cure bail, *and keeping him imprisoned until, by stress [*190] thereof, he is compelled to surrender property to which

the other is not entitled. In these cases, proof of actual malice. is not important, except as it may tend to aggravate damages; it is enough that the process was willfully abused to accomplish some unlawful purpose."

Arrests for an Ulterior Purpose. One way in which process is sometimes abused, is by making use of it to accomplish not the ostensible purpose for which it is taken out, but some other purpose for which it is an illegitimate and unlawful means. An illustration is where, by means of a subpoena, and on pretence of desiring his testimony, a person is brought within the reach of process which otherwise could not have been served upon him. Here there may in strictness be no unlawful action, and possibly no suit would lie; but it is the duty of the court, where the service of the writ is brought about by deception through abuse of other process, or by any unlawful act, to take care that no benefit be derived from it. The effectual mode to accomplish this will be to set aside the service as unauthorized. It has, therefore, been very justly said that the courts will not tolerate service of process on any person who, for that purpose, has been deceitfully brought within their jurisdiction; a court will also protect from arrest "eundo et redeundo," not only the parties, but also the

the debtor. The court or judge, to whom a summary application is made for the debtor's liberation, can give no redress beyond putting an end to the process of execution on payment of the sum due, although, by the excess, the debtor may have suffered long imprisonment, and have been utterly ruined in his circumstances."

Grainger v. Hill, 4 Bing. N. C. 212; Krug . Ward, 77 Ill, 603. So filing a notice lis pendens charging that the owner was not the real owner. Smith . Smith, 20 Hun, 555. So arresting an engineer late at night when about to take out a train, when arrest might have been made during the day. Smith . Weeks, 60 Wis. 94. False imprisonment will lie for malicious abuse of lawful process after

arrest. Wood v. Graves, 144 Mass. 365. The action is confined to a use of process to compel defendant to do some collateral thing which he could not lawfully be compelled to do. Johnson v. Reed, 136 Mass. 421. And see Bartlett v. Christhilf, 13 Atl. Rep. 518 (Md.) To sustain an action for abuse of process both malice and want of probable cause, must be shown and advice of counsel may be a defense. Emerson v. Cochran, 111 Penn. St. 619; Eberly v. Rupp, 90 Penn. St. 259. See also Juchter v. Boehm, 67 Ga. 534; Crusselli v. Pugh, 71 Ga. 744; Contra, probable cause need not be shown. Hazard v. Harding, 63 How. Pr. 326.

2 See Stewart v. Cole, 46 Ala. 646.

witnesses, who in obedience to its process, or in furtherance of its proceedings, appear within its jurisdiction. So, if a party is

detained over Sunday, when civil process cannot be served, and is arrested the next day, he will be discharged; and so if he is detained on a void writ, or one that has become functus officio,' or without any writ at all, until one shall be obtained.' So if service is accomplished by unlawfully breaking into a dwelling

house. The principle is, that no one shall derive advan[*191] tage from *abuse of the process of the courts, or by his own fraud or other misconduct. And the principle should apply to cases where the process of extradition, either as between the States or as between one sovereignty and another, is resorted to for the purpose of obtaining service of civil process."

In some of the cases above mentioned, an action for false imprisonment would lie; but where there has been no actual illegal detention, the fraudulent use of the process to bring one within a jurisdiction must be actionable."

Officer Serving his own Process. The law will not permit an officer to serve process in a case in which he is a party or is the complainant. "The law wisely foreseeing that the ministers of

1 ROBINSON, J., in Slade v. Joseph, 5 Daly, 187. See Luttin v. Benin, 11 Mod. 50; United States v. Edme, 9 S. & R. 147; Goupil v. Simonson, 3 Abb. Pr. 474. The court will not sanction any attempt to bring a party within its jurisdiction by fraud or misrepresentation. Carpenter v. Spooner, 2 Sanf. 717, 718; Baker v. Wales, 45 How. Pr. 137; McNab v. Bennett, 64 Ill. 158. Service of process on one fraudulently brought within the jurisdic tion is null and void. Wood v. Wood, 78 Ky. 624; Duringer v. Moschino, 93 Ind. 495. But the arrest of a wit ness is not a cause of action apart from malice and want of probable cause. The remedy is by application for discharge. Smith v. Jones, 76 Me. 138.

2 Lyford v. Tyrrel, Anstr. 85; Wells . Gurney, 8. B. & C. 769. Procuring arrest in order to serve other pro

cess is an abuse of process. Service will be set aside. Byler v. Jones, 79 Mo. 261, 22 Mo. App. 623.

Loveridge. Plaistow, 2 H. Bl. 29; Ex parte Wilson, 1 Atk. 152.

Birch. Prodger, 4 B. & P. 135; Barlow v. Hall, 2 Anstr. 462.

5 Ilsley v. Nichols, 12 Pick. 270; People v. Hubbard, 24 Wend. 369; Swain v. Mizner, 8 Gray, 182.

• See Wharton, Conf. L. § 2965; In re Hawes, 4 Am. Law Times Rep. (s. 8.) 524; Compton v. Wilder, 40 Ohio St. 130. But if the creditor has had no part in the extradition he may proceed in a civil action. Nichols . Goodheart, 5 Ill. App. 574.

7 Where those not privy to the fraud obtain service by means thereof, such service is valid. Slade . Joseph, 5 Daly, 187. See State v. Ross, 21 Iowa, 467; Adriance . Lagrave, 59 N. Y. 110.

justice should be freed, as far as practicable, from all the improper bias which may result from self-interest, has declared that no man shall be his own officer, and that no one shall in his own person, and by his own hand, do himself right by legal process. Therefore, where an officer is interested, it declares that another shall act; and this, in principle, applies to all, though to some with greater, others with less, force." Nor can any reasonable distinction be taken as respects the nature of the process or the degree of interest; the broad ground is the safest, that no officer who is interested in a suit, or who is even a party to it without interest, shall serve any process appertaining to it from the commencement to the conclusion." This is by no means a mere technical rule, but as the law, upon very imperative reasons, makes official returns conclusive for very many purposes, a different doctrine would be equivalent, in numerous cases, to making the officer judge in his own cause, and placing the other party at his mercy. A service, therefore, by the officer in such a case must be a mere nullity.

*Where an officer cannot act, neither can the deputy, [*192] since the deputy can act only for him and in his name.

And if the officer is not a party, but is the husband of a party this also would disqualify him."

Arrest of Privileged Persons.

1 COLCOCK, J., in Singletary v. Carter, 1 Bailey, 467.

Singletary v. Carter, 1 Bailey, 467; Knott o. Jarboe, 1 Met. (Ky.) 504; Gage o. Graffan, 11 Mass. 181; Chambers v. Thomas, 3 A. K. Marsh, 536; Boykin . Edwards, 21 Ala. 261; Woods. Gilson, 17 Ill. 218; Ford v. Dyer, 26 Miss. 243; Filkins v. O'Sullivan, 79 Ill. 524.

It is sometimes forbidden by statute, but where that is the case the statute is generally looked upon as affirming common law principles. See Knott v. Jarboe, 1 Met. (Ky.) 504. Gage v. Graffan, 11 Mass. 181; May . Walters, 2 McCord, 470.

See Scanlan v. Turner, 1 Bailey, 421. The exclusion ought to go fur

The arrest of a person privi

ther, and embrace near kinship, and perhaps does. One difficulty may be encountered in some of our statutes, which make provision for a service by some other officer when a sheriff is interested or a party, but do not go further.

It is held in New York that the officer may serve the process in his own favor by which suit is commenced, if it is not process of arrest. Bennett v. Fuller, 4 Johns. 486; Tuttle v. Hunt, 2 Cow. 436; Putnam v. Man, 3 Wend. 202. The danger of such a doctrine is perceived in the last case, in which it is held that the constable's return of service of a summons in his own favor is not traversable.

leged from arrest is not a trespass, even though the officer may be aware of the facts. It is only voidable; the party may waive his privilege, or at his option he may apply for his discharge to the court in which the suit is commenced, or on habeas corpus: and where the privilege is given on public grounds, or for the benefit of another, he may be discharged on the proper applica tion of any one concerned. Thus, if a witness is arrested while in attendance on court as such, the party who has subpoenaed him may move for his discharge, or the court, of its own motion, may order it.'

1 Blight . Fisher, Pet. C. C. 41; Tarlton v. Fisher, Doug. 671; Magnay v. Burt, 5 Q. B. 381; Yearsley 0. Heane, 14 M. & W. 322, 334; Fletcher v Baxter, 2 Aik. 224; Waterman v. Merritt, 7 R. I. 345; Fox v. Wood, 1 Rawle, 143; Aldrich v. Aldrich, 8 Met. 102; Wilmarth v. Burt, 7 Met. 257; Smith v. Jones, 76 Me. 138. The exemption extends to service of civil summons. In re Healey, 53 Vt. 694; Kauffman . Kennedy, 25 Fed. Rep. 785. Gregg v. Sumner, 21 Ill. App. 110. But not to case of arrest for an indictable offense. Ex parte Levi, 28 Fed. Rep. 651.

Where one has come into the jurisdiction as a plaintiff and then been subpoenaed as a witness in another

court, he is privileged from service of process while such witness, to which he would not have been liable unless he had come into the jurisdiction. Small. Montgomery, 23 Fed. Rep. 707. One is privileged from service of a summons while in another state attending to taking of depositions to be used in suit of his in his own state, service being made before he can return home after the close of such taking. Green . Youngs, 17 Ill. App. 106. A non-resident defendant attending a U. S. Court at which his presence is necessary, is privileged from service of a new writ against him. Wilson Sewing Machine Co. ®. Wilson, 22 Fed. Rep. 803.

*CHAPTER VIL

THE WRONGS OF SLANDER AND LIBEL.

[*193]

The wrong of a malicious prosecution, which was considered in the preceding chapter, is akin to the wrongs known under the designation of slander and libel. Though it is injurious in that it is likely to subject the party to expense and trouble to make good his defense, it is also a most effective species of defamation, the defamatory matter being not only published, but made more formal, and apparently authoritative, by the machinery of the law being made use of for the purpose.

Slander and libel are different names for the same wrong accomplished in different ways. Slander is oral defamation published without legal excuse, and libel is defamation published by means of writing, printing, pictures, images, or anything that is the object of the sense of sight.'

By defamation is understood a false publication, calculated to bring one into disrepute.

Publication. In a legal sense, there is no wrong until the defamatory charge or representation is given to the world. This is done when it is put before one or more third persons; it is then said to be published. To say to a man's face any evil thing concerning him is no defamation; for though it may be annoying, aggravating, and possibly injurious to him in its effect upon his mind, and indirectly upon his business, still there is as yet no publication, and consequently nothing to affect the party's reputation. The reputation is not assailed, and cannot presumably be injured when the false charge is made only to the party himself.

'Mr. Townsend, in his Treatise on Slander and Libel, § 21, note, collects many definitions which have been given of these wrongs.