the said justice, (g) and procured the said justice to remand the plaintiff to prison, and to be afterwards again conveyed before the said justice, when the defendant caused the said justice to commit the plaintiff for trial and to prison. And afterwards the defendant caused a bill of indictment (h) to be preferred against the plaintiff at the central criminal court, Old Bailey [as case may be], before the grand jury, which was returned by the said grand jury not found; (i) and the said prosecution was so ended, and the plaintiff was discharged from custody, whereby the plaintiff has been injured in his credit and reputation, and has suffered in mind and body, and has been prevented from carrying on his business, and has incurred expenses in defending himself and obtaining his release from custody.

OTHER FORMS FOR CRIMINAL PROSECUTION.

2. For a Malicious Prosecution for Perjury.

Delisser v. Towne, 1 Q. B. 333; Ellis v. Abrahams, 8 Q. B. 709; Fitzjohn v. Mackinder, 8 C. B. N. S. 78; 29 L. J. C. P. 167.

3. For maliciously procuring Another to make a False Charge before a Magistrate.

Delegal v. Highley, 3 Bing. N. C. 951; 5 Scott, 154.

4. For a Malicious Charge before a Justice, who discharged Plaintiff. Biggs v. Clay, 3 N. & M. 464.

5. For maliciously procuring, &c. a Search Warrant. Hensworth v. Fowkes, 4 B. & Ad. 449; Wyatt v. White, 5 H. & N. 371. 6. For maliciously procuring a Conviction before a Magistrate. Mellor v. Baddeley, 6 C. & P. 374; 2 Cr. & M. 67.

7. For maliciously exhibiting Articles of the Peace, &c. Venafra v. Johnson, 10 Bing. 307; Steward v. Gromett, 29 L. J. C. P. 120; 7 C. B. N. S. 191.

8. For a Malicious Prosecution before a Court Martial. (k)
Sutton v. Johnstone, 1 T. R. 493, 784.

9. By a Tenant against his Landlord, for maliciously charging him before a Magistrate under the Police Act with having (Three Months before) wilfully damaged his Premises.

Dowell v. Beningfield, 1 Car. & M. 9.

(g) If the plaintiff was then discharged, say "and the justice having heard and considered the evidence before him touching the said supposed offence, adjudged and decided that the plaintiff was not guilty thereof, and discharged the plaintiff, fully acquitted of the same; and the defendant hath not further prosecuted the same, but the same is fully ended and determined."

(h) If plaintiff were indicted before the petit jury, and acquitted, see form, Dubois v. Keats, 11 Ad. & E. 329.

(i) See Byne v. Moore, 5 Taunt. 187; [Stanliffe v. Palmeter, 18 Ind. 321.]

(k) This was held not to be a good cause of action.

MANDAMUS, WRIT OF.

OBS. By the common law procedure act, 1854, s. 68, "The plaintiff in any action in any of the superior courts, except replevin and ejectment, may indorse upon the writ and copy to be served a notice that the plaintiff intends to claim a writ of mandamus, and the plaintiff may thereupon claim in the declaration, either together with any other demand which may now be enforced in such action, or separately, a writ of mandamus commanding the defendant to fulfil any duty in the fulfilment of which the plaintiff is personally interested;" s. 69," The declaration in such action shall set forth sufficient grounds upon which the claim is founded, and shall set forth that the plaintiff is personally interested therein, and that he sustains or may sustain damage by the non-performance of such duty, and that performance thereof has been demanded by him, and refused or neglected; s. 70, 66 The pleadings and other proceedings in any action in which a writ of mandamus is claimed shall be the same in all respects, as nearly as may be, and costs shall be recoverable by either party, as in an ordinary action for the recovery of damages; s. 71, "In case judgment shall be given to the plaintiff that a mandamus do issue, it shall be lawful for the court in which such judgment is given, if it shall see fit, besides issuing execution in the ordinary way for the costs and damages, also to issue a peremptory writ of mandamus to the defendant, commanding him forthwith to perform the duty to be enforced;" s. 72, "The writ need not recite the declaration or other proceedings, or the matter therein stated, but shall simply command the performance of the duty, and in other respects shall be in the form of an ordinary writ of execution, except that it shall be directed to the party and not to the sheriff, and may be issued in term or vacation, and returnable forthwith, and no return thereto, except that of compliance, shall be allowed, but time to return it may, upon sufficient grounds, be allowed by the court or a judge, either with or without terms; s. 73, " The writ of mandamus so issued as aforesaid shall have the same force and effect as a peremptory writ of mandamus issued out of the court of queen's bench, and, in case of disobedience, may be enforced by attach

ment."

And by the common law procedure act, 1860, 23 & 24 Vict. c. 126, s. 32, "In all cases in which a writ of mandamus is issued under the provisions of the common law procedure act, 1854, such writ shall, unless otherwise ordered by the court or a judge, in addition to the matter directed to be inserted therein, command the defendant to pay to the plaintiff the costs of preparing, issuing, and serving such writ; and payment of such costs may be enforced in the same manner as costs payable under a rule of court are now by law enforceable." Sect. 68 only facilitates the mode of proceeding in cases in which, before the passing of this act, a writ of mandamus would have lain. Therefore, it does not extend to a duty arising out of a mere personal contract. Benson v. Paul, 6 El. & Bl. 273; 25 L. J. Q. B. 274. See, also, Norris v. The Irish Land Company, 8 El. & Bl. 512; 27 L. J. Q. B. 115, where see a form. Nor will it lie where there is any other remedy. Bush v. Beavan, 32 L. J. Ex. 54, where see a form. See, also, Burland v. Local Board of Kingston, 32 L. J. Q. B. 17; Fotherby v. Metropolitan Ry. Co. 36 L. J. C. P. 88. See, also, Ward v. South Eastern Ry. Co. 29 L. J. Q. B. 177. When a mandamus will be granted against a local board, R. v. Darlington, 35 L. J. Q. B. 45; Worthington v. Hulton, 35 L. J. Q. B. 61; [L. R. 1 Q. B. 63. Mandamus to railway company, to issue warrant to sheriff under lands clauses act. Fotherby v. The Metropolitan Ry. Co. L. R. 2 C. P. 188.] A declaration for a mandamus to levy a rate to pay a debt is good, though it does not state the amount of the debt. Ward v. Lowndes, 29 L. J. Q. B. 40; 28 L. J. Q. B. 265, where see a form.

The commencement of the declaration is as usual. The body of the declaration must set out the grounds upon which the writ is demanded, and that the plaintiff is interested in the performance of the duty, and will be damaged by the non-performance, and that a performance has been demanded, and that there has been a refusal or neglect, and alleged performance of conditions precedent, and conclude: "and the plaintiff claims a writ of mandamus

OBS. to command the defendant," setting out what is required by the mandamus shortly and clearly. If necessary, a count may be added for a claim, besides the writ of mandamus, in the usual form, the claim at the end being only in respect of the last count. See a form, Copeland v. North Eastern Ry. Co. 6

El. & Bl. 277.

MARKETS.

OBS. As to what is a market, see Com. Dig. Market. The owners of a market may bring trespass for an injury to their freehold. Mayor of Northampton v. Ward, 1 Wils. 107. See the markets and fairs clauses act, 10 Vict. c. 14. See forms of declaration for disturbance of a market by opening a new one, 2 Chit. on Pl. 7th ed. 626. The lord of an ancient market may by law have a right to prevent other persons from selling goods in their private houses situate within the limits of his franchise. Mosley v. Walker, 7 B. & C. 40, where see a form. See, also, Mayor of Devises v. Clark, 3 Ad. & E. 506; Bridgland v. Shapter, 5 M. & W. 376. But the grantee of a newly created market cannot, by virtue of such grant merely, maintain an action for disturbance against a person selling marketable articles in his own shop, within the franchise. Mayor of Macclesfield v. Chapman, 12 M. & W. 18. See Mayor of Macclesfield v. Pedley, 4 B. & Ad. 397. As to where a market may be held. see De Rutzen v. Lloyd, 5 Ad. & E. 456. Form, Bridgland v. Shapter, 5 M. & W. 375; 8 L. J. Ex. 246. See, also, Thompson v. Gibson, 7 M. & W. 456; 10 L. J. Ex. 330.

OBS.

The venue is local.

tice.

MASTER AND SERVANT. See "Negligence," post.

1. For seducing Plaintiff's Daughter and Servant.

As to the law upon this subject, see, generally, Bac. Ab. Master and Servant, O.; 2 Stark. Ev. 3d ed. 288, tit. Seduction. The new county courts have no jurisdiction. 9 & 10 Vict. c. 95, s. 58. An action of this kind, founded on the supposed relationship of master and servant, is the only remedy provided by law for a parent for the seduction of his child. There must be some proof of the daughter's service of the slightest kind, or of her liabil ity to serve, or at least that she was living with her father as part of his family, and liable to his control and command. Maunder v. Venn, M. & M. 324, per Littledale J.; [Terry v. Hutchinson, L. R. 3 Q. B. 599;] Manly e. Field, 7 C. B. N. S. 96; 29 L. J. C. P. 79; [Robinson v. Burton, 5 Harring 335; Ellington v. Ellington, 47 Miss. 329; Sutton v. Huffman, 3 Vroom, 58; Patterson v. Thompson, 24 Ark. 55; 1 Chitty Pl. 69, note (y):] Harris e. Butler, 2 M. & W. 539, where see a form for seducing defendant's own apprenA contract to serve, or payment of wages, need not be shown; and the circumstance of the daughter being of age, or being at the time absent on a visit, is immaterial, if she intended to return home. Ib. ; [Greenwood v. Greenwood, 28 Md. 370; Griffiths v. Teetgen, 15 C. B. 344; Manly v. Field, 7 C. B. N. S. 96. In Sutton v. Huffman, 3 Vroom, 58, the daughter was over twenty-one. Lipe v. Eisenlord, 32 N. Y. 229.] But where the daughter was in the service of another person at the time of her seduction; Dean v. Peel. 5 East, 45; or was in the defendant's service; Harris v. Butler, supra; unless he hired her for the purpose of seduction; Speight v. Oliviera, 2 Stark. R. 493; [Dain v. Wickoff, 18 N. Y. 46; S. C. 3 Selden, 191;] no action lies for seduction, though the daughter returns home and occasions expense, &c. See Davis v. Williams, 10 Q. B. 725; 16 L. J. Q. B. 369; Eager v. Grimwood, 1 Ex. 61; 16 L. J. Ex. 236; [Terry v. Hutchinson, supra ;] Thompson v. Ross, 5 H. & N. 16; 29 L. J. Ex. 1; [Evans v. Walton, L. R. 2 C. P. 615. Especially where the daughter is of age and is absent from home under a contract made by her for her own benefit; Lee v. Hodges, 13 Grattan, 726. But see 1 Chitty Pl. 69, note (y);] and although she had the intention of returning to the father's service after she had quitted the defendant's. Blay

OBS. mire v. Hayley, 6 M. & W. 55; [and though, during any leisure time, she had been in the habit, with the permission of her master, of assisting in the work by which her parent earned a livelihood. Thompson v. Ross, 5 H. & N. 16. See Hedges v. Tagg, 41 L. J. N. S. Ex. 169; S. C. L. R. 7 Ex. 283. But according to numerous decisions of the courts of New York, Pennsylvania, and some other of the American states, the relation of master and servant between a father and his daughter in such cases is sufficiently proved by evidence that the daughter was a minor and that the father had a right to her services. Those decisions also lay down the rule that the effect of such evidence is not impaired by the fact, that at the time of the injury, she was not living in her father's family, but was in the actual employment of another person; and they hold that such a fact would not justify the inference that the father had abandoned any of his paternal rights, unless the daughter has been actually bound out as an apprentice. In other words, the relation results constructively from his right to reclaim the custody of her person, from his responsibility for her education, and from his obligation to support her if she should become sick or disabled while so absent from home. Martin v. Payne,

9 John. 387; Nickleson v. Stryker, 10 John. 115; Clark v. Fitch, 2 Wend. 459; Bartley v. Richtmyer, 4 Comst. 38; Sargent v. ——, 5 Cowen, 106; Ingersoll. Jones, 5 Barb. 661; Mulvehall v. Millward, 1 Kernan, 343; Hornketh v. Barr, 8 Serg. & R. 36; Van Horn v. Freeman, 1 Halst. 322; South v. Denniston, 2 Watts, 474; Boyd r. Byrd, 8 Blackf. 114; Bolton v. Miller, 6 Ind. 262; Roberts v. Connelly, 14 Ala. 241; Parker v. Meek, 3 Sneed, 34; Mercer v. Walmsley, 5 Harr. & J. 27; 1 Chitty Pl. 69, note (y). In Kennedy v. Shea, 110 Mass. 147, which was an action by a father for the seduction of his daughter, it appeared that she was employed by a third person, but that the plaintiff required her to spend a part of every Sunday at home, and that while there she did work for him. It was held that the relation of master and servant existed, so that he could maintain the action. See Bist v. Fuax, 4 B. & S. 409.] Expense only will not suffice, the loss of service is, in law, the gist of this action. Boyle v. Brandon, 13 M. & W. 738; Grinnell v. Wells, 7 M. & G. 1033; 2 D. & L. 610. A master, though no relation, Fores v. Wilson, Peake R. 55, or an aunt, or person who has adopted the party seduced, may be the plaintiff. See Edmonson v. Machell, 2 T. R. 4; Irwin v. Dearman, 11 East, 23; [Ball v. Bruce, 21 Ill. 161. So may the widowed mother: Gray v. Darland, 51 N. Y. 424; Damon v. Moore, 5 Lansing, 454; Sargent v. 5 Cowen, 106; Parker v. Meek, 3 Sneed, 34; Felkner v. Scarlet, 29 Ind. 194. So may a step-father. Maguinay v. Saudek, 5 Sneed, 146; Bracy v. Kibbe, 31 Barb. 273. In Iowa, by statute, the person seduced may prosecute as plaintiff, an action for her own seduction. So the father, and in certain cases the mother, may prosecute for the seduction of the daughter, and the guardian may sue for the seduction of his ward; though the daughter or ward be not living with, nor in the service of the plaintiff at the time of the seduction, or afterwards, and there be no loss of service; but when the action is brought by the guardian, the damages recovered shall inure to the benefit of the ward. Laws of Iowa (1860), p. 492, §§ 2790, 2791. It is not necessary that the defendant should have used any artifices or false promises to accomplish his purpose if the seduction has been accomplished, whether by deception or solicitation, the action may be maintained. Reed v. Williams, 5 Sneed, 580. So although it was accomplished by force, and against the consent of the seduced. Damon v. Moore, 5 Lansing, 454; Kennedy . Shea, 110 Mass. 147; Furman v. Applegate, 3 Zabr, 28; but see Hogan v. Cregan, 6 Rob. (N. Y.) 138.] Remoteness of damage. Boyle v. Brandon, supra. [As to damages, see further, Berry v. De Costa, L. R. 1 C. P. 331; Terry v. Hutchinson, L. R. 3 Q. B. 599.]

1. For loss of Services caused by the Seduction of the Plaintiff's Ser

vant.

That the defendant debauched and carnally knew A. B., then being the [daughter and] servant (1) of the plaintiff, whereby she became pregnant and (1) This allegation of service is sufficient. Martinez v. Gerber, 3 M. & G. 89.

was delivered of a child, (m) and the plaintiff thereby lost her services, and incurred expense in nursing and in obtaining medical assistance for her. (n)] 2. For enticing away the Plaintiff's Workmen, whereby he was unable to complete an Agreement, &c. (0)

For that E. F. was and is the servant of the plaintiff in his trade of ; yet the defendant, well knowing (p) the same, wrongfully enticed and procured the said E. F. unlawfully, against the will of the plaintiff, to leave his said service, whereby the plaintiff has been deprived of the service of the said E. F. [state special damage, if any, see last edition of this work, p. 591, Form 2.]

3. For enticing away the Plaintiff's Servant.

Evans v. Walton, 36 L. J. C. P. 307 (q); [L. R. 2 C. P. 615; Cox v. Muncey, 6 C. B. N. S. 375.]

[3a. Count for receiving and harboring the Plaintiff's Servant. (r) That G. H. was and still is the servant of the plaintiff in his business of a and unlawfully and without the consent and against the will of the plaintiff departed from the service of the plaintiff; and the defendant, well knowing the premises, wrongfully and without the consent and against the will of the plaintiff, received, harbored, and detained the said G. H., and refused to deliver the said G. H. to the plaintiff, although requested by the plaintiff to do so; whereby the plaintiff lost the service of the said G. H. in his said business.]

4. By the Master for an Injury done to his Servant. (8) By careless driving. Martinez v. Gerber, 3 M. & G. 89; Williams v. Holland, 10 Bing. 112; Hall v. Hollander, 4 B. & C. 660.

(m) [Richardson v. Fouts, 11 Ind. 466; Whitney . Elmer, 60 Barb. 250. But there are many cases in which it has been held that it is not necessary to the support of this action that the daughter or servant should have been delivered of a child or become pregnant. Abrahams . Kidney, 104 Mass. 222; Vanhorn v. Freeman, 1 Halst. 322; Boyce v. New York, 55 N. Y. 644, 646.]

(n) [Other like forms, Davies v. Williams, 10 Q. B. 725; Eager v. Grimwood, 1 Ex. 61; Grinnell v. Wells, 7 M. & G. 1033; Griffiths v. Teetgen, 15 C. B. 344; Thompson v. Ross, 5 H. & N. 16.]

(0) A like form, Hartley v. Cummings, 5 C. B. 247. See common forms for enticing away and harboring apprentices, 2 Chit. Pl. 7th ed. 485; and as to the action in general, Bac. Abr. Master and Servant, O.; 3 Bl. Com. 142. See Lumley v. Gye, 2 El. & Bl. 216; 23 L. J. Q. B. 112. In the case of an apprentice, there must be a valid contract of apprenticeship. Cox v. Muncey, 6 C. B. N. S. 374, where see a form.

(p) The scienter is a necessary averment; 8 Bl. Com. 142; Wiusmore v. Greenbank, Willes, 582; but the means of enticement

used need not be particularized. Willes, 577.

(9) [S. C. L. R. 2 C. P. 615; Stowe r. Heywood, 7 Allen, 118.] Service de facto is sufficient, and proof of contract of service is not necessary. Evans v. Walton, 36 L. J. C. P. 307; [Š. C. L. R. 2 C. P. 615.]

(r) [See Blake . Lanyon, 6 T. R. 221; Forbes v. Cochrane, 2 B. & C. 448; Sykes v. Dixon, 9 Ad. & E. 693.]

(s) [It has recently been held after full discussion in Alton v. The Midland Ry. Co. 19 C. B. N. S. 213, that an action will not lie against a railway company, as carriers of passengers for hire, at the suit of a master, for a personal injury sustained through their negligence, by his servant, whereby the mas ter lost the benefit of the services of the ser vant-the contract out of which arose the duty to carry safely being a contract be tween the company and the servant. This decision was followed in a late case in Pennsylvania. Fairmount & Arch St. Passenger Ry. Co. v. Stutler, 54 Penn. St. 375. It has very recently been held otherwise in Massachusetts, in Ames r. The Union Ry. Co. 117 Mass. 541.