Upon tbe call of tbe case in this Court tbe defendant demurred ore tenus for that tbe complaint fails to state a cause of action for abuse of process. Decision thereon is determinative of this appeal.
At common law there were a number of related causes of action devised to afford a remedy against tbe wrongful invasion of tbe liberty of an individual through tbe processes of tbe courts.
A cause of action for false arrest or false imprisonment is based upon tbe deprivation of one’s liberty without legal process. It may arise when tbe arrest or detention is without warrant, Allen v. Greenlee, 13 N. C., 370; S. v. DeHerrodora, 192 N. C., 749, 136 S. E., 6; Cook v. Hospital, 168 N. C., 250, 84 S. E., 352; Hoffman v. Hospital, 213 N. C., 669, 197 S. E., 161, or tbe warrant charges no criminal offense, Rhodes v. Collins, 198 N. C., 23, 150 S. E., 492, or tbe warrant is void, or tbe person arrested is not tbe person named in tbe warrant. 4 Am. Jur., 81, see. 132. All that must be shown is tbe deprivation of one’s liberty without legal process.
To sustain an action for malicious prosecution tbe plaintiff must show malice, want of probable cause, and tbe favorable termination of tbe former proceeding. Miller v. Greenwood, 218 N. C., 146, 10 S. E. (2d), 708; Carpenter v. Hanes, 167 N. C., 551, 83 S. E., 577; Stancill v. Underwood, 188 N. C., 475, 124 S. E., 845; Wingate v. Causey, 196 N. C., 71, 144 S. E., 530; Mooney v. Mull, 216 N. C., 410, 5 S. E. (2d), 122, 125 A. L. R., 893; Rawls v. Bennett, 221 N. C., 127, 19 S. E. (2d), 126.
One who uses legal process to compel a person to do some collateral act not within the scope of tbe process or for tbe purpose of oppression or annoyance is liable in damages in a common law action for abuse of process. 1 Am. Jur., 176; R. R. v. Hardware Co., 143 N. C., 54; Ludwick v. Penny, 158 N. C., 104, 73 S. E., 228; Wright v. Harris, 160 N. C., 542, 76 S. E., 489; Griffin v. Baker, 192 N. C., 297, 134 S. E., 651; Klander v. West, 205 N. C., 524, 171 S. E., 782.
So then, while false imprisonment is tbe arrest and imprisonment without legal process and malicious prosecution is tbe prosecution with malice and without probable cause, abuse of process is tbe misuse of legal process for an ulterior purpose. It consists in tbe malicious misuse or misapplication of that process after issuance to accomplish some purpose not warranted or commanded by tbe writ. It is tbe malicious perversion of a legally issued process whereby a result not lawfully or properly obtainable under it is attempted to be secured. 1 Am. Jur., 176; Stanford v. Grocery Co., 143 N. C., 419; R. R. v. Hardware Co., 138 N. C., 175; Griffin v. Baker, supra; Abernethy v. Burns, 210 N. C., 636, 188 S. E., 97; Klander v. West, supra; Martin v. Motor Co., 201 *704N. C., 641, 161 S. E., 77; Ellis v. Wellons, 224 N. C., 269; Rock v. Abrashin, 65 A. L. R., 1280; Anno. 86 Am. St. Rep., 397.
Evil purpose alone is not sufficient. Tbe bad intent must finally culminate in tbe abuse, for it is only tbe latter wbicb is tbe gist of tbe action. Carpenter v. Hanes, supra. Nor can a cause of action arise out of tbe issuance of tbe process alone. Abernethy v. Burns, supra. There is no writ until it is issued. Hence there can be no abuse of a writ before its issuance. That wbicb does not exist cannot be abused.
“Regular and legitimate use of process, though with a bad intention, is not a malicious abuse of process.” 1 Cooley, Torts (3rd), 354; Wright v. Harris, supra; Ludwick v. Penny, supra; R. R. v. Hardware Co., 143 N. C., 54; Jerome v. Shaw, 172 N. C., 862, 90 S. E., 764; Italian Star Line v. U. S. Shipping Bd. E. F. Corp., 53 F. (2d), 359, 80 A. L. R., 576, Anno. p. 580; Anno. 86 Am. St. Rep., 397.
When tbe allegations of tbe complaint are considered in tbe light of these principles of law, it becomes apparent that no cause of action for malicious abuse of process is stated.
Tbe alleged conduct of tbe defendant in bis business relations with plaintiff, if true, is not commendable. Even so, bis conduct prior to tbe issuance of tbe warrant does not give rise to a cause of action.
Defendant bad in bis possession a check of tbe plaintiff. Plaintiff bad no funds in bank and tbe check was dishonored. Defendant caused a warrant to be issued and plaintiff to be arrested, charged with a violation of tbe bad check law. Tbe issuance of said warrant was in furtherance of defendant’s plan to collect bis debt by criminal process. At tbe trial tbe plaintiff pleaded guilty (as shown by tbe judgment) or tbe magistrate found him guilty (as alleged by plaintiff). Tbe pronouncement of judgment was held open for a week. In tbe interim plaintiff paid tbe cheek and costs. Defendant surrendered tbe check and notified tbe magistrate bis claim bad been paid. Tbe magistrate thereafter entered judgment discharging plaintiff on condition be pay tbe costs.
Where then is tbe allegation of any act on tbe part of tbe defendant wbicb constitutes tbe misuse of tbe process of tbe court ? Tbe magistrate did not pronounce judgment immediately, but this was not at tbe instance or on tbe request of tbe defendant. Was it to give plaintiff an opportunity to raise tbe money due tbe defendant ? It is not so alleged.
Defendant did not demaud bis money under threat of prosecution. He did not seek a judgment requiring plaintiff to pay. His one and only act after tbe issuance of tbe warrant, as alleged by plaintiff, was to accept bis money together with tbe cost as tendered by plaintiff, surrender tbe check, and notify tbe magistrate that be bad been paid. In this there was no perversion of tbe writ.
*705“Defendant’s suit may bave been unlawful, and tbe allegations upon which it was based may have been false in fact, but he pursued the regular and usual procedure of the law.” Wright v. Harris, supra.
Jackson v. Telegraph Co., 139 N. C., 347, is factually distinguishable. See Wright v. Harris, supra.
As the complaint fails to state a cause of action for abuse of process, the questions presented by the appeal need not be discussed.
Demurrer sustained.