REGULAR AND IRREGULAR PROCES
(bouvier) | REGULAR AND IRREGULAR PROCESS. Regular process is that which has been
lawfully issued by a court or magistrate, having competent jurisdiction.
Irregular process is that which has been illegally issued.
2. When the process is regular, and the defendant has been damnified,
as in the case of a malicious arrest, his remedy is by an action on the
case, and not trespass: when it is irregular, the remedy is by action of
trespass.
3. If the process be wholly illegal or misapplied as to the person
intended to be arrested, without regard to any question of fact, or whether
innocent or guilty, or the existence of any debt, then the party imprisoned
may legally resist the arrest and imprisonment, and may escape, be rescued,
or even break prison; but if the process and imprisonment were in form
legal, each of these acts would be punishable, however innocent the
defendant might be, for he ought to submit to legal process, and obtain his
release by due course of law. 1 Chit. Pr. 637; 5 East, R. 304, 308; S. C. 1
Smitt's Rep. 555; 6 T. R. 234; Foster, C. L. 312; 2 Wils. 47; 1 East, P. C.
310 Hawk. B. 2, c. 19, s. 1, 2.
4. When a party has been arrested on process which has afterwards been
set aside for irregularity, he may bring an action of trespass and recover
damages as well against the attorney who issued it, as the party, though
such process will justify the officer who executed it. 8 Adolph. & Ell. 449;
S. C. 35 E. C. L. R. 433; 15 East, R. 615, note c; 1 Stra. 509; 2 W. Bl.
Rep., 845; 2 Conn. R. 700; 9 Conn. 141; 11 Mass. 500; 6 Greenl. 421; 3 Gill
& John. 377; 1 Bailey, R. 441; 2 Litt. 234; 3 S. & R. 139 12 John. 257 3
Wils. 376; and vide Malicious Prosecution.
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