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 (i). Nor does it matter

(i) Griffin v. Coleman, note (ƒ) last page.

v. Grayson, 2 Stew. 412; Stovel v. Lawrence, 3 Day, 1; Stoddard v. Bird, Kirby, 65; Burlinghand v. Wylee, 2 Root, 151; Pierson v. Gale, 8 Vt. 509; Gilbert v. Emmons, 42 Ill. 143; Taylor v. Trask, 7 Cow. 249; Snydacker v. Brosse, 51 Ill. 357; Poulk v. Slocum, 3 Blackf. 421; Miller v. Adams, 52 N. Y. 409; Harwood v. Siphers, 70 Me. 464; Gelzenlenchter v. Neimeyer, 64 Miss. 316; 54 Am. Rep. 616; Hackett v. King, 6 Allen, 58; Chapman v. Dyett, 11 Wend. 31; 25 Am. Dec. 598; Vredenburgh v. Hendricks, 17 Barb. 179; Emery v. Hapgood, 7 Gray, 55; Letzler v. Huntington, 24 La. An. 330; Thorpe v. Wray, 68 Ga. 359; Luddington v. Peck, 2 Conn. 700.

A person who by acts approves a wrongful arrest is liable therefor. Webber v. Kenny, 1 A. K. Marsh. (Ky.) 345. See Hollock v. Dominey, 7 Hun, 52; Clifton v. Grayson, 2 Stew. 412. Where the facts have been passed upon by the judge making an order for arrest the plaintiff cannot be held responsible. Finley v. St. Louis Refrigerator Co., 99 Mo. 559; 13 S. W. Rep 87; Dusy v. Helm, 59 Cal. 188.

Nor can one who merely directs the attention of a policeman to another who is thereupon arrested. Veneman v. Jones, 118 Ind. 41; 20 N. E. Rep. 644. But see McCarrahan v. Lavers, 15 R. I. 302; 3 At. Rep. 592; Maliniemi v. Gronlund, 92 Mich. 22; 52 N. W. Rep. 627.

A mere observer where a person is forced to sign a "lie bill" held not liable. Walker v. State, 25 Tex. App. 443; 8 S. W. Rep. 547.

For cases on the liability of corporations for false imprisonment and malicious prosecution, sce ante, p. 68.

False imprisonment and malicious prosecution distinguished. In an action for false imprisonment, the gist of the action is an unlawful detention, while in an action for malicious prosecution more is necessary. In Turpin v. Remy (3 Black. 210), it was said by Stevens J., in delivering the opinion of the court: "An action for a malicious prosecution can only be supported for the malicious prosecution of some legal proceeding, before some judicial officer or tribunal. If the proceedings commenced are extra-judicial, the remedy is trespass, and not an action on the case for malicious prosecution. No proof of malice or want of probable cause is necessary to make out a case for false imprisonment." Coulter v. Lower, 35 Ind. 287; 9 Am. Rep. 735. See Painter v. Ives, 4 Neb. 122; Baird v. Householder, 32 Pa. St. 168; Murphy v. Martin, 58 Wis. 278; Brown v. Chadsey, 39 Barb. 262; Atkins v. Newell, 32 Ark. 607; Bauer v. Clay, 8 Kan. 584; Hewitt v. Newburger, 66 Hun, 230; 20 N. Y. S. Rep. 913; Johnson v. Bouton, 35 Neb. 898; 53 N. W. Rep. 913; Hobbs v. Ray (R. I.), 25 At. Rep. 694.

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whether he acts in his own interest or another's (j). 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. Rather troublesome doubts may arise in particular cases as to the quality of the act complained of, whether in this sense discretionary, or ministerial only. The distinction between a servant and an independent contractor" (k) with regard to the employer's responsibility is in some measure analogous. 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 (of which hereafter) (7); but he cannot be sued for false imprisonment, or in a court which has not jurisdiction over cases of malicious prosecution. "The distinction between false imprisonment and malicious prosecution is well illustrated by the case where, parties being before a magistrate, one makes a charge against another, whereupon the magistrate orders the person charged to be taken into custody and detained until the matter can be investigated. The party making the charge is not liable to an action for false imprisonment, because he does not set a ministerial officer in motion, but a judicial officer. The opinion and the judgment of a judical officer are interposed between the charge and the imprisonment" (m). Where an officer has taken a supposed offender into custody of his own motion, a person who at his request signs the charge-sheet does not thereby make the act his own (n), any more than one who certifies

(j) Baker v. Braham (1773), 2 W. Bl. 866 (attorney suing out and procuring execution of void process).

(k) Pp. 92, 93, above.

(1) See Fitzjohn v. Mackinder (1881), Ex. Ch. 1861, 9 C. B. N. S. 505, 30 L. J. C. P. 257.

(m) Willes J., Austin v. Dowling (1870), L. R. 5 C. P. at p. 540; West v. Smallwood (1838), 3 M. & W. 418; Bigelow L. C. 237;

nor does an action for malicious prose. cution lies where the judicial officer has held on a true statement of the facts that there is reasonable cause: Hope v. Evered (1886), 17 Q. B. D. 338, 55 L. J. M. C. 146; Lea v. Charrington (1889), 23 Q. B. Div. 45, 272, 58 L. J. Q. B. 461.

(n) Grinham v. Willey (1859), 4 H. & N. 496, 28 L. J. Ex. 242.

work done under a contract thereby makes the contractor his servant. But where an officer consents to take a person into custody only upon a charge being distinctly made by the complainant, and the charge-sheet signed by him, there the person signing the charge-sheet must answer for the imprisonment as well as the officer (o).

Again, where a man is given into custody on a mistaken charge, and then brought before a magistrate who remands him, damages can be given against the prosecutor in an action for false imprisonment only for the trespass in arresting, not for the remand, which is the act of the magistrate (p).

Reasonable and probable cause. What is reasonable cause of suspicion to justify arrest may be said, paradoxical as the statement looks, to be neither a question of law nor of fact, at any rate in the common sense of the terms. Not of fact, because it is for the judge and not for the

(0) Austin v. Dowling (1870), L. R. 5 C. P. 534, 39 L. J. C. P. 260. Other illustrations may be found in Addison on Torts, 5th ed. 130, 131. As to the protection of parties issuing an execution in regular course, though the judgment is afterwards set aside on other grounds, see Smith v. Sydney (1870), L. R. 5 Q. B. 203,

39 L. J. Q. B. 144. One case often cited, Flewster v. Royle (1808, Lord Ellenbor. ough), 1 Camp. 187, is of doubtful authority; see Gosden v. Elphick (1849), 4 Ex. 445, 19 L. J. Ex. 9; and Grinham v. Willey, above.

(p) Lock v. Ashton (1848), 12 Q. B. 871, 18 L. J. Q. B. 76.

Reasonable and probable cause. It is a general rule that in an action for false imprisonment, the plaintiff need prove neither malice nor want of probable cause. Boaz v. Tate, 43 Ind. 60; Adkin v. Newell, 32 Ark. 605; Boeger v. Langberg, 97 Mo. 390; 11 S. W. Rep. 223; Rosen v. Stein, 7 N. Y. S. 368. See Clow v. Wright, Brayt. 118; Krebs v. Thomas, 12 Ill. App. 266; Neal v. Hart, 115 Pa. St. 347; 8 At. Rep. 628; Firestone v. Rice, 71 Mich. 377; 38 N. W. Rep. 885; Olmstead v. Doland, 6 N. Y. S. 130; Mitchell v. Malone, 77 Ga, 301.

Evidence that the defendant acted without malice, or want of probable eause, may always be admitted to mitigate exemplary damages, but not to diminish actual damages. Livingston v. Burroughs, 33 Mich. 511; Comer v. Knowles, 17 Kan. 436; Sleight v. Ogle, 4 E. D. Smith, 445; Miller v. Grice, 2 Rich. L. 27; 44 Am. Dec. 271; McDaniel v. Needham, 61 Tex. 269; Bogers v. Wilson, Minor, 407; Hill v. Taylor, 50 Mich. 549; Roth v. Smith, 41 Ill. 314.

jury (q); not of law, because "no definite rule can be laid down for the exercise of the judge's judgment" (r). It is a matter of judicial discretion such as is familiar enough in the classes of cases which are disposed of by a judge sitting alone; but this sort of discretion does not find a natural place in a system which assigns the decision of facts to the jury and the determination of the law to the judge. The anomalous character of the rule has been more than once pointed out and regretted by the highest judicial authority (s). The truth seems to be that the question was formerly held to be one of law and has for some time been tending to become one of fact, but the change has never been formally recognized. The only thing which can be certainly affirmed in general terms about the meaning of “reasonable cause" in this connexion is that on the one hand a belief honestly entertained is not of itself enough (t); on the other hand, a man is not bound to wait until he is in possession of such evidence as would be admissible and sufficient for prosecuting the offence 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 " (u). 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.

Although the judge ought not to leave the whole ques

(q) Hailes v. Marks (1861), 7 H. & N. 56, 30 L. J. Ex. 389.

(r) Lister v. Perryman (1870), L. R. 4 H. L. 521, 535, per Lord Chelmsford. So per Lord Colonsay at p. 540.

(8) Lord Campbell in Broughton v. Jackson (1852), 18 Q. B. 378, 383, 21 L. J. Q. B. 266; Lord Hatherley, Lord Westbury, and Lord Colonsay (all familiar with procedure in which there was no jury at all) in Lister v. Perryman, L. R4 H. L. 531, 538, 539.

(t) Broughton v. Jackson (1852), 18 Q. B. 378, 21 L. J. Q. B. 266: the defendant must show "facts which would create a reasonable suspicion in the mind of a reasonable man," per Lord Campbell C. J.

(u) Bramwell B., Perryman v. Lister (1868), L. R. 3 Ex. at p. 202, approved by Lord Hatherley, S. C. nom. Lister v. Perryman, L. R. 4 H. L. at p. 533.

tion of reasonable cause to the jury, there seems to be no objection to his asking the jury, as separate questions, whether the defendant acted on an honest belief, and whether he used reasonable care to inform himself of the facts (x).

III.-Injuries in Family Relations.

Protection of personal relations. Next to the sanctity of the person comes that of the personal relations constituting the family. Depriving a husband of the society of his wife, a parent of the companionship and confidence of his children, is not less a personal injury, though a less tangible one, than beating or imprisonment. The same may to some extent be said of the relation of master and servant, which in modern law is created by contract, but is still regarded for some purposes as belonging to the permanent organism of the family, and having the nature of status. It seems natural enough that an action should lie at the suit of the head of a household for enticing away a person who is under his lawful authority, be it wife, child or servant; there may be difficulty in fixing the boundary where the sphere of domestic relations ends and that of pure contract begins, but that is a difficulty of degree. That the same rule should extend to any wrong done to a wife, child, or servant, and followed as a proximate consequence by loss of their society or service, is equally to be expected. Then, if seduction in its ordinary sense of physical and moral corruption is part of the wrong-doer's conduct, it is quite in accordance with principles admitted in other parts of the law that this should be a recognized ground for awarding exemplary damages. It is equally plain that on general principle a daughter or servant can herself have no civil remedy against the seducer, though the parent or master may; no civil remedy, we say, for other remedies

(x) H. Stephen on Malicious Prosecution, ch.