The execution of the process of the law does no injury.
All courts of law will take care that the process of the court is not made use of for the purpose of oppression and injustice ; though he is not to be considered oppressive and unjust who merely avails himself thereof to obtain his legal rights, however rigorous the remedy may seem to be ; and all are alike entitled to use the means which the law has provided for enforcing their legitimate rights. It is not the use, but the abuse of the process of law which makes an injury, and the misuser of the process of the law is a question of damages merely between the parties.
This maxim is used by Lord Coke to confirm the position taken by him that : If a man be imprisoned by order of law, the plaintiff may take a feoffment of him, or a bond to satisfy his debt, and to release the defendant, notwithstanding that imprisonment ; for the imprisonment was not by duress of imprisonment, because he was in prison by course of law ; for it is not accounted in law duress of imprisonment unless the imprisonment, or the duress offered in prison, or out of prison, is tortious and unlawful ; for “executio juris non habet injuriam.”
In the execution of any capias ad satisfaciendum, or fieri facias, the sheriff or other officer having the execution of the writ must first produce and show his authority, and make demand of the amount claimed, before he can seize the body or levy the goods ; and, if any irregularity or illegality occur in the execution of the process, the party guilty of such illegality or irregularity will be liable in damages therefor, and for the injury sustained by the defendant thereby. For, when it is said that the execution of the process of the law does no injury, it means the proper execution of it.
Where a sheriff, having a fi. fa. against the goods of A., levied the goods of B. ; or, having a ca. sa. against C, takes D. ; in both such oases, such illegal execution not being warranted by the law, he is liable in damages to the respective parties for the injury sustained by them thereby. For, whilst the law upholds the proper execution of its process, it will interfere to prevent it's improper execution. So, an arrest on mesne process, under pretence that the defendant was about to leave the country, is an abuse of the process of the law, and renders the plaintiff liable to the defendant for the false imprisonment, and to the court for abuse of its process ; as, where the facts are not truly stated in the affidavit, and the law has been put in motion without reasonable and probable cause, the party making the affidavit, or procuring the arrest, being guilty of falsehood in the affidavit, or of swearing to facts not within his knowledge.
So it is an abuse of the process of the law illegally to detain a man upon a ca. sa. executed upon a dies non, as a Sunday, until he can be taken upon a fresh ca. sa. on the Monday ; or for the sheriff or gaoler having custody of a prisoner for debt to detain him, or interfere to prevent his discharge, after having an authority for such discharge from the plaintiff's attorney.
Knowingly to arrest a person privileged ; as an attorney attending court, or an M.P. attending Parliament ; is an abuse of the process of the court, which in the execution of it works an injury, as that of the attorney to his client, and that of the M.P. to the public ; but it is not such an injury as to form the ground of an action for an illegal arrest.
2 Inst. 482 ; Bract. 1. 2, fol. 16 b ; Britton, 19 ; Co.Litt. 259 ; 2 Roll. R. .301 ; D. 47, 10, 13, s. 1 ; 6 Go. 53 ; Hobart, 266 ; Petrie v. Lamont, 4 So. N. R. 339 ; Magnay v. Burt, 5 Q. B. 381 ; McGregor v. Barrett, 6 C. B. 262 ; Wade v. Simeon, 13 M. & W. 647 ; Ross v. Worman, 5 Exch. 359 ; Parmain v. Hooper, 7 Scott, 663 ; Heywood v. Gollinge, 9 A. & E. 274 ; Grainger v. Hill, 4 Bing. N. C. 212 ; Gibbons v. Alison, 3 C. B. 185 ; Crozer v. Pilling, 4 B. & 0. 26.