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not maintain an action for false imprisonment against either of the defendants. No action would lie for false imprisonment by reason of what was done in pursuance of the warrant of the governor in extraditing the plaintiff from Massachusetts to New Hampshire, or what was done in pursuance of any lawful precept issued upon the indictment in New Hampshire; but, if acts were done in excess of what was authorized, and if the process of the law was abused, the remedy might be by an action for false imprisonment. The court, therefore, properly declined to adopt the language of the defendants' second request, and all the rights of the defendants in respect to this were saved by the course of the instructions in relation to the wrongful use of process already commenced.

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 issned for a just cause, and is valid in form, and that the arrest or other proceeding upon the process was justifiable and proper in its inception.

But the grievance to be redressed arises in consequence of subsequent proceedings. For example, if, after an arrest upon civil or criminal process, the party arrested is subjected to unwarrantable insult and indignities; is treated with cruelty; 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 may unite with the officer in doing the wrong. It is sometimes said that the protection afforded by the process is lost, and that the officer becomes a trespasser ab initio. Esty v. Wilmot, 15 Gray, 168; Malcolm v. Spoor, 12 Metc. 279. This rule, however, is somewhat technical, and is hardly applicable to others than the officer himself. But the principle is general, and is applicable to all kinds of abuses outside of the proper service of lawful process, whether civil or criminal; that for every such wrong there is a remedy, not only against the officer whose duty it is to protect the person under arrest, but, also, against all others who may unite with him in inflicting the injury. Perhaps the most frequent form of such abuse is by working upon the fears of the person under arrest, for the purpose of extorting money or other property, or of compelling him to sign some paper, to give up some claim, or to do some other act, in accordance with the wishes of those who have control of the prosecution. The leading case upon this subject is Grainger v. Hill, 4 Bing. N. C. 212, where the owner of a vessel was arrested on civil process, and the officer, acting under the directions of the plaintiffs in the suit, used the process to compel the defendant therein to give up his ship's register, to which they had no right. He was held entitled to recover damages, not for maliciously putting the process in force, but for maliciously abusing it, to effect an object not within its proper scope. In Page v. Cushing, 38 Me. 523, the same doctrine was held applicable to the abuse of criminal process. Holley v. Mix, 3 Wend. 350, is to the same effect, and it was held that an action for false imprisonment will lie against an officer and a complainant in a criminal prosecution, where they combine and extort money from a party accused, by operating upon his fears, though the

VOL. XI.-29

party was in the custody of the officer under a valid warrant, issued upon a charge of felony. The case of Baldwin v. Weed, 17 Wend. 224, was an action for false imprisonment. The plaintiff had been indicted in New York; he was arrested in Vermont, and carried to New York for trial. The defendant, Weed, procured the requisition, was present at the arrest, and caused the plaintiff to be put into irons, with the purpose to secure two small debts. The plaintiff executed to Weed a bond for the delivery of property much in excess of the debts. The action for malicious prosecution failed, but the court — NELSON, J.-declared that an action of trespass, assault, and false imprisonment should have been brought, and was the appropriate remedy for the excess of authority and abuse of the process; and intimated to the plaintiff to amend his pleadings accordingly. See, also, Carlton v. Taylor, 50 Vt. 220; Mayer v. Walter, 64 Penn. St. 283. On similar grounds, an officer becomes responsible in damages, for abuse of process, or as trespasser ab initio, by reason of such abuse, who omits to give an impounded beast seasonable food and water while under his care- Adams v. Adams, 13 Pick. 384; or, who stays too long in a store where he has attached goods- Rowley v. Rice, 11 Metc. 337, Williams v. Powell, 101 Mass. 467; Davis v. Stone, 120 id. 228; or, who keeps a keeper too long in possession of attached property-Cutter v. Howe, 122 id. 541; or, who places in a dwellinghouse an unfit person as keeper, against the owner's remonstrance. Malcom v. Spoor, 12 Metc. 279.

In various other cases, where it has been said that the only remedy was by an action for malicious prosecution, the whole grievance complained of consisted in the original institution of the process, and no abuse in the mere manner of serving it was alleged. Such cases are Mullen v. Brown, 138 Mass. 114; Hamilburg v. Shepard, 119 id. 30; Coupal v. Ward, 106 id. 289; O'Brien v. Barry, id. 300. The case of Hackett v. King, 6 Allen, 58, was trover for the conversion of property which the plaintiff conveyed to the defendant under alleged duress. In Taylor v. Jaques, 106 Mass. 291, the question arose in another form, the action being on a promissory note, in defense to which the defendant alleged that his signature was procured by duress.

In examining the instructions of the learned judge to the jury in the present case no error is found. He made a careful discrimination between the remedy for a malicious prosecution and a malicious abuse of process in the manner of executing it. He instructed them explicitly that no damages should be given for any thing which occurred before the process was used at all by the officer, but only for what occurred after it began to be used upon the plaintiff, and after it began to be wrongfully used for the purpose of collecting the defendant's debt, and so used with their participation, by their direction or under their influence. He told them also, in effect, that it must be proved that the defendants, by influence which they were able to exert, or otherwise, actively used the prosecution as a means of getting their debt; and this he afterward explained and enforced by saying that it must be an influence which they brought to bear in some way upon those in charge of the proceedings. Under these instructions the jury

could not properly hold the defendants responsible for merely setting the criminal law in motion, and arresting the plaintiff and holding him in custody until his discharge, but only for some distinct act or omission, which amounted to a misuse or abuse of the process after it had issued, some indignity or oppression, beyond the mere fact of arrest and detention, some separate pressure to compel him to make the settlement.

The defendants contend that there was not sufficient evidence to warrant the jury in finding any such abuse of process. But it is unnecessary for us to go into a consideration of this question, since upon another ground the case will have to go to a new trial, and the evidence upon the new trial may not be the same. The magnitude of the verdict certainly leads to the fear that the jury may have failed to appreciate the legal grounds upon which the plaintiff's claim to damages must rest, but the question whether the damages are excessive is not before us, and no question is before us as to the rule of law as to the measure of damages.

In the admission of those expressions in Mr. Bailey's brief, which related to the assent of a majority of the board of directors to the payment of $4,261 to the plaintiff as competent evidence bearing upon the question of misuse of legal process, we think an error was made by which the defendants were prejudiced. The question arose in this way: There was an action by the Peterboro' Railroad Company against the plaintiff, who had been its treasurer, and the sureties upon his bond, who were the defendants in the present case, to recover for money alleged to have been wrongfully appropriated by the plaintiff to his own use, in payment of a claim for services, without the approval of the board of directors. The case was tried before a referee, who in his report set forth that the defendants "proposed to offer the testimony of a majority of the directors, who were present at the meeting when the claim was partly considered to show that they understood at that time that the bill was to be paid in full as presented; but the referee ruled that the proposed evidence would be incompetent," etc. The correctness of this ruling was controverted, and the case was argued on briefs before the supreme court of New Hampshire, the defendant Bailey submitting a brief in which he assumed as a fact the existence of the assent of a majority of the board of directors, according to the offer of proof before the referee.

This part of the brief was admitted in the present action against the defendants, as evidence that Bailey knew the fact to be as there assumed, and thus as evidence of the groundlessness of the prosecution against the plaintiff and thus as bearing somewhat on the question whether the defendants did or did not abuse the prosecution, after it had been instituted. But we think the statements of the brief had no just tendency to show any personal knowledge on Mr. Bailey's part, of the fact in question. In the trial of a cause the offers of counsel to prove certain facts do not usually imply that they have any personal knowledge thereof. Indeed the facts may be in dispute and counsel may know that they are in dispute, and nevertheless properly offer evidence to prove them. It is as if the counsel should say, "I wish to offer evidence tending to prove so and so. This will probably be controverted

by the other side. I wish to offer my evidence and to go to the jury upon the point." But the court says, "no; even if you succeed in proving what you claim to be the facts, it will not help you. The evidence, if true, is immaterial." There is in such case, of course, no finding of the fact. It remains a controverted question. But on the argument of the law question, whether the ruling of the court was right or not, the counsel and the court must assume, for the purpose of the discussion, that the fact existed as offered to be proved. The statements in the brief of Mr. Bailey amounted to no more than this. They did not import any personal knowledge on his part of the facts. By assuming them to be true, he made no admission, which justly could be put in evidence against him, after words as affecting him personally. For this reason only, a new trial must be had. Exceptions sustained.

NEW JERSEY COURT OF ERRORS AND APPEALS.

PARKER V. THE RECEIVER OF THE WASHOE MANUFACTURING COMPANY. March, 1887.

Where certain instruments purporting to be the deeds of a private corporation are shown to be sealed with the corporate seal, the testimony of a single corporate officer, whose duty might or might not make him cognizant of their execution, that he had no knowledge of corporate authority having been given to execute the instruments, should be deemed legally insufficient to overcome the presumption of due execution, to which the affixing of the corporate seal gives rise.*

In error to the supreme court.

Cortlandt Parker, Jr., for plaintiffs in error. Frank Bergen, for defendant in error.

DIXON, J. This writ of error brings up an order of the supreme court vacating a judgment entered therein by confession upon bond and warrant of attorney, in favor of the plaintiffs against the Washoe Manufacturing Company. The bond and warrant are executed under the seal of the company and the signature of the president, and the judgment is entered in conformity with the statute. The ground for vacating the judgment is briefly stated by the supreme court to be, that no authority appears or is shown in the president of the defendant company to confess the judgment, and Stokes v. New Jersey Pottery Co., 17 Vr. 237, is cited as establishing in that court, that the president of a corporation has no power, by virtue of his office as president, to execute a bond and warrant of attorney for the entry of a judgment against the corporation.

We think that the decision now before us ignores an important difference between the case just named and the present one, in this, that there *See Field Corp., § 292.

the bond and warrant were not either of them sealed with the common seal, and here, according to the proofs, both are so sealed. It was, therefore, necessary in that case to show by other evidence that the instruments. were executed by corporate authority, while in this case the presence of the corporate seal is itself sufficient, prima facie. When a corporate seal appears to be affixed to a deed, it is not necessary that the party producing the deed should prove by witnesses the fact of its having been regularly fixed, or that the major part of the corporation agreed; but if it be alleged to have been affixed by the hand of a stranger, that shall be proved by the party who alleges it-Baptist Church v. Mul ford, 3 Halst. 182—and he will be required to produce such evidence as shall be clear and satisfactory. Leggett v. Ñ. J. Manuf. & B'k'g

Co., Saxt. 541.

The controlling question in the cause, therefore, is not the mere question of fact, whether the president had actual authority to execute the instruments, which the supreme court decided against the plaintiffs; but the mixed question of law and fact, whether the probative force of the corporate seal is overcome, which the supreme court did not consider, and which, therefore, this court must settle.

The testimony adduced against the validity of the instruments is that of a single witness, who swears in substance that he was the secretary and director of The Washoe Manufacturing Company, a New York corporation; that there were five directors, of whom three constituted a quorum; that the president, who signed the bond and warrant, owned nine hundred and ninety-five shares of the stock - consisting of one thousand shares-and the five directors owned the balance; that the president, when he was appointed, was by resolution of the directors made the executive officer of the company; that he managed the affairs of the company, provided the money for it, employed the men, and, so far as the witness knew, carried on the business of the corporation; that the directors were all personal friends of the president, elected by his votes, and never overruled any action which he had taken; that he, the witness, supposed he had attended all the meetings of the directors, and kept their minutes; that he had never heard of such a meeting after January, 1884, and that the board had never, to his knowledge, authorized the president or any one else to confess this judgment which was entered upon a bond and warrant dated October 3, 1884. The witness did not produce the minutes which he said he had, nor did he state where he was about the time when these instruments were executed. The statutes of New York are not put in evidence to show when regular meetings of the directors of such companies should be held, or how special meetings may be called. The president is dead, and no other director was sworn.

We think that this testimony does not countervail the presumption in favor of the validity of the sealed instruments. Consistently with the evidence, it is easy to believe that a meeting of the directors, stated or special, was held in October, 1884, without the knowledge of the witness, and it is certain that, if at such a meeting the president asked for the sealing of these instruments, the board ordered them to be sealed. It would seriously impair just confidence in corporate deeds,

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