by the writ, for it was he who put it in motion, and he was then a wrong doer.29 And although a constable would be protected by an alias execution issued by a justice of the peace after the debt had been paid under the first, the justice as well as the plaintiff would be liable, although the plaintiff had represented that the first execution was lost.30 When the process is wholly void, for want of jurisdiction, none of the parties who issued it, or put it in motion, can be protected under it. A tribunal proceeding under special or limited powers decides at its peril; and if the court had not jurisdiction, the judges, the attorney, and the party will be liable to an action for false imprisonment when the defendant has been arrested under its process.31 Even a ministerial officer will be liable if it appear on the face of the process that the court had no jurisdiction. 32 In those cases where the process has been misapplied, as to the person intended to be imprisoned; as, for example, where process is issued against A B, and under it CD is arrested, the latter may bring suit not only against the plaintiff who authorized the arrest, but also against the ministerial officer, for a command in the writ to arrest A B cannot justify the arrest of C D. 2278. The most efficacious and prompt remedy for false imprisonment is the writ of habeas corpus. This is the best calculated to remove the injury and to obtain the liberty of the party aggrieved. This celebrated writ, which has been the boast of English lawyers, is an imitation of the interdict of the Roman law, de homine libero exhibendo. When a freeman was restrained of his liberty by another, contrary to good faith, the prætor ordered by his interdict that such person should be brought before him, that he might be liberated." 2279. A person who has been unlawfully imprisoned has also remedy by action against all who have been active in procuring his imprisonment, unless they are justified by the process of a superior officer. 35 When the process is wholly void, or it has been misapplied by arresting the wrong person, the party injured may maintain trespass; when the imprisonment is under color of regular criminal or civil process the remedy is by an action on the case; provided that in this latter case there was no probable cause for instituting the proceedings, and, in general, the acquitted party will be required to prove that there was no such probable cause. 29 McGuinty v. Herrick, 5 Wend. N. Y. 240. A citizen who assists an officer at his request to make an arrest is not liable, whether the arrest is proper or not. McMahan v. Green, 34 Vt. 69. 30 Lewis v. Palmer, 6 Wend. N. Y. 367. 81 Cable v. Cooper, 15 Johns. N. Y. 152. 92 Smith v. Shaw, 12 Johns. N. Y. 257; Savacool v. Boughton, 5 Wend. N. Y. 170. 33 Bacon, Abr. Trespass, D; 2 Rolle, Abr. 552 (O), pl. 5. 34 Dig. 43, 29, 1. The form of the interdict was quem liberum dolo malo retines, exhibeas:" I order that you bring before me the free person whom you retain in bad faith. See before, 211. 35 Stanton v. Seymour, 5 McLean, C. C. 267; Price v. Graham, 3 Jones, No. C. 545. 614 CHAPTER IV. INJURIES TO RELATIVE RIGHTS. 2280. Injuries to the relative rights. 2283. Criminal conversation. 2284. Injury to the wife's person. 2285. Injury to the rights of the wife. 2288-2293. Injuries to the rights of parent and child. 2290. Seduction of children. 2292. Abduction of children. 2293. Injuries to the rights of children. 2294. Injuries to the rights of guardian and ward. 2295-2297. Injuries to the rights of master and apprentice. 2296. To the rights of the master. 2297. To the rights of the apprentice. 2298-2300. Injuries to the rights of employer and employed. 2299. To the rights of the employer. 2300. To the rights of the employed. 2280. The injuries to the relative rights of persons are those which affect husband and wife, parent and child, guardian and ward, master and apprentice, and employer and employed. 2281. There must in general be, or presumed to be, a legal marriage subsisting between the parties in order to entitle them to those relative rights which subsist between husband and wife, the violation of which is an injury. 2282. The injuries which violate a man's rights as husband are those which affect him principally, committed upon the wife; and those which affect the wife principally, and are consequentially tortious toward him. 2283. He has an interest in her fidelity; criminal conversation or adultery with her, renders her for the future more or less unfit to discharge her relative duties, and so the interests of her husband are deteriorated by their non-performance. The husband may, however, at his pleasure reinstate the adultress in her former relation; and as a second adulterer, by still further debasing her moral principles, renders her less capable to fulfil her duties, it follows that his offence is injurious to the husband as well as the first, different from it, in the inconvenience it occasions, only in degree. So if the illicit intercourse has been carried on between the wife and several persons during the same period, the husband, having received an injury from each, is entitled to a compensation from each.' Even when the woman is a common prostitute, if her course of life is not suffered willingly by her husband, he may have an action for adultery with her; but any connivance on his part will deprive him of a right of action; as, in 1 Gregson v. McTaggart, 1 Campb. 415. 2 that case, he would receive no injury, volenti non fit injuria; and when his conduct has been censurable in not taking proper care of the morals of his wife, he will be entitled only to diminished damages. 2284. An injury committed by a third person on the wife's person is an injury to the husband. For such injury the husband and wife must join in an action for the recovery of the damages; but when the injury is such that the husband receives a separate damage or loss, as if, in consequence of a battery, he has been deprived of her society or been put to expense, he may bring a separate action in his own name;3 and for slander of his wife, when the words are not actionable in themselves, and the husband has received special damage, he must sue alone.* 2285. A wife has some rights against third persons, and even against her husband, for injuries committed upon her person. But in all cases when she sustains an injury her husband must be joined with her in bringing a civil action to redress the wrong. Contrary to the general rule that a wife cannot sue her husband, for her protection the law allows her, when by the husband's bad usage or threats her life is put in danger, to obtain sureties of the peace, by applying to a proper officer. And, generally, she may compel him to pay her a just alimony when, by his desertion or cruelty, he has forced her to separate from him. The courts will also compel the husband to pay reasonable fees to her counsel in all such cases. 2286. Though, in general, the husband has the lawful custody of the wife, yet if she be unlawfully restrained, she may sue out a writ of habeas corpus to obtain her liberty. 2287. We have seen that, when the wife commits adultery, the husband has an action against her paramour for the injury done to him. In this respect the law does not give a just reciprocity to the wife. She has no remedy for the injury done to her by the husband's infidelity; for this, if for no other reason, that she cannot sue alone, and the husband cannot recover damages jointly with his wife against the partner of his guilt. 2288. The rights between parent and child result from the legality of the marriage of the parents. When this kindred is established or presumed, the parties have rights and are bound by reciprocal duties to each other. 2289. A father is the natural guardian of his children, and he has therefore an interest in their persons, so that at any age he may defend them from all injuries, even by forcible means. He is entitled to their custody, and any act by which he is unlawfully deprived of it is a wrong to him. And when he has sustained special damages in consequence of the beating of his child, as where he has been compelled to employ a physician or a nurse, he may maintain an action to recover damages. But this right is limited to the infancy of the child and before he becomes of age, for after that period the father can recover no damages for an injury to him. 5 2290. For the seduction of his female child a father has no right, as such, to recover damages, because, unless she fills the capacity of a servant at the time of the seduction, the law presumes he sustained no damages, and it gives no compensatory remuneration for the feelings of the father; for, to the discredit 2 4 Term, 657. See Shelford, Marr. & D. 449. McKinney v. Western Stage Co., 4 Iowa, 420. 1 Lev. 140; Russell v. Corne, 1 Salk. 119. If the words are actionable in themselves, the wife must be joined. Johnson v. Dicken, 25 Mo. 580. Dennis v. Clark, 2 Cush. Mass. 347; Durden v. Barnett, 7 Ala. N. s. 169; Arnold v. Norton, 25 Conn. 92; Kennard v. Burton, 25 Me. 39. Flemington v. Smithers, 2 Carr. & P. 292; 4 Barnew. & C. 660; 7 Dowl. 133; see Seager v. Sligerland, 2 Caines, N. Y. 219; Doyle v. Jessup, 29 Ill. 460. of the law be it said, it gives no direct remedy to the unfortunate woman's parents. If the daughter is a minor, the relation of master and servant is presumed to exist although she is actually in the service of another, if the parent still has a right to claim her wages. If the daughter is over twenty-one, she must be shown to be in the service of her father. An action may be maintained by one standing in loco parentis as guardian. 2291. When a master sues for the seduction of his servant, not being the parent of the servant, he must prove the contract of hiring, for on that rests his whole case; but when, in addition to the relation of master and servant, that of parent and child also exists, the rule of the common law is so far relaxed that employment in acts of service is equivalent to a state of servitude; and in such case, by reason of the plaintiff's paternity, proof of no more than slight and desultory acts of service when the child had come of age will be sufficient evidence of hiring. Still, however, a state of servitude of some sort must be established.10 2292. Another injury to the relative rights of a parent is the abduction of his children; for this he also assumes the character of master. The remedy is by action on the case, per quod servitium amisit. In such case, as in that of seduction, the slightest evidence is sufficient to support the relation of master and servant." The father of a woman who has an illegitimate child stands toward such child in loco parentis, and may sustain an action for its abduction. 2293. Though the father has the control of his children, and he may correct them for their good, yet if by excessive beating he endangers their lives or their health, the law will interfere, and the father may be punished for an assault and battery, or, if he imprisons them, the courts will discharge them on a habeas corpus. Happily but few cases of such cruelty so revolting to our nature can be found. If a father by his cruelty and abuse induces an infant child to escape from him for fear of personal violence and abuse, and he cannot with safety return to live with him, he gives by such act authority to a stranger to furnish such a child necessary support and education, and he will be liable for the amount so expended for him.12 2294. The rights of guardian and ward much resemble those of parent and child. The guardian is considered as standing in the place of the father, and of course the relative powers and duties of guardian and ward correspond in a great measure to those of parent and child. In some respects they differ. The father is entitled to the services of the child, and is bound to support him; the guardian is not entitled to the services of the ward, and is not bound to maintain him out of his own estate. For an injury done to the ward by a stranger the guardian may bring a suit in the name of the child to recover damages. 2295. To create the relation of master and apprentice there must be a lawful contract entered into between the parties. This, as has been explained in another place,13 should be by deed. There are cases in which the master cannot sue for the abduction of the apprentice unless the relation between them has been duly constituted; though in general a third person cannot protect him 14 'Bolton v. Miller, 6 Ind. 262. 8 Keller v. Donnelly, 5 Md. 211; Nickleson v. Stryker, 10 Johns. N. Y. 115. • Ball v. Bruce, 21 Ill. 161; Bracy v. Kibbe, 31 Barb. Ñ. Y. 273. 10 Moritz v. Garnhart, 7 Watts, Penn. 302. " Moritz v. Garnhart, 7 Watts, Penn. 302, 303. 12 Staunton v. Wilson, 3 Day, Conn. 37. "Gye v. Felton, 4 Taunt. 876. VOL. I.-4 C 617 13 Before, 402. self from liability to an action for seducing away or detaining a servant, per quod servitium amisit, by setting up any formal objection to the contract of apprenticeship, or hiring while the service was continuing, and the apprentice himself is liable to be punished for running away, although the indenture be voidable, as he ought to have first avoided it by a reasonable notice.15 2296. The master has such an interest in his apprentice that he may defend him with force,16 and he may maintain an action for the battery of the apprentice, or for debauching him, or for any other injury to him, if any loss of service ensues.17 The most common injuries to the master are the seduction of his female servants or apprentices; the master has an action against the seducer, though not directly and ostensibly for the seduction, but because she is disabled by the act of the defendant from performing those services which she owed to her master. This rule applies to all kinds of masters and every variety of servant, so that when a father sues for the seduction of his daughter he must assume the less endearing name of master, to entitle him to a compensation; and if it cannot be proved that she has filled that office, the action cannot be sustained.18 But the least service which she may have performed will be sufficient, as, milking the cows; 19 it is, however, requisite that a specific contract or acts of service be established. 2297. Apprentices are a very valuable class of citizens, who in time become important members of society and well deserving the special care and protection of the law. They are entitled to good treatment from their masters in return for their obedience, submission, and faithfulness; if, therefore, the master withhold proper maintenance from the apprentice, or proper instruction, the magistrates and courts will in general compel him to do justice; provisions to compel the master in such cases to fulfil his engagement are to be found in the statutes of most of the states. And if a master, by cruelty, endanger the life of his apprentice, or, by his bad example, expose his morals to corruption, the apprentice will be discharged from his indentures. 2298. When the relation of employer and employed exists by a valid contract, and the master or employer is entitled to the services of the servant or person employed for a definite time, rights and duties exist on both sides, and when these are violated they are injuries. 2299. As the master is entitled to the services of his servant, it is evident that when an injury is committed against the servant, by which the master is damnified, the latter may have an action for the injury done to him. Enticing a workman who is employed by another for a definite time, before such time has expired, is an injury committed to his employer, and this though he be but a journeyman. And if a servant leave his master's employment without just cause, and a third person retain him and knowingly harbor him, so as to deprive the master of his services, an action lies." But a person entitled to the 20 15 Ashcroft v. Bertles, 6 Term, 652. See 2 H. Blackst. 511. 16 Before, 408. 17 Woodward v. Washburn, 3 Den. N. Y. 369. 18 Grinnell v. Wells, 7 Mann. & G. 1033; Dean v. Peal, 5 East, 45; Postlethwaite v. Parkes, 2 Burr. 1879; Campbell v. Cooper, 34 N. H. 49. 19 Bennett v. Allcott, 2 Term, 168; see Moran v. Dawes, 4 Cow. N. Y. 412. 20 Hart v. Albridge, Cowp. 54. 21 Bacon, Abr. Master and Servant (O). Seidemore v. Smith, 13 Johns. N. Y. 322. See Boston Glass Manufactory v. Binney, 4 Pick. Mass. 425; Dubois v. Allen, Anth. N. Y. 94; Butterfield v. Ashley, 2 Gray, Mass. 254. |