Art. 11. Malicious Abuse of Process. states the law of this action as follows: There is no doubt that an action lies for the malicious abuse of lawful process, 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 an arrest or other proceeding upon the process was justifiable and proper in its inception. But the grievances to be redressed arise in consequence of subsequent proceedings. For example, if, after the arrest, upon civil or criminal process, the person arrested is subjected to unwarrantable insults and indignities, is treated cruelly, 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 unite with the officer, in doing the wrong. * * * "There is a distinction between a malicious use and a malicious abuse of legal process. An abuse is where the party employs it for some unlawful object, not the purpose it is intended by law to cffect; in other words, perversion of it. On the other hand, legal process, civil or criminal, may be maliciously used so as to give rise to a cause of action where no object is contemplated to be gained by it other than its proper effect and execution." The following authorities are cited to the point: Johnson v. Reed, 136 Mass. 423, citing Page v. Cushing, 38 Me. 523. See Peters v. Tunell, 43 Minn. 459, 45 N. W. 866; Casey v. Hanrick, 69 Tex. 44, 6 S. W. 405; Wood v. Bailey (Mass.), 11 N. E. 573; Emery v. Ginnan, 24 Ill. App. 65; Cuhady v. Powell, 35 Ill. App. 29; Banrett v. Reed, 51 Pa. St. 190; Savage v. Brewer, 16 Pick. 453; Mayer v. Walter, 64 Pa. St. 285, followed in Eberly y. Rupp, 90 Pa. St. 259; Juchter v. Boehm, 67 Ga. 538; Crusselle v. Pugh, 71 Ga. 747; Emerson v. Cochran, 111 Pa. St. 619; Smith v. Weeks, 60 Wis. 94. In cases where the process is valid, an officer may still render himself liable for its abuse; a judicial officer may sometimes become liable for malicious abuse of legal process, as where they employ it for some unlawful object, not being the object for which it was intended by law. Newell on Malicious Prosecution, $$ 67, 78, citing Berrier v. Morehead, 22 Nebr. 687, 36 N. W. 118; Page v. Cushing, 38 Mo. 523; Mechem on Public Officers, § 771; Mayer v. Walter, 64 Pa. St. 283, sustains the language of the extracts from Slomer v. People, 25 Ill. 70; Green v. Rumsey, 2 Wend. 611; Hackett v. King, 6 Allen, 59. Art. 11. Malicious Abuse of Process. In Holley v. Mix, 3 Wend. 351, it was held that false imprisonment will lie against an officer and the complainant in a criminal prosecution where they combine and extort money from a party accused by operating upon his fears, although the party be in the custody of the officer, under a valid warrant, issued upon a charge of felony. In note to that case, it is said that one who abuses the authority in fact does not become thereby a trespasser ab initio ; but otherwise, if he abuse an authority in law, citing Van Brunt v. Schenck, 13 Johns. 414; Allen v. Crofoot, 5 Wend. 506; Dumont v. Smith, 4 Den. 319; Carnrick v. Myers, 14 Barb. 9. As to when one becames a trespasser ab initio, see "The Six Carpenters' Case," 8 Coke, 290. Entering up judgment and suing out execution after a demand is satisfied is malicious abuse of process. Barnett v. Reed, 51 Pa. St. 190. Levying execution for an excessive amount is malicious abuse of process. Sommer v. Wilt, 4 S. & R. 19; Churchill v. Siggers, 3 El. & Black. 929. Suing out an attachment for an amount greatly in excess of the debt is malicious abuse of process. Savage v. Brewer, 16 Pick. 453; Moody v. Detsch, 85 Mo. 237. An abuse of a lawful arrest is also false imprisonment, as cruelly treating the arrested person, insulting him, depriving him of proper food, imposing on him undue hardships, extorting money from him, or doing to him any other like wrong not within the process. Bishop, § 210. In Baldwin v. Weed, 17 Wend. 224 (233), an action was brought for malicious prosecution, which, it was held, could not be sustained upon the process governing that action. Nelson, Ch. J., in so holding, expresses the view that an action for trespass, assault, and false imprisonment should have been brought and was the proper remedy for excess of authority and abuse of process. Citing Rodgers v. Brewster, 5 Johns. 125, which is in turn cited in Blakeley v. Weaver, 46 Hun, 174 (175), to the point that, while reasonable intendments may go in support of official purposes and acts of ministerial officers, they will be chargeable for an abuse of their authority in the execution of process which results in unreasonable and unnecessary oppression or prejudice to the persons against whom, or against whose property, it is issued. Citing also Platt v. Sherry, 7 Wend. 236. Art. 11. Malicious Abuse of Process. In the latter case it is said that, for maliciously and unreasonably executing process, with intent to oppress, for keeping property in an unsafe place upon execution, and exposing it to destruction, and in numerous other instances, the only remedy is at common law. Citing Jenner v. Joliffe, 9 Johns. 381. Where the process of the court is illegally and wrongfully used to compel the surrender of property or rights, the right of action accrues to the party injured. Hazard v. Harding, 63 How. Pr. 327. In Brown v. Feeter, 7 Wend. 301, it was held that an action lies against a party who wrongfully and willfully takes out an execution under a judgment, which he knows to be paid and satisfied, whereby the property of the defendant is taken and sold, and to support the action it is not necessary to allege and prove actual malice. If cruelty, malice, or oppression appear to have governed or aggravated the imprisonment, they shall not cover themselves with a thin veil of legal forms, nor escape under a cover of a justification the most technically regular. 1 T. R. 536; Esp. Dig. 323. Classed as a principle from this case that, "though the original arrest may be warrantable, yet for any subsequent oppression or cruelty an action lies." Cited Doyle v. Russell, 30 Barb. 300 (305). In Bebinger v. Sweet, 1 Abb. N. C. 263, it is held that a complaint alleging that defendant led plaintiff into making a hard and unconscionable lease, and then, after plaintiff had sown crops, etc., turned him off and procured his arrest on a malicious charge of embezzlement and took possession of his household goods, and that all these acts were in pursuance to defendant's plan to damage plaintiff, states facts sufficient to constitute a cause of action for abuse of process. Neither a judgment creditor nor an officer is justified in using the process of the court aggressively to the injury of the debtor or any third person. A party who directs and the officer who makes the oppressive levy is responsible for the unlawful act; although there be no actual corruption or intentional fraud on the part of the sheriff, under such circumstances, yet, if he abuse his trust, he is answerable therefor. Cantine v. Clark, 41 Barb. 629. It is an abuse of the process of the court to issue execution upon a satisfied judgment, and seek to enforce the same by levying upon Art. 11. Malicious Abuse of Process. and selling the property of the defendant. Swann v. Saddlemyer, 8 Wend. 76, cited Buffalo Lubricating Oil Co. v. Everest, 30 Hun, 586. In Dishaw v. Wadleigh, 15 App. Div. 206, 44 N. Y. Supp. 207, 78 St. Rep. 207, in opinion Herrick, J., the authorities, with reference to abuse of process, are collated and considered. The conclusion arrived at is that, if legal process is willfully made use of for a purpose not justified by law, it is an abuse for which an action will lie. In such an action it is not necessary that the plaintiff should allege or prove that the proceeding complained of has terminated. So held where the defendant caused a subpoena and attachment to be issued, not for the purpose of procuring the attendance of the plaintiff as a witness in the former case, but, under the idea that such claim was small, he would pay it rather than submit to the discomfort and expense of attending court at a great distance from his residence. Held, that such a use of subpoenas. was a perversion and abuse of process of the court, and calculated to bring the administration of justice into reproach and contempt. Same case, 4 N. Y. Annot. Cas. 170, followed by note on "Actions for Abuse of Process." An officer may also become liable for arresting or holding a person under process which has, for any reason, become void, as in Davis v. Bowe, 118 N. Y. 55, where it was held that, where a judgment was paid and discharged of record, and the sheriff received without objection an order to discharge the judgment debtor, who is out on bail and subsequently rearrested, he was liable for false imprisonment. 587 V. Liability for arrest on void or invalid process. 575 X. Defenses ... 603 605 606 XI. Imprisonment of various classes of persons.. 612 To constitute the injury of false imprisonment there are two points requisite: First, the detention of the person; second, the unlawfulness of such detention. Every confinement of the person is imprisonment, whether it be in a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the public streets. 3 Bl. Comm. 127. "Freedom of the person includes immunity not only from the actual application of force, but from every kind of detention and restraint not authorized by law." Any application of such restraint constitutes the wrong of false imprisonment; which, though |