We see no error in the judgment of the court below. The charge of the court is not in the record and the presumption of law is that the court below charged the law applicable to the facts. The case was tried in the court below on the theory of “abuse of process.” The law in regard to abuse of process is well settled in this jurisdiction.

In Abernethy v. Burns, 210 N. C., 636 (639), we find: “There is this distinction between an action for malicious prosecution and one for abuse of process. In the former it is necessary to allege and to prove three things not required in the latter: (1) Malice; (2) want of probable cause, and (3) termination of proceeding upon which action is based (citing authorities). . . . 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 (citing authorities). . . . Speaking to the subject in Klander v. West, 205 N. C., 524, it was said: ‘In an action for abuse of process it is not *452necessary to show malice, want of probable cause, or termination of tbe action; and two essential elements are tbe existence of an ulterior purpose and an act in tbe use of tbe process not proper in tbe regular prosecution of tbe proceeding. Tbe act must be willful. Carpenter v. Hanes, 167 N. C., 551.’ ”

In abuse of process there are two essential elements: (1) The existence of an ulterior purpose; (2) a willful act in the use of tbe process not proper in tbe regular prosecution of tbe proceeding.

Tbe evidence all indicates that tbe process was used to collect a debt, if any existed, by using tbe criminal law for that purpose. Defendant said be would have plaintiff arrested if be took tbe deed without paying tbe interest. Tbe recorder, on tbe trial, informed tbe defendant that be could still have tbe .deed set aside. Defendant’s attorney made tbe statement, in prosécuting plaintiff on tbe trial in tbe recorder’s court for false pretense, “The reason why they did not sue me, because I didn’t have nothing and said they would get me for false pretense and they could get their money.” In tbe Superior Court tbe charge was changed to larceny. This and other evidence on the trial was sufficient to be submitted to tbe jury on abuse of process. Tbe process, it appears, was a whip to force tbe payment of an alleged indebtedness.

Taking tbe allegations in tbe complaint and tbe evidence adduced on tbe trial, the issue tendered and answered “Yes” will support tbe judgment “Did tbe defendant abuse tbe process of tbe courts by having-plaintiff indicted on 24 June, 1936, as alleged in the complaint?”

Tbe defendant excepted and assigned error to the judgment as follows : “It is thereupon considered, ordered, and adjudged that tbe plaintiff, Earl Ledford, have and recover of tbe defendant, B. A. Smith, the sum of $500.00, with interest thereon until paid, together with the costs of tbe action to be taxed by tbe clerk and execution will issue accordingly, and upon return of execution unsatisfied in whole or in part, execution will issue against tbe person of tbe defendant.” This exception and assignment of error cannot be sustained.

Citing again Klander v. West, 205 N. C., 524 (526), we find it there written: “To justify an execution against the person in an action for malicious prosecution there must be affirmative finding by tbe jury of express or actual malice. Watson v. Hilton, 203 N. C., 574; Harris v. Singletary, 193 N. C., 583; Swain v. Oahey, 190 N. C., 113, 116. In an action for abuse of process it is not necessary to show malice, want of probable cause, or termination of the action; tbe two essential elements are the existence of an ulterior purpose and an act in tbe use of tbe process not proper in tbe regular prosecution of the proceeding. Tbe act must be willful. Carpenter v, Hanes, 167 N. C., 551. In the absence of a finding of express malice or tbe willful abuse of process the *453person of the defendant cannot be taken in execution.” Ledford v. Emerson, 143 N. C., 527; Michael v. Leach, 166 N. C., 223; Foster v. Hyman, 197 N. C., 189; N. C. Code 1935 (Michie), secs. 767, 768.

Article I, sec. 16, of the Constitution of North Carolina, provides “There shall be no imprisonment for debt in this State except in cases for fraud.” This proviso of the Constitution has no application to actions of tort, but is confined to actions arising ex contractu. Long v. McLean, 88 N. C., 3.

In the present case the jury found abuse of process, which was willful according to the allegations of the complaint. A tort action “injury to person or property.” Sec. 768, supra.

For the reasons given, in the judgment of the court below, we find

No error.

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.