dissenting: In dissenting, I should like to suggest a correction of an inadvertence in the statement. I think it will be found that there was only one judgment by Fesperman, J. P., and this was made after defendant had been given a week t,o get up the money. The defendant carried this money, together with $6.40 costs, to Fesperman, and the judgment followed. This, of itself, is evidence to go to the jury of his control and abuse of the process under any label we might apply to the proceeding.
The necessary elements in an action for malicious prosecution, as tersely stated in Jaffe v. Stone, 114 Pac. (2d), 335, are (1) a judicial proceeding favorably terminated; (2) lack of probable cause; and (3) malice. Contrasted with an action for abuse of process, our own Court observed: “In an action for malicious prosecution there must be shown (1) malice and (2) want of probable cause and (3) that the former proceeding has terminated. R. R. v. Hardware Co., 138 N. C., 175. In an action for abuse of process it is not necessary to show either of these three things.” R. R. v. Hardware Co., 143 N. C., 54, 55, 55 S. E., 422.
With these handicaps removed, the complaint states a cause of action for abuse of process.
Imprimis, we must understand that oppression under color of legal process, as a cause of action, does not necessarily fall either on one side or the other of a strict dividing line or become legally nonexistent. Not infrequently the same series of transactions may develop both infractions of duty with corresponding legal liability. Thus while it is usually, and correctly, stated that a cause of action for abuse of process arises when' a writ is regularly issued and is used for an ulterior purpose not authorized by law, it is not meant that the proceedings leading up to its issue are impeccable or bona 'fide, or free from condemnation of law. Process maliciously sued out, and without probable cause, may be the subject of abuse of process as well as process the issue of which is lawfully procured.
“The facts of a case may at once justify an action either for malicious prosecution or for the abuse of process. In other words, an abuse of *706process may occur in tbe course of a prosecution which, has been malicious and wrongful throughout.” 80 A. L. R., 581. Consouland v. Rosomano, 176 Fed., 481; McGann v. Allen, 105 Conn., 177, 14 Atl., 810; Brantley v. Rhodes-Haverty Furniture Co., 131 Ga., 276, 62 S. E., 222; Wright v. Harris, 160 N. C., 542, 76 S. E., 489.
This brings us to the question whether the motive and conduct of defendant in suing out and prosecuting the writ may be considered as within the constituent elements of abuse of.process, and to what extent the factual situation throughout the transaction may determine whether the wrong inflicted on the plaintiff is properly abuse of process rather than malicious prosecution. Jackson v. Telegraph Co., 139 N. C., 347, 51 S. E., 1015.
Abuse of process is variously defined in the texts and decisions as follows: “Abuse of legal process consists in the malicious misuse or misapplication of that process to accomplish some purpose not warranted in 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.” 1 Am. Jur., Abuse of Process, sec. 2. “If a process, either civil or criminal, is wilfully made use of for a purpose not justified by the law, this is an abuse for which action will lie.” 1 Cooley on Torts, 3d Ed., p. 354. “An abuse of process is some unlawful use of the process for the accomplishment of some end foreign to the purpose for which it may be issued.” Carpenter v. Hanes, 167 N. C., 551, 554, 83 S. E., 577.
A more cautious approach to definition is made by the Court in Carpenier v. Hanes, supra: “The illegality or maliciousness of the proceeding leading up to it [the issue of the writ] does not determine its abuse in law as much as the unlawful or oppressive use of it after it is issued for the purpose of coercing or harassing the defendant in some ■way.”
Definitions of abuse of process ordinarily recapitulate ease history rather than the inherent or substantial characteristics of the condemned practice. The individuation is therefore likely to neglect exceptions which have long been recognized as giving rise to actionable abuse of process, because of the peculiar facts involved, their outstanding oppression, as offensive to public policy as it is injurious to the individual, although an action for malicious prosecution might lie. These excep-. tions do not base the abuse of process with technical strictness on conduct of the defendant subsequent to the issue of the writ. Instances are not wanting where the Court has found that the antecedent acts or the set purpose of the defendant, coupled with the unlawful issuing of the process for a manifestly ulterior purpose and its subsequent prosecution, all in close and continuous sequence, have been held to constitute abuse of process.
*707Jackson v. Telegraph Co., supra, cannot be disposed of on the theory that it is distinguished by factual differences from the present case, or that it is so distinguished in the Harris case, supra. Wright v. Harris, supra, distinguished it, as abuse of process, from the case then being considered, malicious prosecution, and reiterated its authority. In neither the Jackson case, supra, nor Grainger v. Hall, 4 Bing. N. C., 212 (33 Eng. Com. Law, 328), the principle of which it adopts, did the defendant do any act whatever with regard to the process after it was issued— they simply let nature take its course.
In Jackson v. Telegraph Co., supra, McManus, the agent of the defendant company, was forbidden to go upon the premises of Jackson, the owner, to erect poles and wires. In order to secure the absence of J ackson while the poles could be erected and the wires strung, McManus swore out a warrant and caused his arrest. It is true that after the warrant was issued, McManus told the sheriff to arrest Jackson, but that was no more than the writ commanded. Stressing the declaration of McManus immediately before the writ was issued that he would put Jackson “out of the way,” and that such was the purpose of the warrant, this Court held that Jackson had a good cause of action for abuse of process; and in a subsequent case, Wright v. Harris, supra, the Court declared the principle in the J ackson case, supra, to be analogous to that in Grainger v. Hall, supra. The facts in the Grainger case, supra, as stated in Wright v. Harris, supra, were these:
“Plaintiff was on the eve of sailing from port in his smack, of which he was the master, and, as the declaration runs, upon plaintiff refusing to comply with an unjust demand for goods not embraced in the mortgage given by plaintiff to secure his debt to defendants, on pain of being refused the proper registry or clearance for sailing, or to submit to any unlawful exaction by them, the latter thereupon, ‘wrongfully and unjustly contriving and intending, as aforesaid, to imprison, harass, oppress, injure, and impoverish the plaintiff, and to cause and procure him to be arrested and imprisoned, and to prevent his making and prosecuting any voyages in his smack or vessel, and wholly to ruin the plaintiff thereby, they, well knowing that plaintiff was entirely unprepared and unprovided with bail/ falsely and maliciously caused the arrest of plaintiff, under a writ of capias, which they had caused ‘to be sued and prosecuted out of the Court of our Lord the King of the Bench at 'Westminster/ for the purpose of using it, not to collect an honest debt in a legal way, but to wrong and oppress the plaintiff. This case is much like that of Jackson v. Telegraph Co., supra, which was decided by this Court, and has several times been cited by us as authority upon the subjects of the ‘abuse of process.’ ”
*708It is indeed difficult to see why the bringing into existence of a false criminal warrant, with the immediate purpose of its abuse in the collection of a debt, and the further prosecution of the case until this ulterior purpose is accomplished, could be classed otherwise than abuse of process, carrying with it ab initio the legal incidents and remedial procedure peculiar to that form of action. In the case at bar, just as in the Grainger case, supra, and the Jackson case, supra, the wrongful suing out of the process and its prosecution brought about in continuous sequence the expected conditions of duress of which the defendant was the beneficiary, under conditions which are hardly consistent with his innocence.
In the case at bar, taking the complaint to be true, we note a practice on the part of the defendant which is perhaps not unprecedented or inexperienced by the seeker after small loans or small credits. The defendant required the plaintiff, who sought to borrow $25, to sign a check for that amount, prepared by defendant and drawn indifferently on a bank in which, as both of them knew, plaintiff had no money. In this way it might be made to appear that it was a cash transaction; and plaintiff might be prosecuted for crime in ease the loan was not paid. With that purpose in view, defendant finally presented the check at the bank and carried out his scheme of collection by causing plaintiff’s arrest. He followed- the prosecution; and during the interim of a week given the plaintiff to get up the money, he not only received payment for the debt, which ho ordinarily had the right to do, but also collected $6.40 costs, and reported that fact to the justice of the peace, upon which his zeal for the public welfare rapidly cooled. The justice, in frank recognition of the character of the proceeding, ended the case “as the check had been paid.”
As between the parties who both knew that at the time of drawing the cheek the drawer had no money in the bank, the check was no more than an acknowledgment of debt; and its use in the manner alleged is simply to make the liberty of the citizen the security for the debt, if the creditor can succeed in prostituting the process of the court to that ulterior purpose.
I am not so much interested, in this case, in breaking up the vicious small loan practices as I am in removing the State of North Carolina from its shadow, and breaking up the abuse of process which constitutes the security for the loan and renders a nefarious business prosperous.
I think the pleading states a cause of action, and the demurrer should be overruled.
DeviN, J., concurs in dissent.