dissenting: An offer to alleviate a writ is not to abuse the process, and that’s all that is left on this record after eliminating *274the first cause of action which was resolved in favor of the defendant, and from which neither side has appealed. The rest is brutum fulmén, “harmless thunder.” Finance Gorp. v. Lane, 221 N. 0., 189, 19 S. E. (2d), 849; Wright v. Harris, 160 N. C., 543, 76 S. E., 489; Ludwich v. Penny, 158 N. C., 104, 73 S. E., 228. Speaking to a similar situation in Stanford v. Grocery Go., 143 N. C., 419, 55 S. E., 815, it was said: “While the complaint endeavors to set up two causes of action, as a matter of fact the testimony only discloses one — that for malicious prosecution — and the allegations purporting to be a second cause of action amount to nothing more than the assertion of a bad motive prompting the first.”
Conceding the defendant’s purpose was to collect a debt, this goes only to the motive, which is not enough in an action for abuse. Martin v. Motor Go., 201 N. 0., 641, 161 S. E., 77; Abernethy v. Burns, 210 N. 0., 636, 188 S. E., 97; Wright v. Harris, supra; Stanford v. Grocery Go., supra; Roberts v. Danforth, 92 Yt., 88, 102 Atl., 335; Bonney v. King, 201 Ill., 47, 66 N. E., 377. To make out his case, the plaintiff must aver and prove irregular steps taken under cover of the process after its issuance, and injury resulting therefrom. Italian Star Line v. U. S. Shipping Bd. F. F. Gorp., 53 Fed. (2d), 359, 80 A. L. R., 576. “This action for the abuse of process lies for the improper use of process after it has been issued, not for maliciously causing it to issue. . . . The bad intent must finally culminate in the abuse for it is only the latter which is the gist of the action” — Walicer, J., in Carpenter v. Hanes, 167 N. C., 551, 83 S. E., 577. “An abuse of process consists in its employment or use for some unlawful purpose, which it was not intended by the law to effect, and amounts to a perversion of it.” Wright v. Harris, supra.
Malicious prosecution consists in the origination of a groundless prosecution, while abuse of process consists in its perversion after issuance.
On the first cause of action, the jury has found “probable cause” for issuing the warrant. Dickerson v. Refining Go., 201 N. C., 90, 159 S. E., 446. The issue of abuse of process was answered against the defendants on the theory that if the defendant’s purpose was to collect a debt, rather than to prosecute the plaintiff for a violation of the criminal law, “that would amount to an abuse of process.” Ledford v. Smith, 212 N. C., 447, 193 S. E., 722; Note, 16 N. C. L., 277. The law is otherwise when probable cause exists for issuing the writ, and no perversion is shown. Tucker v. Davis, 77 N. O., 330; Glidewell v. Murray-Lacy & Go., 124 Ya., 563, 98 S. E., 665, 4 A. L. R., 225; Jeffrey v. Robbins, 73 Ill. App., 353; Anno. 86 Am. St. Rep., 397, et seq.; Anno.' 80 A. L. R., 580; 1 Am. Jur., 178; 50 C. J., 612, et seq. As said in Plummer v. Gheen (1st syllabus), 10 N. C., 66, 14 Am. Dec., 572: “If *275a man prosecute another from real guilt, however malicious his motives may be, he is not liable in an action for malicious prosecution; nor is he liable if he prosecute him from apparent guilt ¿rising from circumstances which he honestly believes.”
The essentials of an action for abuse of process, as distinguished from one for malicious prosecution, are purposely left indefinite by the courts. Anno. 86 Am. St. Rep., 391. Perhaps the main reason for this is to afford a remedy in cases of actionable injury resulting from the improper use of judicial process which may not come within the narrow ■confines of an action for malicious prosecution. 1 Am. Jur., 178; 50 C. J., 612. Thus an action for abuse of process has been held to lie for an excessive levy or needlessly harsh execution, Barnett v. Reed, 51 Pa., 190, 88 Am. Dec., 574; greatly disproportionate attachment, Zinn v. Rice, 154 Mass., 1, 27 N. E., 772, 12 L. R. A., 288; seizure of exempt property, Nix v. Goodhill, 95 Iowa, 282, 58 Am. St. Rep., 434; injury to' property attached or improper eviction, Bradshaw v. Frazier, 113 Iowa, 579, 85 N. W., 752, 55 L. R. A., 258, 86 Am. St. Rep., 394; oppressive treatment of one in custody, Wood v. Graves, 144 Mass., 365, 11 N. E., 567, 59 Am. Rep., 95; extortion by means of arrest, Sneeden v. Harris, 109 N. C., 349, 13 S. E., 920; Hewit v. Wooten, 52 N. C., 182; Lockhart v. Bear, 117 N. C., 298, 23 S. E., 484; Grainger v. Hill (Eng.), 4 Bing. N. C., 212; and one may be held liable for making an arrest in an unauthorized manner, Read v. Case, 4 Conn., 166, 10 Am. Dec., 110; Anno. 86 Am. St. Rep., 397, et seq. In a number of cases, it is said that two elements must concur in order to give rise to an action for abuse of process: First, an ulterior purpose; and, second, an act in the use of the process not proper in the regular prosecution of the proceeding. R. R. v. Hardware Co., 143 N. C., 54, 55 S. E., 422; Cooley, Torts (3rd Ed.), 355. In addition, the plaintiff must show damage from the irregular act. Bigelow, Torts (8th Ed.), 232.
The present case, stripped of any malicious prosecution, falls in none •of the foregoing categories. My vote is for a reversal.
WinbobNE and DeNNY, JJ., concur in dissenting opinion.