Topic 1. Arrest, Attachment, etc., as the Damage

$305. No Legal Process resorted to; (1) Distraint of Property. A defendant, being a private person, is excused for a disseisin or trespass to a plaintiff's personalty (distraint), made for the purpose of exacting justice from the plaintiff, but without the authority of judicial process, only when

(a) the plaintiff has by contract given a license thereto, or

(b) the defendant already by law has a lien on such personalty in his possession, or

(c) the personalty is an animal found doing damage on the defendant's realty.

The old law had plenty of rules permitting self-help by distraint; but they have now practically all disappeared, except the part represented in Clause (c). Thus, arrest of the person remains the only measure now licensed by way of self-help to obtaining justice.

§ 306. Same: (2) Arrest of Person. A defendant, being a private person, is excused for an arrest of the plaintiff made for the purpose of bringing him to justice, only when the plaintiff's supposed default is a crime, not a civil wrong; and then only as follows:

§ 307. If the alleged crime (a) is a misdemeanor, then only in case

(1) it was in fact committed, and (2) the plaintiff was in fact the doer, and

(3) the defendant was present at the time of the act or of its impending renewal, and

(4) made the arrest at the time or in fresh pursuit;1

(2) the defendant had reasonable ground for suspecting the plaintiff to be the doer.3

Clause b (2) represents the orthodox common-law rule. Clause b (2) in brackets is an anomalous rule introduced by statute in some States.

§ 309. Legal Process resorted to; (1) Process obtained without Just Cause (Malicious Prosecution). A defendant, being a private person, is excused for an arrest or attachment of the plaintiff's person or goods, or any kindred damage incident to litigation and actionable under § 145, ante, when the damage was done by judicial process of any sort issued at the defendant's instigation, for just cause and without malice; i. e., when any one of the following conditions is fulfilled:

either (a) the plaintiff was in fact guilty of the wrong as charged (just cause);

or, (b) the defendant believed and had probable ground to believe the defendant guilty (just cause);

or, (c) the defendant resorted to legal process for the purpose of securing justice upon the plaintiff, and not primarily to gratify personal malice or spite.

§ 310. Same: Pleading. The defendant has not the burden of pleading and proving the existence of any one of the three facts which thus afford

him excuses; the plaintiff has the burden of proving and pleading the non-existence of all of the three; i. e. the circumstance that the defendant resorted to legal process is of itself an excuse which protects him, unless

§ 308. If the alleged crime (b) is a the plaintiff proves that no one of the felony, then only in case

three additional facts existed.

(1) the felony was in fact committed, Herein is seen the contrast between and the positions of the defendant when [(2) the plaintiff was in fact the relying on self-help, under §§ 306-308 doer,2 or] ante, and when resorting to legal pro

1 Timothy v. Simpson, No. 962; Palmer v. R. Co., No. 967; Stephen, No. 964; Knickerbocker S. Co. v. Cusack, No. 969.

2 Enright v. Gibson, No. 968; Wakeley v. Hart, No. 965; Palmer v. R. Co., No. 967.

Allen v. Wright, No. 963; Burns v. Eden, No. 966.

favor.3

ceedings; the wisdom of settling con- show the now plaintiff's actual guilt, troversies in the latter mode, and the irrespective of the termination of the impracticability of encouraging that original proceeding in the latter's mode of settlement without granting liberal immunity to applicants for justice, is here reflected in the rules of law. The contrast appears as follows: Without Legal Process: Defendant is justified (1) when plaintiff was guilty; yet, for a misdemeanor, the arrest must be immediate; or, (2) when plaintiff was not guilty, but probable cause existed; yet here only for felonies, and when somebody was guilty, and by some laws not even then. And defendant must prove that one or the other of these justifications existed.

With Legal Process. Defendant is justified (1) when plaintiff was guilty; or, (2) though plaintiff was not guilty, but probable cause existed; or (3) though plaintiff was not guilty, and probable cause did not exist, but an honest purpose of justice existed. And plaintiff must prove that no one of these justifications existed.

§ 311. Same: Plaintiff's Innocence; Termination of Prior Suit. (1) The issue of the plaintiff's innocence of the charge, as required to be shown by him (par. (a), § 309), is restricted to the inquiry whether the original proceeding against him terminated in his favor and thus vindicated him.1

The reason for this is to prevent the waste of time and the uncertainty of litigation that would be involved in re-trying in the present case the issue of the former one; and an unfavorable termination shows that there was at least probable cause.

(2) Where the original proceeding resulted in the now plaintiff's release but without final action by the Court, it is not deemed to have terminated in his favor if it ceased because of any consent or procurement or obstruction on the now plaintiff's part.2

The reason for this is that the original hearing may have failed to obtain all the evidence, and if the now plaintiff really was guilty, the now defendant ought surely to be justified; while, if such had been the case when the now plaintiff was found guilty, the finding would at least show probable cause.

§ 312. Same: Defendant's Probable Cause. The issue of probable cause (par. (b), § 309) depends on the circumstances as existing in the now defendant's belief at the time of instituting the original proceedings; and is a question for the jury, subject to the judge's instructions in so far as the law has declared any concrete rules for the sufficiency of specific facts as probable cause.4

§ 313. Same: Defendant's Malice. (1) for the jury. The issue of malice (par. (c), § 309) is

of probable cause may of themselves (2) The circumstances showing lack be sufficient also to show malice.

(3) Malice may consist in (a) personal spite, as the object of using the legal process, [or (b), lack of sincere belief in the plaintiff's guilt.]

Process obtained with Just Cause, but § 314. Legal Process resorted to; (2) Wrongfully Used. A defendant, being a private person, is not excused for an arrest or attachment or kindred damage actionable under § 145, ante, when the damage was done by judicial process of any sort issued at the defendant's instigation, even though with just cause against the plaintiff, if the process is obtained or by his consent used for a purpose other than the cause

(3) But the now defendant may on which it might have been based.

1 Parker v. Langly, No. 974.

Cardival v. Smith, No. 975; Halberstadt v. Ins. Co., No. 977.

3 Carp v. Ins. Co., No. 976.

4 Moffatt v. Fisher, No. 978; Roy v. Goings, No. 979; Atchison T. & S. F. R.

Co. v. Watson, No. 980.

5 Barron v. Mason, No. 981.

§ 315. Same: What is Abuse. The irregular; otherwise, if it is merely plaintiff has the burden of proving erroneous. the abuse of the purpose of the pro

cess.

The reason for this is that parties He need not prove a lack of just seeking justice may fairly be required to use some lawful mode of process, cause, i. e., that he was innocent of and to make the selection at their own the crime or cause of action charged risk. If the error is due, however, not (as in par. (a), § 309), or that there solely to the party's mistake, but has was no probable ground for the defend- received the interim sanction of a ant's belief (as in par. (b), § 309).* magistrate, though erroneously, the The malice of par. (c), § 309, corre-party should not be held responsible. sponds to the abuse of the present rule Hence the distinction between (1) void and irregular and (2) erroneous (as defined in the next paragraph). process. Sometimes malice is said to be here also essential; but this is an incorrect mode of statement.

4

§ 317. Same: Void, Irregular, and He must prove that the process Erroneous Process. (a) Void process is has been obtained or used with a (1) process obtained from a court purpose of using its compulsion upon having no jurisdiction of the kind of the plaintiff to obtain from the plain- cause in question; or, (2) process tiff some payment or other advantage having an unauthorized scope as to not constituting a satisfaction of the time, place, person, or goods.5 claim or just cause for which the process was ostensibly issued."

(b) Irregular process is process which can issue only upon some facts or acts to be first alleged by the party applicant, but can be obtained merely on such allegations, and which for lack of such due allegation in the case in hand has been subsequently set aside by court order."

§ 316. Legal Process resorted to; (3) Process obtained Contrary to Lawful Procedure. A defendant, being a private person, is not excused for an arrest or attachment or kindred damage actionable under § 145, ante, when the damage was done by judicial process of any sort issued at the defendant's instigation, even though with just cause and with honest purpose, some magistrate's sanction passing if the process is in its nature void or

(c) Erroneous process is process which, though issued contrary to law, was obtained, not solely upon application of the party, but only after

upon the propriety of the process.7

Topic 2. Defamation Only as the Damage

§ 318. Defamation before Litigation. A defamatory utterance made by a person to a magistrate or ministerial officer out of court is excused, on the general principle of § 288, ante (protection of private and public interest), if it was made

(1) in the honest belief of its truth, and

(2) for a purpose not malicious, and (3) in the course of seeking legal process or assistance for the protection of a private right or the punishment of a crime.8

1 White v. Apsley Rubber Co., No. 986; Pittsburg, J., E. & E. R. Co. v. Wakefield H. Co., No. 987.

2 Baldwin v. Weed, No. 985; McClenny v. Inverarity, No. 988. Anomalous: Pittsburg R. Co. v. Wakefield H. Co., No. 987.

Baldwin v. Weed, No. 985; White v. Apsley Rubber Co., No. 986; McClenny v. Inverarity, No. 987.

4 Case of the Marshalsea, No. 989.

5 Parsons v. Lloyd, No. 990.

Bryan v. Congdon, No. 993.

7 Bryan v. Congdon, No. 993; Feld v. Loftis, No. 994.

8 Johnson v. Evans, No. 996; Garn v. Lockard, No. 997.

§ 319. The burden of pleading and| proving the excusing facts is on the defendant.

Note that here, as under the preceding topic, the burden of proof is on the defendant so long as he is not acting under cover of process issued; from that point on, the burden properly changes.

§ 320. Defamation during Litigation. A defamatory utterance made by a party to litigation is excused, if it is

made

[(1) in the honest belief of its truth, and with probable cause for that belief, and]1

[(2) for a purpose not malicious, and]2

(3) in any pleading, speech, affidavit, examination, or other customary part of a judicial proceeding,3 and

[(4) on a subject pertinent to the issue.1

Note that the rule for parties ought to be kept separate from the rule for counsel (post, § 348).

SUB-TITLE (VII): POLICIES SEEKING JUSTIFICATION IN THE NECESSITIES FOR INDEPENDENCE AND EFFICIENCY OF OFFICERS ADMINISTERING JUSTICE

§ 321. General Principle. Damage | ("discretion") 5 in pronouncing the law caused by an officer administering and the facts; justice is excused, if it results from an act done by the officer in pursuance of his power (duty) as defined by law. There are three classes of such officers:

2. Ministerial officers, i. e. those who initiate nothing by their own decision, but merely execute the orders of judicial officers;

3. Jurors, who are judicial officers within the scope allotted to them, i. e. the determination of facts.

1. Judicial officers, i. e. those whose function is, at some stage of a controversy, to decide the right and wrong thereof and to initiate orders for redress and punishment, and who are thus obliged to exercise their reasoning one.

Topic 1.

§ 322. General Rule. A judge is excused for any damage caused by an order or other act or utterance of his, done while acting as judge in any stage of a judicial proceeding; "

without any limitation as to

(1) the justice or correctness of his decision in respect to the law or the facts; or

(2) his honest belief, or probable cause therefor, in the justice or correctness of the decision; or

4, 5. Quasi-officers, i. e. counsel and witness, whose status is anomalous, but is something more than a private

Judge

§ 324. For a judge having inferior jurisdiction, the burden of proving juris

1 Torrey v. Field, No. 1001; Lescale v. Schwartz Co., No. 1004.

2 Hoar v. Wood, No. 1000; Johnson v. Brown, No. 1003.

Astley v. Younge, No. 999; Hoar v. Wood, No. 1000.

Hoar v. Wood, No. 1000; McLaughlin v. Cowley, No. 10002; Johnson v. Brown, No. 1003.

5 "Discretion" is an unfortunate word, implying free range of personal preference; the judge is legally not free in that sense.

Floyd v. Barker, No. 1014; Thomas v. Churton, No. 1015; Anderson v. Gorrie, No. 1016; Bradley v. Fisher, No. 1017.

7 Bradley v. Fisher, No. 1017; Cottam v. Oregon City, No. 1018; Heller v. Clarke, No. 1019.

diction is on him; otherwise for a Process preliminary to Jurisdiction. A judge having superior jurisdiction. judge is not excused where the act But the excuse applies equally to judges of both sorts, if jurisdiction is found to exist.1

§ 325. The judge's honest belief, on probable grounds, in the existence of jurisdiction, suffices.2

consists in issuing, preliminary to the investigation and decision of the cause, process of a sort forbidden by the law as fundamentally inconsistent with just procedure.3

The chief sorts of process thus forbidden are stated in §§ 330, 331, post. In such case, probable cause or

§ 326. Error in Issuing Unlawful | honest belief does not supply an excuse.

Topic 2. Ministerial Officers

SUB-TOPIC A. ARREST OR ATTACHMENT UNDER A JUDICIAL WARRANT

§ 327. General Rule. Harm caused [except (1) so far as the judge himself by a sheriff, policeman, bailiff, or other would have been excused by reason ministerial officer of justice, when of honest belief, based on probable acting as such, by an arrest of the grounds, in the legality of his jurisdicperson or an attachment of property, tion; and] 7 is excused if the act is done in obedience to an order (writ, warrant) issued by a judicial officer; 4

except as follows:

§ 328. Action under a Warrant Void or Voidable; (1) from a Judge Having Jurisdiction. Where the order issued from a judge having jurisdiction over the class of matters or persons in question, the officer does not lose his excuse by reason of any fact which makes the order legally erroneous in the particular case, [even though he has knowledge of such fact;] unless the litigation is one in which he is personally interested."

[except (2) so far as the non-existence of jurisdiction arose from a fact in the particular case; and then knowledge of this fact, on the principle of § 328, supra, does not take away his excuse.]

§ 330. Same: (3) Warrant issued for Unlawful Preliminary Process. Where the order issued to the officer is one preliminary to the trial of a cause, and involves a process forbidden by law as fundamentally inconsistent with just procedure, the officer is not excused, even though the cause is one in which the judge has jurisdiction over that class of matters and persons.

§ 331. Same: Kinds of Unlawful Pro§ 329. Same: (2) from a Judge Lack-cess. The following sorts of unlawful ing Jurisdiction. Where the order process fall within the foregoing rule: issued from a judge lacking jurisdic- (a) A warrant of arrest or attachtion over the class of matters or per- ment issued without prior sworn comsons in question, the officer is not plaint as prescribed by law; ' excused;"

1 Cottam v. Oregon City, No. 1018.

2 Cottam v. Oregon City, No. 1018.

3 Smith v. Boucher, No. 1047; John Wilkes' Case, No. 1048; Feld v. Loftis, No. 1051; Leach v. Money, No. 1052; Entick v. Carrington, No. 1058.

4 Case of the Marshalsea, No. 989; Anon., No. 1036.

5 Cotes v. Michell, No. 1037; Wilmarth v. Burt, No. 1038; Martin v. Collins, No. 1039; Johnson v. Randall, No. 1040; Tellefsen v. Fee, No. 1041.

Tellefsen v. Fee, No. 1041; Heller v. Clarke, No. 1043.

7 Cottam v. Oregon City, No. 1019 (point 2).

8 Tellefsen v. Fee, No. 1041 (dissenting opinion).

• Smith v. Boucher, No. 1047; John Wilkes' Case, No. 1048; Housh v. People, No. 1050; Feld v. Loftis, No. 1051.