Page:Federal Reporter, 1st Series, Volume 6.djvu/681

 BABNES V. VIALIj. 669 �It will be proper to notice one or two classes of cases, some- what analogous to this, in which trespass did not lie. A per- son may have a privilege from arrest for debt, and, if he is arrested, his only action will be case for a -wanton or mali- cious arrest. The reason for this appears to be that a great variety of persons have this privilege under varions circum- stances. A writ which requires the arrest of such a person is valid, because neither the plaintifF nor the officer is bound to know the facts upon which the privilege depends; as, for instance, whether a trial is going on to which the defendant bas been regularly summoned. In the leading case of Came- ron V. lAghtfoot, 2 W. Bl. 1190, the privilege of a witness is explained to be that of the court rather than his own, and that the court bas a discretion to require Mm to give bail, notwithstanding the privilege. The precedent of that case bas been followed in ail tbose in which a privilege bas been violated. In the present case the plaintiff. had not a mere personal privilege. The creditor, having detained him as long as the statute permitted, had exhausted his right of impris- onment ; he was, theref ore, not disregarding a personal priv- ilege, 80 much as assuming to himself a right which he did not possesB. When the person of a defendant bas been dis- charged, through the regular operation of an insolvent l^w, the courts of New York hold that the plaintiff who causes him to be arrested is liable in trespass. �In England this form of remedy was refused in a similar case, — in Ewart v. Jones, 14 M. & W. 774, — partly because the statute had given a remedy by summary application to the court, and partly because of the hardship of holding a creditor in trespass — that is, without proof of malice, — for an act which might be entirely innocent, as he might not have had notice of the proceedings in insolvenoy. Neither of these considerations applies to this case. In the ordinary case of one who bas been discharged under a bankrupt law an addi- tional reason may be given : that, until some recent statutes, the discharge itself might be collaterally impeached, and therefore a creditor wishing to contest the discharge had his ��� �