appear that the defendants ("parties injured") "acknowledged in writing that they had received satisfaction for the injury," nor just what were the terms of the final order of dismissal; but it does appear that they in fact received satisfaction, appeared before the justice, and had the warrant dismissed. This was done upon a proposition made by the accused, and was so much in accord with what he desired that he concluded the arrangement against the advice of his counsel. We need not stop to inquire whether this possibly irregular dismissal of the warrant would have constituted a valid and complete defense on his part against any subsequent effort by the commonwealth to proceed process to colagainst him criminally for the same cause. It is certain that he himself cannot be heard to complain of the alleged irregularity.

-nse of criminal

lect debt.

It is further argued, however, that § 3973 of the Code does not apply to cases of this kind, because the

( Va., 98 S. E. 665.)

general words, "or other misdemeanor," following the specific words, "assault and battery," must, under the principle of ejusdem generis, be limited to other misdemeanors of the same kind as assault and battery, or, as otherwise expressed in the reply brief, "to cases of assault and battery, or other misdemeanors resulting in personal injuries." Mr. Lile, in his Notes on Statutes (p. 29, § 48), states the familiar rule of construction here invoked as follows: "Where particular classes of persons or things are mentioned in a statute, general words preceding or following are to be restricted to persons or things of a like kind with those particularly mentioned, unless plainly otherwise intended."

It is clear that the construction of § 3973 is not within the rule, because "plainly otherwise intended." The statute, instead of impliedly restricting the meaning of the words,

Statutes-construction

"other misdemeanors," to offenses of a ejusdem generis. kindred nature with assault and battery, expressly extends their meaning so as to include the misdemeanor here involved along with all others "for which there is a remedy by civil action."

Malicious prosecutioneffect of compromise.

A voluntary compromise of a criminal prosecution, by the procurement or with the consent of the accused, in itself defeats a recovery in a subsequent action for malicious prosecution based upon the criminal proceeding. Russell v. Morgan, 24 R. I. 134, 52 Atl. 809; Langford v. Boston & A. R. Co. 144 Mass. 431, 11 N. E. 697. If it be true, as contended on behalf of the plaintiff in error, that this rule does not apply in a case of abuse of process, still the existence of the rule itself shows that private adjustments of criminal prosecutions are not unusual, and are frequently recognized as proper. We have seen that in Virginia settlements of this character are expressly provided for by statute, as to misdemeanors like that for which

the plaintiff in error was being prosecuted, and this is in accord with the general policy of the law. Of course, compounding or concealing crimes, or stifling prosecutions to defeat the ends of justice, will not be countenanced or permitted; but, as said in 3 Wharton's Criminal Law, § 1877, p. 2079: "In prosecutions for offenses and cheats not involving any great offense against the public, the courts will encourage settlements between the parties as less injurious to the public than litigation."

Our conclusion is that there was no abuse, no malicious use, and no perversion of the process sued out against the plaintiff in error. There was no extortion thereunder, no collection of money not due from him, and he was subjected to no oppression, and to no indignity except such as was incident to an orderly arrest under due and regular process. The averment, in his notice of motion, that but for the criminal prosecution he "would have been discharged" from the payment of the debt, and the statement in his bill of particulars that he had been adjudicated a bankrupt, are not supported by any proof, and appear to have been abandoned. Whatever motive may have prompted the defendants, they had a moral and legal right to accept satisfaction and withdraw the prosecution substantially as they did; and there is no ground upon which the plaintiff can legally ask for damages against them in this action.

A number of decisions from other jurisdictions are cited in the brief of counsel for plaintiff in error to support the proposition there advanced that criminal process cannot be wrongfully used to collect a debt, and that in such cases it is not necessary to prove malice or want of probable cause. The last-named element, want of Abuse of process probable cause, is, want of probable cause. of course, immaterial in all such cases, because that relates to the suing out and not to the use of the process. We concede

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