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imprisonment in particular, there are divers and somewhat minute distinctions between the powers of a peace-officer and those of a private citizen; of which the chief is that an officer may without a warrant arrest on reasonable suspicion of felony, even though a felony has not in fact been committed, whereas a private person so arresting, or causing to be arrested, an alleged offender, must show not only that he had reasonable grounds of suspicion, but that a felony had actually been committed.

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Every one is answerable for specifically directing the arrest or imprisonment of another, as for any other act that he specifically commands or ratifies; and a superior officer who finds a person taken into custody by a constable under his orders, and then continues the custody, is liable to an action if the original arrest was unlawful. Nor does it matter whether he acts in his own interest or another's. But one is not answerable for acts done upon his information or suggestion by an officer of the law, if they are done not as merely ministerial acts, but in the exercise of the officer's proper authority or discretion. A party who sets the law in motion without making its act his own is not necessarily free from liability. He may be liable for malicious prosecution; but he cannot be sued for false imprisonment, or in a court which has not jurisdiction over cases of malicious prosecution.

What is reasonable cause of suspicion to justify arrest is -paradoxical as the statement may look-neither a question of law nor of fact. Not of fact, because it is for the judge and not for the jury; not of law, because "no definite rule can be laid down for the exercise of the judge's judgment." "It is matter of judicial discretion, such as is familiar enough in the classes of cases which are disposed of by a judge sitting alone. The only thing which can be certainly affirmed in general terms about the meaning of "reasonable cause " in this connection is that on the one hand a belief honestly entertained is not of itself enough; on the other hand, a man is not bound to wait until he is in

8. Where not changed by statute this is the general rule of law. Bur

dick on Torts (3d Ed.), 280; Wash. Cr. Law (2d Ed.), 176.

possession of such evidence as would be admissible and sufficient for prosecuting the offense to conviction, or even of the best evidence which he might obtain by further inquiry. "It does not follow that because it would be very reasonable to make further inquiry, it is not reasonable to act without doing so." It is obvious, also, that the existence or non-existence of reasonable cause must be judged, not by the event, but by the party's means of knowledge at the time."

3. Injuries in Family Relations.

The development of the law upon this subject has been strangely halting and one-sided. Sarting from the particular case of a hired servant, the authorities have dealt with other relations, not by openly treating them as analogous in principle, but by importing into them the fiction of actual service; with the result that in the class of cases most prominent in modern practice, namely, actions brought by a parent (or person in loco parentis) for the seduction of a daughter, the test of the plaintiff's right has come to be, not whether he has been injured as the head of a family, but whether he can make out a constructive" loss of service."' 2

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The common law provided a remedy by writ of trespass for the actual taking away of a wife, servant, or heir, and perhaps younger child also. An action of trespass also lay for wrongs done to the plaintiff's wife or servant (not to a child as such), whereby he lost the society of the former or the services of the latter. The language of pleading was per quod consortium, or servitium, amisit. Such a cause of action was quite distinct from that which the husband might acquire in right of the wife, or the servant in his own right. The trespass is one, but the remedies are "diversis respectibus." "If my servant is beat, the master shall not have an action for this battery, unless the battery is so great that by reason thereof he loses the service of his servant, but the servant himself for every small battery shall have

9. See Wash. Cr. Law (2d Ed.), 177; Burdick on Torts (3d Ed.), 280. Consult the unabridged text of Pollock on Torts, Webb's Edition, 267.

1. In the place of the parent.
2. Burdick on Torts (3d Ed.), 319.
3. Whereby he lost the service.

an action; and the reason of this difference is that the master has not any damage by the personal beating of his servant, but by reason of a per quod, namely, per quod servitium, &c. amisit; so that the original act is not the cause of his action, but the consequent upon it, namely, the loss of his service is the cause of his action; for be the battery greater or less, if the master doth not lose the service of his servant, he shall not have an action." The same rule applies to the beating of mal-treatment of a man's wife, provided it be "very enormous, so that thereby the husband is deprived for any time of the company and assistance of his wife."4

Against an adulterer the husband had an action at common law, commonly known as an action of criminal conversation. In form it was generally trespass vi et armis, on the theory that "a wife is not, as regards her husband, a free agent or separate person," and therefore her consent was immaterial, and the husband might sue the adulterer as he might have sued any mere trespasser who beat, imprisoned, or carried away his wife against her will."

An action also lay for enticing away a servant (that is, procuring him or her to depart voluntarily from the master's service), and also for knowingly harboring a servant during breach of service; whether by the common law, or only after and by virtue of the Statute of Laborers, is doubtful.

Much later the experiment was tried with success of a husband bringing a like action "against such as persuade and entice the wife to live separate from him without a sufficient cause."

Still later the action for enticing away a servant per quod servitium amisit, was turned to the purpose for which alone it may now be said to survive, that of punishing seducers; for the latitude allowed in estimating damages makes the proceeding in substance almost a penal one.

4. Such is still the ground of this action. Burdick on Torts (3d Ed.), 310, 319 et seq.

5. See Cooley on Torts (Students'

Ed.), ch. 7; Burdick on Torts (3d
Ed.), 311.

6. Fitzherbert, Natura Brevium, 91, I; Burdick on Torts (3d Ed.), 322. 7. 23 Edw. 3 (A. D. 1349).

In this kind of action it is not necessary to prove the existence of a binding contract of service between the plaintiff and the person seduced or enticed away. The presence or absence of seduction in the common sense (whether the defendant" debauched the plaintiff's daughter," in the forensic phrase) makes no difference in this respect; it is not a necessary part of the cause of action, but only a circumstance of aggravation. Whether that element be present or absent, proof of a de facto relation of service is enough; and any fraud whereby the servant is induced to absent himself or herself affords a ground of action, "when once the relation of master and servant at the time of the acts complained of is established."

And a de facto service is not the less recognized because a third party may have a paramount claim; a married woman living apart from her husband in her father's house may be her father's servant, even though that relation might be determined at the will of the husband. Some evidence of such a relation there must be, but very little will serve. "The right to the service is sufficient."

Partial attendance in the parent's house is enough to constitute service, as where a daughter employed elsewhere in the daytime is, without consulting her employer, free to assist, and does assist, in the household when she comes home in the evening.

Some loss of service, or possibility of service, must be shown as consequent on the seduction;s but when that condition is once satisfied, the damages that may be given are by no means limited to an amount commensurate with the actual loss of service proved or inferred. The awarding of exemplary damages is indeed rather encouraged than otherwise. It is immaterial whether the plaintiff be a parent or kinsman, or a stranger in blood who has adopted the person seduced.

On the same principle or fiction of law a parent can sue in his own name for any injury done to a child living under

8. Rist v. Faux. Ex. Ch. 4 B. & S. 409; Cooley on Torts (Students' Ed.), 261, 262. In Kan-as the fiction of

service has been disregarded.
thony v. Norton, 60 Kan. 341.

An

his care and control, provided the child is old enough to be capable of rendering service; otherwise not, for "the gist of the action depends upon the capacity of the child to perform acts of service."

The capricious working of the action for seduction in modern practice has often been the subject of censure. Thus, Serjeant Manning wrote forty years ago; "the quasi fiction of servitium amisit affords protection to the rich man whose daughter occasionally makes his tea, but leaves without redress the poor man whose child is sent unprotected to earn her bread amongst strangers.” 1

CHAPTER VII.

DEFAMATION.

The wrong of defamation may be committed either by way of speech, or by way of writing or its equivalent. For this purpose it may be taken that significant gestures (as the finger language of the deaf and dumb) are in the same class with audible words; 1 and there is no doubt that printing, engraving, drawing, and every other use of permanent visible symbols to convey distinct ideas, are in the same case with writing.2 The term slander is appropriated to the former kind of utterances, libel to the latter. Using the terms" written" and "spoken " in an extended sense, to include the analogous cases just mentioned, we may say that slander is a spoken and libel is a written defamation. The law has made a great difference between the two. Libel is an offence as well as a wrong, but slander is a civil wrong only. Written utterances are, in the absence of special ground of justification or excuse, wrongful as against any person whom they tend to bring into hatred, contempt, or ridicule. Spoken words are actionable only when special damage can be proved to have been their proximate con

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