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.