Wood v. Bailey

• Citation: 144 Mass. 365,11 N.E. 567
• Parties: WOOD v. BAILEY and another.
• Decision Date: 06 May 1887
• Court: United States State Supreme Judicial Court of Massachusetts

144 Mass. 365

11 N.E. 567

WOOD v. BAILEY and another.

Supreme Judicial Court of Massachusetts, Suffolk.

May 6, 1887

COUNSEL

B. Wadleigh and P.E. Tucker, for defendants.

It appeared at the trial that whatever was done was done under the control and direction of the county solicitor of Hillsboro county, New Hampshire, who corresponds to the district attorney in this commonwealth, and has by law the control and charge of all criminal proceedings in the court where the indictment was found. Gen.Laws N.H. c. 16, § 5; State v. Smith, 49 N.H. 155. It appeared from the testimony that allegations of time and amount are not material in indictments for embezzlement in New Hampshire and that indictments may there be amended in open court in such matters. State v. Blaisdell, 49 N.H. 81; State v. Caverly, 51 N.H. 446. See Cardival v Smith, 109 Mass. 158.

The defendants were entitled to the instructions set forth in the second prayer. It is well-settled law that an action for false imprisonment will not lie for acts done under and within the scope of the authority of valid process of a court of competent jurisdiction. Whenever an injury to a person is occasioned by regular process of a court of competent jurisdiction, though maliciously adopted, case is the proper remedy, and trespass is not sustainable. 1 Chit.Pl. (16th Amer. Ed.) 149, and cases cited. But no person who acts under a regular writ or warrant can be liable to this action however malicious his conduct; but case for the malicious motive and want of probable cause for the proceeding is the only suitable form of action. 1 Chit.Pl. (16th Amer. Ed.) 208, and cases cited; Plummer v. Dennett, 6 Greenl. 421, cases cited; Cassier v. Fales, 139 Mass. 463, 1 N.E. 922; Coupal v. Ward, 106 Mass. 289. See Mullen v. Brown, 138 Mass. 114; Colter v Lower, 35 Ind. 285. In this case the arrest and all the imprisonments were on valid legal process.

There is a class of cases where duress is set up as an answer to a contract, in which the term "false imprisonment" has been used as equivalent to duress, and which have been frequently erroneously cited as sustaining the proposition that an action of false imprisonment can be maintained in cases like this. Such are the following: Shaw v. Spooner, 9 N.H. 197; Hackett v. King, 6 Allen, 58; Taylor v. Jaques, 106 Mass. 291; Watkins v. Baird, 6 Mass. *511. That is, "duress" and "false imprisonment" are not synonymous terms, although so used in the cases above quoted. If "false imprisonment" is used in these cases in any other sense than that of "duress," it is directly opposed to the case of Mullen v. Brown, supra.

The third and fourth instructions prayed for should have been given. Neither malicious prosecution nor false imprisonment will lie; nor malicious prosecution, because the original case is not ended; and not false imprisonment, because the imprisonment was on legal process. There was no misuse or abuse of process by the officer or the keeper while the plaintiff was under arrest. If these deeds were given under duress, the plaintiff could bring actions at law or in equity to recover the land or annul the deeds as voidable. The warrant was not properly returned by the officer, but that would not have affected these defendants, even had it been a writ in a civil action. Plummer v. Dennett, 6 Greenl. 421. The action for abuse of legal process, if it be distinguishable from the action for mal. pro., is confined to cases of abuse of civil process. Hamilburgh v. Shepard, 119 Mass. 30; Amer.Lead.Cas. *223. The only case quoted under the head of abuse of legal process, which apparently decides that it may be extended to criminal process, is that of Page v. Cushing, 38 Me. 527. So far as this was held to be an action for conspiracy, the rulings of the court were incorrect. Parker v. Huntington, 2 Gray, 125. Even if the county solicitor's motives were bad, of which there is no evidence, his lawful acts would not thereby be made illegal. Morrison v. Howe, 120 Mass. 573; Cooley, Torts, 690; Wheat.Cont. § 487. But, even in cases for abuse of civil process, it must be shown that some damage was caused by the alleged abuse, or the action will not lie. Florence v. Jenings, 2 C.B. (N.S.) 462; Wellington v. Small, 3 Cush. 149; Morgan v. Bliss, 2 Mass. 111. See Grainger v. Hill, 4 Bing. (N.C.) 212.

The brief of the sureties, and the examination of Bailey, were improperly in the case. The action on the bond was against the principal and sureties jointly, and was tried against them jointly, but defended by them separately. Mr. Bailey, although counsel and party both, held the same relation to the case as counsel, for he was merely a surety, and took all his facts from Mr. Wood.

The jury should not have been allowed to consider the question as to the wrongfulness or maliciousness of the prosecution and arrest, as bearing upon the question whether the defendants afterwards abused the process.

A.W. Boardman, for plaintiff.

The evidence shows that no crime had been committed; and, if any had been, prosecution was barred by lapse of time. The defendants knew both these facts. It shows not only that want of probable cause from which malice is inferred, but malice itself. On the facts, the prosecution was barred, for the statute begins to run on the day of the commission of the offense. 1 Whart. § 444a, and note; Id. 449a. Amendments are limited to cases of "error or mistake." See Gen.Laws N.H. c. 260, § 13. So that, if the indictment remains as it is, the law is already in their way; and, if it is amended, the proof will be. The defendants knew that what was done was done with the assent of a majority of the directors. They must have known, therefore, that there was no offender and no offense. Rex v. Norman, Car. & M. 501; 11 Whart. § 1927; Com. v. Tuckerman, 10 Gray, 180; Com. v. Shepard, 1 Allen, 584; Com. v. Berry, 99 Mass. 428; Ross v. Innis, 35 Ill. 487; Com. v. Tuckerman, 10 Gray, 202; Com. v. Tobin, 108 Mass. 430. The degree of a crime, once completed, cannot be aggravated by the subsequent act or neglect of the criminal. The indictment was procured, and so was the requisition, not in the public interest, to bring an offender to justice, but to enforce the payment of a debt, and that was the only purpose of it. "No one is justified in doing a wrong or unlawful act upon the ground that he did it to obtain a lawful end." Wills v. Noyes, 12 Pick. 324. An arrest would have been refused by the governor of this commonwealth when there was not to be a fair trial in the demanding state. 3 Whart. 2953. "An abuse of authority in law, by using it for improper purposes, or beyond its due limits, or in any improper or illegal manner, is a forfeiture of all its protection." Barrett v. White, 3 N.H. 210. "Individuals cannot take the execution of the laws into their own hands; and it is the duty of every good citizen, if he knows of any offense against society, to bring the offender before the proper tribunal for inquiry, trial, and punishment." Com. v. Snelling, 15 Pick. 340; Shaw v. Spooner, 9 N.H. 197. The law neither justifies nor excuses their trifling with the plaintiff's liberty and good name, or experimenting with his fears. It was a wilful disregard of his rights." Johnson v. Ebberts, 6 Sawy. 538; Holley v. Mix, 3 Wend. 350. Each person who participates in a groundless prosecution is severally liable. Cotton v. Huidekoper, 2 Pen. & W. 148, 153. See Stone v. Crocker, 24 Pick. 83. If this second point needs further support, it will be found in the long delay before the indictment, the spur the judgment gave them, the driving away of Wood's bail, and in the abandonment of the prosecution after the machine had done all it was built for. The great crime was committed 11 years ago, and nobody whipped for it yet. 1 Whart. § 444; Bigelow, Torts, 82, 197; Cardival v. Smith, 109 Mass. 160.

The court rightly refused to give the fourth request for instruction. "It is sufficient if the plaintiff in his declaration state facts upon which, if proved, he would be entitled to a verdict." Graves v. Dawson, 130 Mass. 83. "Every restraint of the liberty of the person, if not justified by law, is false imprisonment." Com. v. Nickerson, 5 Allen, 518, 525; Parker v. Huntington, 2 Gray, 127; Skinner v. Gunton, Notes to Saunders' Reports, (1 Sgt. Williams' Ed. 229.)

The verdict shows that, whether Wood was guilty or not, or the prosecution barred or not, the law was misused and abused for the purpose of extortion, and eluded by a corrupt compromise and that the defendants "actively used the prosecution as a means of getting their debt;" that Bailey and Graves sought and found a ready tool in Burns to aid in their indicting, arresting, and holding Wood solely for the purpose of collecting their debt; and this was such misuse and abuse of process as to render the defendants liable for damages in this action. Bigelow, Torts, 119; Watkins v. Baird, 6 Mass. 506; Savage v. Brewer, 16 Pick. 453; Com. v. Nickerson, 5 Allen, 518, 525; Hackett v. King, 6 Allen, 58; Taylor v. Jaques, 106 Mass. 295; Fisher v. Deans, 107 Mass. 118; Johnson v. Reed, 136 Mass. 423; Shaw v. Spooner, 9 N.H. 197; Shaw v. Reed, 30 Me. 105; Page v. Cushing, 38 Me. 523; Bowen v. Buck, 28 Vt. 308; McMahon v. Smith, 47 Conn. 221; Juchter v. Boehm, 67 Ga. 534; Grainger v. Hill, Bigelow, Cas. Torts. And the plaintiff's right to recover damages for such misuse and abuse of process is not governed by the termination or non-termination of the criminal proceedings. Add. Torts, 257, and cases cited. Grainger v. Hill, 4 Bing. (N.C.) 212; Bigelow, Cas. Torts, p. 184; Page v. Cushing, 38 Me. 523. Besides, "the plaintiff is not in fault that the prosecution cannot be terminated by judgment upon a verdict." Graves v. Dawson, 133...