124 Va. 563 | Va. | 1919
delivered the opinion of the court.
Section 1 of an act of the General Assembly, approved March' 11, 1912 (Acts 1912, p. 232), declares, “that it shall be unlawful for any person to borrow money from any person, firm or corporation conducting a business as sales tobacco warehousemen upon a written promise or pledge to sell with or through said person, firm or corporation, any tobacco, and thereafter fail or refuse to comply with the conditions of said written promise or pledgeand section 2 thereof provides that any person who shall fail to comply with such written pledge, or to repay the amount borrowed, with legal interest, shall be guilty of a misdemeanor, and punished by fine, or imprisonment, or both.
A warrant, issued by a justice .in Halifax county, at the instance of Murray-Lacy and Company, tobacco ware-housemen, charging J. Y. Glidewell with having obtained from and failed to repay to them the sum of $93.00 under circumstances constituting a violation of this statute, was placed in the hands of J. T. Bass, a constable, of the county, who was also an employee of Murray-Lacy and Company, and, as such, charged with the duty of collecting outstanding obligations due to them. He took the warrant to the home of Glidewell, who resided in Lunenburg county, some six or seven miles from the town of Victoria, and
In order to show fully all the circumstances under which Glidewell made the settlement, the following additional incidents should be mentioned: He had walked from his home to Victoria to get medicine for his sick child, but whether Bass was informed of this fact does not appear. The child’s illness does not seem to have been regarded very seriously by him, as he remained in Victoria for some time after the settlement was made. He was told by Bass that unless the matter was settled he would not be released
Shortly after the termination, in the manner already set out, of the criminal prosecution against Glidewell, he instituted the present proceeding, by notice of motion, against Murray-Lacy & Co. and T. J. Bass, to recover damages of them alleged to have resulted from his arrest and imprisonment. The notice charged that the defendants wrongfully, unlawfully and maliciously sued out a criminal warrant against the,plaintiff, and caused his arrest thereunder, “not for the purpose of enforcing the criminal laws of the Commonwealth, but solely for the ulterior and unlawful purpose of enforcing the collection of a debt of which plaintiff would otherwise have been discharged.” The notice, which was entirely informal, did not iattempt to designate eo nomine the cause of action; but the petition upon which this writ of error was granted interprets it as “a tort consisting of the abuse of process in using the criminal law to collect a debt.” The case, as attempted to be made out by the plaintiff, was tried upon this interpretation, land we shall deal with it accordingly.
Upon the trial, there was a verdict and judgment for the defendants.
In Wood v. Graves, 144 Mass. 365, 11 N. E. 567, 59 Am. Rep. 95, the court said: “There is no doubt that an action lies for the malicious abuse of lawful procees, civil or criminal. It is to be assumed, in such a case, that the process was lawfully issued for ;a just cause, and is valid in form, and that the arrest or other proceeding upon the process was justifiable and proper in its inception. But the grievance to be redressed arises in consequence of subsequent proceedings. For example, if after arrest upon civil or criminal process, the person arrested is subjected to unwarrantable insults and indignities, is treated with cruelty, is deprived of proper food, or is otherwise treated with oppression and undue hardship, he has a remedy by an action against the officer, and against others who may unite with the officer in doing the wrong.”
Freeman, in a note to Bradshaw v. Frazier, 113 Iowa, 579, 85 N. W. 752, 86 Am. St. Rep. 406, says: “An action for the abuse of a process of arrest usually presupposes that the arrest under the process was proper in its inception, and is founded on grievances arising in consquence of subsequent proceedings,” citing Whitten v. Bennett, 86 Fed. 406, 30 C. C. A. 140; Wood v. Graves, supra.
In 1 Ruling Case Law, pp. 101-2, with reference to this particular cause of action, it is said: “There has been considerable confusion in the books as to the scope of the ac
In 1 Cooley on Torts (3d ed.), p. 355, the author says: “Two elements are necessary to an action for the malicious abuse of legal process: First, the existence of an ulterior purpose; and, second, an act in the use of the process not proper in the regular prosecution of the proceeding. Regular and legitimate use of process, though with a bad intention, is not a malicious abuse of process.” (Italics added.)
See also to the same general effect as the foregoing, 32 Cyc. 541; 3 Ann. Cas. 722, note; Malone v. Belcher, 216 Mass. 209, 103 N. E. 637, Ann. Cas. 1915A, 830, note 831-2.
The plaintiff’s case, however, when tested by the law as thus correctly stated by his counsel, cannot be maintained. It may be conceded that the first essential element of the tort, an ulterior motive, was established. To say the least of it, the evidence tended strongly to show that the real purpose of the defendants was not to enforce the criminal law, but to collect their debt, and, as a general proposition, it is. illegal to use the criminal processes of the- State merely to redress a private wrong. • But before this ulterior purpose can be made the basis of a recovery in an action for the abuse of process, it must be coupled with the second essential element, that is, with “an act in the use of the process not proper in the regular prosecution of the proceeding,” amounting to its perversion to some unlawful purpose. Proof of indirect motive will not alone sustain the action. (1 R. C. L. 103, 86 Am. St. Rep., note, p. 399, and other authorities cited supra.) It is at this point that the plaintiff’s case unmistakably breaks down.
Whatever motive and purpose the defendants might have had, what they actually did was in keeping with the object of the act of March 11, 1912, and with the general legislative policy of the State with reference to misdemeanors of a minor character for which the party aggrieved
We have seen that in Virginia settlements of this character are expressly provided for by statute as to misdemeanors like that for which the plaintiff in error was being prosecuted, and this is in accord with the general policy of the law. Of course, compounding or concealing crimes, or stifling prosecutions to defeat the ends of justice, will not be countenanced or permitted; but, as said in 3 Wharton’s Criminal Law, sec. 1877, p. 2079, “in prosecutions for offenses and cheats not involving any great offense against the public, the courts will encourage settlements between the parties as less injurious to the public than litigation.”
Our conclusion is that there was no abuse, no malicious use, and no perversion of the process sued out against the plaintiff in error. There was no extortion thereunder, no collection of money not due from him, and he was subjected to no oppression, and to no indignity except such as was incident to an orderly arrest under due and regular process. The averment in his notice of motion, that but for the criminal prosecution he “would have been discharged” from the payment of the debt, and the statement in his bill of particulars that he had been adjudicated a bankrupt, are not supported by any proof, and appear to have been abandoned. Whatever motive may have prompted the defendants, they had a moral and legal right to accept satisfaction and withdraw the prosecution substantially as they did; and there is no ground upon which the plaintiff can legally ask for damages against them in this action.
In the case of McClenny v. Inverarity, 80 Kan. 569, 103 Pac. 82, 24 L. R. A. (N. S.) 301, which more nearly supports the plaintiff’s contention than any other authority to which our attention has been called, “the evidence disclosed the fact that a warrant for the arrest of the plaintiff upon a criminal charge was used to collect a debt, and, it seems, to extort an additional amount;” and, moreover, there were aggravating and oppressive circumstances in that case in connection with the arrest.
Lockhart v. Bear, 117 N. C. 298, 23 S. H. 484, was a case in which a process of arrest' was used to force a debtor to pay a debt out of property legally exempt from execution, and thus became a case for recovery because the process was used to compel the accused to do something which he was under no legal obligation to do, and against which he would have had a good defense in a civil proceeding.
Shaw v. Spooner, 9 N. H. 197, 32 Am. Dec. 348, was a case in which a criminal prosecution was instituted against a
In Wood v. Graves, supra, a recovery was sustained, but the opinion in that case directly supports our conclusion here. That this is true is shown not only by our quotation therefrom in a previous paragraph, but from the following language with which that opinion, after reviewing the instructions, conclude: “Under these instructions, the jury could not properly hold the defendants responsible for merely setting the criminal law in motion, and arresting the plaintiff and holding him in custody until his discharge: but only for some distinct act or omission, which amounted to a misuse or abuse of the process after it had issued, some indignity or oppression beyond the mere fact of arrest and detention, some separate pressure to compel bim to make the settlement.”
We may well conclude this reference to the authorities cited for the plaintiff by saying, in the language of the court in Bartlett v. Christhilf, 69 Md. 219, 14 Atl. 518, “all these are instances in which the writ, regularly and properly sued out, was perverted, abused, and made an instrument of oppression”—a classification which does not embrace the case at bar.
Having reached the foregoing conclusions, it becomes unnecessary to discuss in detail the numerous assignments of error upon which we are asked to reverse the judgment of the lower court. They relate to instructions given or refused, to the admission of certain evidence, and to the refusal of the court to set aside the verdict as contrary to the law and the evidence.
There is no error in the judgment complained of, and it is affirmed.
Affirmed.