(- Va, —, 98 8. E. 665.) bacco, and thereafter fail or refuse replied, “We want money."

The to comply with the conditions of subject of compromise was then said written promise or pledge." taken up, and, upon an offer made

And section 2 thereof provides by Glidewell (but against the adthat any person who shall fail to

vice of his attorney, who stated that comply with such written pledge, or Bass had no right to make the arto repay the amount borrowed, with rest, and that the law under which

, legal interest, shall be guilty of a the warrant was issued was unconmisdemeanor, and punished by fine, stitutional), the new note, with seor imprisonment, or both.

curity, was executed, and Glidewell A warrant, issued by a justice in was immediately released. Bass Halifax county, at the instance of then promptly proceeded to Halifax Murray-Lacy & Company, tobacco county, and had the warrant diswarehousemen, charging J. Y. missed. Glidewell with having obtained In order to show fully all the cirfrom, and failed to repay to them, cumstances under which Glidewell the sum of $93, under circumstances made the settlement, the following constituting a violation of this stat- additional incidents should be menute, was placed in the hands of J. tioned: He had walked from his T. Bass, a constable of the county, home to Victoria to get medicine for who was also an employee of Mur- his sick child, but whether Bass was ray-Lacy & Company, and, as such, informed of this fact does not apcharged with the duty of collecting pear. The child's illness does not outstanding obligations due to them. seem to have been regarded very He took the warrant to the home of seriously by him, as he remained in Glidewell, who resided in Lunen- Victoria for some time after the burg county some 6 or 7 miles from

settlement was made. He was told the town of Victoria, and, not find- by Bass that unless the matter was ing him at home, proceeded to Vic- settled he would not be released, but toria and delivered the warrant to would be taken before the Halifax the town sergeant with instructions justice, and would certainly be conto execute the same, having first, victed. After his arrest, he was not however, had it duly indorsed by a confined in jail, was allowed to stay Lunenburg justice, as provided by at his brother's home, apparently $ 3957 of the Code. The arrest was without guard, was subjected to no effected by the sergeant about 3 harsh or oppressive treatment by o'clock in the afternoon of that day. the officers, but was kept under forBass was notified, and returned at mal arrest from 3 o'clock in the once to Victoria. Upon his return, afternoon until the settlement was he asked Glidewell "what he expectconcluded about 11 o'clock that

“ ed to do.” After some conversation night. During the negotiations, not detailed in the record, it was Bass refused to release the prisoner tentatively agreed between them

upon an offer by the latter's counsel that if Glidewell would execute a to be responsible for his appearance new note, with security, covering to answer the warrant at a future the $93 mentioned in the warrant, day. the correctness of which as a civil Shortly after the termination, in liability he did not deny, he would the manner already set out, of the be at once released and the war- criminal prosecution against Gliderant dismissed. He was not willing, well, he instituted the present prohowever, to definitely conclude any ceeding, by notice of motion, against adjustment of the matter without Murray-Lacy & Company and T. J. consulting counsel, and accordingly Bass, to recover damages of them the parties repaired to the law office alleged to have resulted from his arof his attorney, Mr. George E. Al- rest and imprisonment. The notice len. Upon being asked by Mr. Al. charged that the defendants wronglen, "What do you want?” Mr. Bass fully, unlawfully, and maliciously

sued out a criminal warrant against or other proceeding upon the procthe plaintiff, and caused his arrest ess was justifiable and proper in its thereunder, "not for the purpose of inception. But the grievance to be enforcing the criminal laws of the redressed arises in consequence of commonwealth, but solely for the ul

subsequent proceedings.

For exterior and unlawful purpose of en- ample, if, after an arrest upon civil forcing the collection of a debt of or criminal process, the person arwhich plaintiff would otherwise

rested is subjected to unwarrantable have been discharged.” The notice, insults and indignities, is treated which was entirely informal, did with cruelty, is deprived of proper not attempt to designate, eo nomine,

food, or is otherwise treated with the cause of action; but the petition oppression and undue hardship, he

; upon which this writ of error was

has a remedy by an action against granted interprets it as "a tort, con

the officer, and against others who sisting of the abuse of process in

may unite with the officer in doing using the criminal law to collect a

the wrong." debt." The case, as attempted to be

Freeman, in a note to Bradshaw made out by the plaintiff, was tried

v. Frazier, 86 Am. St. Rep. 406, upon this interpretation, and we shall deal with it accordingly.

says: “An action for the abuse of Upon the trial, there was a ver

a process of arrest usually presupdict and judgment for the defend

poses that the arrest under the procants.

ess was proper in its inception, and

is founded on grievances arising in The cause of action sought to be maintained in this proceeding is not

consequence of subsequent proceedmalicious prosecution or false im- ings”—citing Whitten v. Bennett, prisonment, but the kindred, though

30 C. C. A. 140, 57 U. S. App. 145,

86 Fed. 406; Wood v. Graves, supra. less common, one, of abuse of process. So far as we know, there is

In 1 R. C. L. pp. 101, 102, with no Virginia

reference to this particular cause of

case -right of action. upon the subject. action, it is said: “There has been

It is well settled, considerable confusion in the books however, as a general proposition of as to the exact scope of the action law, that abuse of process, as dis

for abuse of process, and numerous tinguished from malicious prosecu- cases may be found where it has tion and from false imprisonment, been confounded with other classes may constitute an independent cause of actions.

Abuse of legal of action.

process consists in the malicious The distinctive nature of an ac- misuse or misapplication of that tion for abuse of process, as com- process, to accomplish some purpose pared with the actions for malicious not warranted or commanded by the prosecution

and

writ. In brief, it is the malicious false imprisonment, perversion of a regularly issued is that it lies for

process, whereby a result not lawthe improper use of a regularly is- fully or properly attainable under it sued process, not for maliciously is secured.

The cases based causing process to issue, or for an upon a pure abuse of process are unlawful detention of the person. comparatively few, though there

In Wood v. Graves, 144 Mass. are numerous cases referred to and 365, 59 Am. Rep. 95, 11 N. E. 567, cited as such which are in fact acthe court said: “There is no doubt tions for malicious prosecution. that an action lies for the malicious

The distinctive nature of abuse of lawful process, civil or an action for malicious abuse of criminal. It is to be assumed, in process, as compared with an action such a case, that the process was for malicious prosecution, is that it lawfully issued for a just cause, and lies for the improper use of process is valid in form, and that the arrest after it has been issued, not for

Abuse

.

-what constitutes.

.

lawful act.

malice.

(- Va. 98 S. E. 665.) maliciously causing process to is- another. From such use or employsue."

ment of the process,

EvidenceIn Cooley on Torts, 3d ed. p. 355, as from any other presumption of the author says: "Two elements are wilful wrong, the

malice. necessary to an action for the ma- law implies malice. It is safe to say licious abuse of legal process: First, that no action for abuse of process the existence of an ulterior purpose; can be maintained without proof and, second, an act in the use of the that the process was used under cirprocess not proper in the regular cumstances amounting to either acprosecution of the proceeding. Reg- tual or implied malice. ular and legitimate use of process, To sum up this branch of the disthough with a bad intention, is not cussion, if process is wilfully used a malicious abuse of process."

” for a purpose not justified by the (Italics added.)

law, it is an abuse for which an acSee also to the same general effect tion will lie. The abuse consists in as the foregoing: 32 Cyc. 541; 3 the unlawful use. While it cannot Ann. Cas. 722, note; Malone v. be wrong to do a

Case-doing Belcher, Ann. Cas. 1915A, 830, lawful act in a lawnote 831, 832 (216 Mass. 209, 49

ful way, it is a L.R.A.(N.S.) 753, 103 N. E. 637). wrong

to do a lawful act in The civil injury now under dis

an unlawful way. It is the uncussion is sometimes referred to, lawful method by which the act even by the same text-writers and in

is done that gives rise to the the same judicial opinions, as “ma

action, and the inlicious abuse of process, and at

tentional use of this abuse of proceso

' other times merely as "abuse of

method constitutes -allegation of

malice in law. The process.” This alternative use of

malice need not be expressly these expressions is not usually intended to be discriminative, but charged; but, if not, there must be

an averment of facts from which there is at least a conflict of state

the law implies the malice. ment in the authorities as to the ne

The texts and judicial opinions to cessity of averring and proving which we have referred are replete malice in cases of this character. 3

with citations to other similar disAnn. Cas. 722; Ann. Cas. 1915A: cussions, covering every conceivable 832. It seems to us, however, that phase of the tort known as "abuse there is no reason for any confusion

of process." Further elaboration or of thought, or for any difference of

more extended citation here would opinion, as to the part which mal

serve no good purpose. The opening ice plays in such cases. The true brief of counsel for the plaintiff in rule would plainly seem to be that error contains a very satisfactory

it is not necessary collection and review of the leading to allege or prove authorities on the subject, and con

that the process was cludes with a summary which we maliciously sued out, as in malicious believe to be a correct and a sufprosecution, but that it is necessary ficiently complete compendium of to allege and prove that the process, the law for all of the purposes of after being properly sued out, was the instant case. We therefore maliciously misused or abused. The quote from the brief as follows: authorities are practically unani- "An examination of these authorimous in holding that, to maintain ties will clearly show that the only the action, there must be proof of a essentials of the action of abuse of wilful and intentional abuse or mis- process are, first, an ulterior motive, use of the process for the accom- and, secondly, an act in the use of plishment of some wrongful object the process not proper in the regular -an intentional and wilful perver- prosecution of the proceeding, sion of it to the unlawful injury to though it is immaterial whether

-what necessary to show.

Abuse of process -redress of

such process is baseless or not, the tion of § 3760 of the Code against abuse consisting in its perversion to concealing or compounding offenses, some unlawful purpose and in the but rather within the spirit, if not wilful and oppressive use of it after within the terms, of $ 3973, authorits issue."

izing a private adjustment between The plaintiff's case, however,

however, the parties immediately concerned when tested by the law as thus cor- in misdemeanors for which there is rectly stated by his counsel, cannot a remedy by civil action. The secbe maintained. It may be conceded tion last cited, so far as it need be that the first essential element of quoted here, is as follows: "When the tort, an ulterior motive, was es- a person is in jail or under recogtablished. To say the least of it, the nizance to answer a charge of asevidence tended strongly to show sault and battery or other misdethat the real purpose of the defend- meanor, for which there is a remedy ants was not to enforce the criminal by civil action,

if the party law, but to collect their debt, and, injured appear before the judge or as a general proposition, it is illegal justice who made the commitment to use the criminal processes of the or took the recognizance, and ac

state merely to re- knowledge in writing that he has re

dress a private ceived satisfaction for the injury, private wrong.

wrong. But before such judge or justice, in his discrethis ulterior purpose can be made tion, may, by an order under his the basis of a recovery in an action hand, supersede the commitment or for the abuse of process, it must be discharge the recognizance as to the coupled with the second essential ele- accused and witnesses.” ment; that is, with "an act in the

It is contended that the formaliuse of the process, not proper in the ties of the foregoing section were regular prosecution of the proceed- not complied with in the instant ing,” amounting to its perversion to case. It does not affirmatively apsome unlawful purpose.

Proof of pear that the defendants ("parties indirect motive will not alone sus- injured") "acknowledged in writing tain the action. 1 R. C. L. 103, 86 that they had received satisfaction Am. St. Rep. note, p. 399, and other for the injury," nor just what were authorities cited, supra. It is at the terms of the final order of disthis point that the plaintiff's case missal; but it does appear that they unmistakably breaks down.

in fact received satisfaction, apWhatever motive and purpose the peared before the justice, and had defendants might have had, what the warrant dismissed. This was they actually did was in keeping done upon a proposition made by with the object of the Act of March the accused, and was so much in ac11, 1912, and with the general legis- cord with what he desired that he lative policy of the state with refer- concluded the arrangement against ence to misdemeanors of a minor

the advice of his counsel. We need character for which the party ag- not stop to inquire whether this grieved has also a private remedy. possibly irregular dismissal of the There can be no doubt that the act warrant would have constituted a under which the warrant was issued

valid and complete defense on his was primarily intended to protect part against any subsequent effort tobacco warehousemen against the

by the commonloss of advances of the kind made by

wealth to proceed process to colthe defendants in this case. Nor against him crimiwas there anything reprehensible nally for the same cause. It is ceror unlawful in the settlement which tain that he himself cannot be heard the defendants made with the plain to complain of the alleged irregutiff, by virtue of which the prosecu- larity. tion was withdrawn and the war- It is further argued, however, rant dismissed. The transaction

that § 3973 of the Code does not apdoes not fall within the condemna- ply to cases of this kind, because the

- use of criminal

lect debt.

struction

(- Va.

98 S. E. 665.) general words, "or other misde- the plaintiff in error was being meanor," following the specific prosecuted, and this is in accord words, “assault and battery," must, with the general policy of the law. under the principle of ejusdem

ejusdem Of course, compounding or concealgeneris, be limited to other misde- ing crimes, or stilling prosecutions meanors of the same kind as as- to defeat the ends of justice, will not sault and battery, or, as otherwise be countenanced or permitted; but, expressed in the reply brief, "to as said in 3 Wharton's Criminal cases of assault and battery, or other Law, $ 1877, p. 2079: “In prosecumisdemeanors resulting in personal tions for offenses and cheats not ininjuries." Mr. Lile, in his Notes on volving any great offense against Statutes (p. 29, § 48), states the fa- the public, the courts will encourage miliar rule of construction here in settlements between the parties as voked as follows: “Where particu- less injurious to the public than lar classes of persons or things are litigation." mentioned in a statute, general Our conclusion is that there was words preceding or following are no abuse, no malicious use, and no to be restricted to persons or things perversion of the process sued out of a like kind with those particular- against the plaintiff in error. There ly mentioned, unless plainly other- was no extortion thereunder, no wise intended.”

collection of money not due from It is clear that the construction him, and he was subjected to no of $ 3973 is not within the rule, be- oppression, and to no indignity excause "plainly otherwise intended.” cept such as was incident to an orThe statute, instead of impliedly re- derly arrest under due and regular stricting the meaning of the words, process. The averment, in his no

"other misdemean- tice of motion, that but for the crimStatutes-con

ors," to offenses of a inal prosecution he "would have ejusdem generis,

kindred nature with been discharged” from the payment assault and battery, expressly ex- of the debt, and the statement in his tends their meaning so as to include bill of particulars that he had been the misdemeanor here involved adjudicated a bankrupt, are not supalong with all others "for which ported by any proof, and appear to there is a remedy by civil action.” have been abandoned. Whatever

A voluntary compromise of a motive may have prompted the decriminal prosecution, by the pro- fendants, they had a moral and legal curement or with the consent of the right to

right to accept satisfaction and accused, in itself ,

withdraw the prosecution substanMalicious

defeats a recovery tially as they did; and there is no

in a subsequent ac- ground upon which the plaintiff can compromise.

tion for malicious legally ask for damages against prosecution based upon the criminal them in this action. proceeding. Russell v. Morgan, 24 A number of decisions from other R. I. 134, 52 Atl. 809; Langford v. jurisdictions are cited in the brief Boston & A. R. Co. 144 Mass. 431, 11 of counsel for plaintiff in error to N. E. 697. If it be true, as contend- support the proposition there aded on behalf of the plaintiff in error, vanced that criminal process cannot that this rule does not apply in a be wrongfully used to collect a debt, case of abuse of process, still the ex- and that in such cases it is not necistence of the rule itself shows that

essary to prove malice or want of private adjustments of criminal probable cause. The last-named prosecutions are not unusual, and element, want of are frequently recognized as proper. probable cause, is, We have seen that in Virginia set- of course,

probable cause.

immatlements of this character are ex- terial in all such cases, because that pressly provided for by statute, as relates to the suing out and not to to misdemeanors like that for which the use of the process. We concede

prosecution effect of

Abuse of process -want of