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98. EnglIsh: Chamberlain v. Haziewood, 5 Mees. & W.

515, 151 Eng.Rep. 218 (1839).

39. 2 Cal. (N.Y.) 292 (1805).

the daughter. It could hardly be said that Trespass and Assault would lie for such an act, The father is then put to his remedy by Trespass quare domum fregit, laying the seduction, &c., by way of aggravation. The defendant does not become a trespasser ab initio, for license was given by the party. A person who is guilty of abusing an authority in fact, does not thereby become a trespasser ab initio; but it is otherwise where a license is given by the law.” 2
Actions Against the Master for Injuries Oc­casioned by the Wrong of the Servant— Vicarious LiaNlity

THE relation of master and servant was and is contractual in nature. Once the rela­tionship was established obligations accrued on both sides. The master was under a duty to provide a safe place to work, to provide safe appliances and equipment, to warn the servant of dangerous conditions on the prem­ises, to provide suitable and competent fel­low servants, and to make reasonable rules to regulate the conduct of the work. On the other hand the servant was required to exer­cise reasonable care for his own safety and in the exercise of his duties within the scope of his employment. And it is important to observe that once the master-servant rela­tionship is established, the master may be subjected to vicarious liability for the serv­ant’s torts, although the master is free of any wrongful conduct.3 Such liability has to do with those acts so closely related with what the servant was employed to do, and which were reasonably incidental to it, as they could be viewed as methods, although of questionable validity, of carrying out the master’s instructions. As to what acts are authorized, depends upon the time, place and purpose of the act, together with its similar­ity to the acts authorized. And in 1834, In

2. 4 Cow. (N.Y.) 412, 418 (1825).
~. See article bY Powell, Some Phases of the Law of Master and Servant, 10 Col.LRev. 1 (1910).

L 4 Cow. (N.Y.) 412 (1825).

Sec. 93



the case of Joel v. Morrison,4 Baron Parke, ruled that a master was not liable for the tortious acts of his servant where the serv­ant was not in pursuit of his master’s busi­ness, but was “on a frolic of his own.”

In general, the master is subject to liabil­ity for injuries caused by the tortious con­duct of the servant where such conduct is within the scope of his employment; and the remedy against the master for injuries re­sulting from the wrong of his servant is in Case, even though, against the servant, it might for the same act be Trespass; 5 but un­der some circumstances, the master may also be liable in Trespass.° Where an injury aris­es from the want of care or negligence of the servant, the remedy against the master is in Case; but if it occurs as the necessary or natural and probable consequence of an act of the servant, ordered expressly or im­pliedly by the master, then the act is the master’s, and, if the act was forcible and the
4. 6 Car. & P. 501, 502, 172 Eng.flep. 1338 (1534).
5. English: M’Manus V. Crickett, I East 106, 102 Eng.

Rep. 43 (1800); Connecticut: Haven v. Hartford &

N. H. B. Co., 28 Conn. 6.9 (1831); Illinois: Arasmith

v. Tample, 11 1ll.App. 39 (1882); Illinois Cent. B.

Co. ‘cc Rudy, 17 III. 580 (1856); Toledo \V. & W, B.

Co. V. Harmon, 47 III. 298, 306, 95 Am.Dec. 489, 490

(1868); New York: Broughton v. Whallon, S Wend.

(N.Y.) 474 (1832). See, also, Wright v. Wilcox, 19

Wend. (N.Y.) 343, 32 Am.Dec. 507 (1838); Mali st

Lord, 39 N.Y. 381, 100 Am.Dee. 448 (1868).

What the servant does in the course of business with­out directions is not the master’s act, but the latter is nevertbcless liable on the principle of rcspondeat superior, a kind of insurance obligation to answer for the acts of the servant.
6. Gregory v. Piper, 9 Barn. & C. 591, 109 Eng.Eep,

220 (1829). See, also, Chicago & N. W. v. Peacock,

48 111. 253 (1868), which involved Trespass against a

railroad company where the Conductor forcibly ex­pelled a passenger from a car. Cf. St. Louis A. &

C. B. Co. v. Dalby, 19 III. 353, 375 (1857).
~. English: Moreton v. Hardern, 4 Barn. & c. 223, 107

Eng.Rep. 1042 (1825); Kentucky: Johnson v. Castle­man, 2 Dana (Ky.) 878 (1834); Massachusetts:

Barnes v. Herd, 11 Mass. 57 (1814); New York:

Wright v. Wilcox, 19 Wend. (N.Y.) 343, 32 Am.Dec.

507 (1838).

injury immediate, the rcmedy is Trespass.8 Under the early decisions such as M’Manu,s

v. Crickett~ the courts refused to hold the master liable for intentional misconduct on the part of the servant, on the theory that the fiction of an implied command of the master was inapplicable. But under modern law, in allocating the risk of the servant’s conduct, it has been held that wilful torts may be so connected with the employment as to fall within its scope.’°
Alienation of Husband’s Affection

IT has long been the law that a husband could maintain an action f or the alienation of his wife’s affections. Comparatively re­cently a case 11 of novel impression was con­sidered involving the issue as to whether a wife could maintain an action under New Jersey law against the defendant for “mali­ciously enticing away the plaintiff’s hus­band, and thereby alienating from her his affections.” It appeared that the Common-Law impediment as to remedy had been re­moved by a statute permitting a married woman to maintain an action in her own name, without joining her husband therein, for all torts committed against her or her separate property, in the same manner as if she were a feme sole.12 In sustaining the wife’s action, Minturn, J., after alluding

to the earlier, but incorrect view as to the origin of Case out of the Statute of Westmin­ster II (1285),” concluded that the wife was entitled to vindicate her right in personam for a tort committed against her, and thus remedy the inequality to which she was sub­jected by the common law.
S. Illinois Cent. B. Co. v Reedy, 17 Ill. 580 (1822).
9. 1 East 108, 102 Eng.Rep. 43 (1800).
10. See article by Seavcy, Speculations as to ‘Be­spondeat Superior,” Harvard Legal Essays, 433, 453 (Cambridge, 1934).
11’ Sims v. Sims, 79 N.J.L. 577, 76 A. 1063 (1910).
12. N.Jj’.L.’s 525 (1906).
13. 13 Edw. I.



THE Declaration, in an action in an Ac­tion of Trespass on the Case for Deceit, must show the essential elements in the wrong,14 to wit: 1. The specific false representa­tions of material facts; 2. The scienter that the defendant knew his statements to be un­true; 15 3, That they were believed to be true by the plaintiff and were relied upon by him; 4. That the plaintiff acted thereon; and 5. That the plaintiff suffered damages by such action.

It should appear that the damage is the result of the deceit.16 It is not sufficient to charge fraud generally, but the specific facts constituting the fraud must be set forth in some detail, including the actual misrepre­sentations. While it is not necessary to charge an intent to defraud, it should appear that the representations were intended or calculated to influence the plaintiff to act up­on them.17
24. Florida: Watson v. Jones, 41 FIn. 241, 25 so. 678

(1899); Illinois: Cautweli v. harding, 249 Ill. 854,

94 N.E. 488 (1911); New Jersey: Eibel v. Von Fell,

63 N.J.L. 3, 42 A. 754 (18991; Michigaa: Pforzheim­er v. Selkirk, 71 Mieb. 600, 40 N.W. 12 (1888); New

York: Arthur v. Griswold, 55 N.Y. 410. 8cc, also,

20 Cyc. 102.

15. English: Pasley v. Freeman, 3 TB. 51, 100 Eng. Rep. 450 (1789); New York: Upton v. Vail, 6 Johns. (N.Y.) 181 (181W; Pennsylvania: Lummis v. Strat­ton, I Pa. 243 (1807).
t6. “As the plaintiff van recover nothing in this ac­tion without proof of material fraud—that is, such as has resulted in actual damage—and can recover for such loss only as be can show to be a direct consequeaee of that fraud (Seclgwick on Meas. of Dam. 659; 2 Parsons on Contracts, 769; lb. 771), it follows that the plaintiff must show, with rea­sonable certainty, in his Declaration, not only what the fraud was by which he has been injured, but also its connection with the alleged damage, so that it may appear judicially to the Court that the fraud and the damage sustain to each other the relation of cause and effect, or, at least, that the one might have resulted directly from the other.” Byard v. Holmes, 34 N.J.L. 296, 297 (1870).
17. “The result of the authorities, so far as I have examined them, whether casco or precedents, is, that a mere General Allegation that the matter stat-

Malicious Prosecution ‘~

AT Common Law, when an injury is done to another maliciously, by the Process of a Court, as for example, in the case of a mali­cious arrest, a malicious prosecution of a criminal charge, or a malicious attachment of goods, the Action of Trespass on the Case is the proper remedy, if the Process was reg­ular and the Court had jurisdiction; for there has been no trespass. It is said, how­ever, that either Case or Trespass will lie if the Process was both malicious and un­founded, even though the Court had juris­diction. Of course, the remedy is in Tres­pass, and not Case, where the Process or proceeding was irregular and void.

In case for malicious prosecution, the Dec­laration must show that the original prose­ed was a pretence, and that the plaintiff was falsely

and fraudulently deceived by It, is not suthcient, ei­ther in Criminal or Civil Cases, to fasten upon such matter the character of a false pretence, and that this can he done in no other way than by a distinct and specific averment of the falsehood of each sep­arate matter of fact stated by the defendant, and intended to be denied by the plaintiff.

What has been said with reference to the first Count will be found to apply in all respects, to the second and third, and, I think, substantially to the fourth Count also.” Byard v. Holmes, 34 N.J.L. 296, 299 (1870),
1$. In general, on the subject of Malicious Prosecu­tiers, see:
Articles: Ormsby, Malice in the Law of Torts, S L. Q.Rev, 140 (1502); Elliott, Malice in Tort, 4 St. Louis L.Bev. 50 (1919); Harper, Malicious prosecu­tion, False Imprisonment and Defamation, 15 Tex. tHey, 157 (1937).
Commeats: Malicious Prosecution—Civil Action—Ab. sence of Arrest or Seizure, 16 Mich.L.llev, 653 (1917— 18); The Bight to Recover for Malicious Alienation of a Child’s Affections, 40 Harv.L.Rev. 711 (1927); Torts—Action for Malicious Prosecution—Failure

of Information to State Facts Constituting Crime as

Defense, 11 Minn.L.Rcv. 675 (1027); Malicious Pros­ecution--Liability of Prosecuting Attorney, 12 Minn. L.Rev. 665 (1928); Malicious Prosecution—Convic­tion and Reversal in Criminal Suits as Evidence of Probable Cause, 22 Minn.L.Rev, 740 (1938); Mali­cious Prosecution—Juvenile Delinquency Proceed­ings as a Basis for an Action, 22 Minn.L.Rev. 1060 (1938).


Ch. 8

Sec. 93



cution of the plaintiff by the defendant was brought in a court at the instance of the de­fendant; the crime charged must be stated, although it is not necessary that it appear that it was sufficiently charged, and it must appear that the charge was made falsely, maliciously, and without any reasonable and probable cause; it must also appear that the accused was innocent, and that the proceed­ings are at an end, having been terminated in his favor; and the damages must also be alleged, as damage is the gist of the actiortt°

The form of a Declaration for Malicious Prosecution is set out below:

Court of the County of , to

wit, Term.

complains of , who has been summoned to answer the said plaintiff of a plea of trespass on the case, for this, to wit, that on the day of , 19__,

at , the defendant went before one

a United States commissioner for

the _______ district of , and then and

there before said falsely and mali­

ciously and without any reasonable or prob­able cause whatsoever, charged plaintiff with having feloniously stolen or taken from out of a mail of the United States a certain reg­istered letter received by plaintiff as post­

master at , on or about the ______

day of , 19, and upon such charge

the defendant falsely and maliciously and without any reasonable or probable cause whatever, caused and procured said _______ United States commissioner as aforesaid, to make and grant his certain warrant under his hand for the apprehending of plaintiff and for having plaintiff before him, the said

or some other United States com­missioner, to be dealt with according to the

19. On the Declaration In Malicious Prosecution, see

19 Standard Proc. 83—97; Plppet v. Hearn, 5 Barn.

& AId. 634, 106 Eng.Rep. 1322 (1822).

law of said supposed offense, and said defend­ant, under and by virtue of said warrant, afterwards, to wit, , 19_, at ______ county, , aforesaid, wrongfully and unjustly and without any reasonable cause whatsoever, caused plaintiff to be arrested by his body and taken into custody and to be imprisoned and brought by public convey­

ance from , county, to

_______ in the custody of a deputy marshal of the United States, and before a great many people in the public highway and the streets of , and to be detained in cus­tody a long space of time, to wit, hours then next foliowing and defendant aft­erwards, to wit, , 19—, at _______ falsely and maliciously and without any rea­sonable or probable cause whatsoever, caused the plaintiff to be carried in custody before

said , so being United States com­

missioner as aforesaid, to be examined be­fore said commissioner of and concerning said supposed crime, which said commission­er, having heard and considered all that said defendant could say or allege against the plaintiff touching said supposed offense, then and there, to wit, on the day last aforesaid,

at , adjudged and determined that

the said plaintiff was not guilty of the said supposed offense, and then and there caused the plaintiff to be discharged out of custody, fully acquitted and discharged of the said supposed offense, and the defendant hath not further prosecuted his said complaint, but bath deserted and abandoned the same, and the said complaint and prosecution is wholly ended and determined, to wit, at ______ aforesaid; to the plaintiff’s damage

dollars. And therefore he brings his suit.
ENCYCLOPEDIA OF FORMS No. 13415 and No. 6951.
Slander and Libel

(I) Strictness of Common-Law Pleading in Defamation Cases Explained.—The re­quirements of Common-Law Pleading are


strict and technical in regard to Declarations for Slander and Libel. This was true because the idea of defamation originated in the Civil Law, coming into English law through the Ecclesiastical or Church Courts, and hence the allawance of a remedy at Common Law for such actions invoked the rule of strict construction in pleading such causes. It was for this reason, that in declaring on contracts or other written instruments, the General Common Law Rule that the pleadcr night set out the instrument or writing verbatim, or according to its legal effect, was inap­plicable as to libel and slander cases; the li­bel or slander had to be set forth verbatirn.~° This rule, first adopted in England by the Criminal Court of Appeal was in time as­similated by the Civil Courts, and hence passed on down to modern time. The rea­son for this rule was that the Appellate Court could not tell whether the Lower Court had ruled correctly that the words spoken or writ­ten constituted libel or slander, as a matter of law, without having the very words as used in the Criminal Indictment before it. It was therefore required that the very words complained of be set out “in order that the court may judge whether they constitute a ground of action and also because the defend­ant is entitled to know the precise charge against him and cannot shape his ease until he knows.” 21
(IT) The Characteristics and Form of the Declaration in Slander.—Eecause the Com­mon-Law Courts regarded libel and slander
ZO. In declaring on Contracts or other Written In­struments the genus Common Law Rule is that the pleader must set out the Instrument sued upon verbatim, or in the words in which they were made, or according to their legal effect 1 Chltty, A Trea­tise on PleadIng, 229 (Springfield, 1833). To this General Rule there were two exceptions, to wit, in cases involving Negotiable Instruments and In Libel and Slander cases, the original Common Law Rule being that in such eases the words bad to be set out verbatim. It has, of course, been modified.

U. Webster v. Rolmen, 62 N.S.L. 55, 40 A. 719 (1898).

actions as an innovation, and applied the rule of strict construction in pleading such actions, it is no surprise to find that the Dec­laration in slander at Common Law consists of an elaborate and absurd jargon of recitals and explanations which obscure the real is­sues to be tried almost as effectually as if the pleadings were still drawn in Latin, as will appear from the form set out below:




To the October Term, A.D. 1926


Arthur Brown, by William Jolm­son, his attorney, complains of Clar­ence flowell, defendant, who has been summoned to answer the plain­tiff in a plea of trespass on the case for slander.

INDUCEMENT; For that whereas, on the 16th day of January, 1926, In the County of Cook, and until the committing of the grievance by the defendant as here­inafter mentioned,

the plaintiff was always reputed, esteemed, and accepted by all his neighbors, and other good and worthy citizens of the State to whom he was in any wise known, to be a persos of good name, tame and credit, and he was, is, and always has been a good, true and faithful clti2en of the State, and has never been guilty of or suspected of being guilty of the crime of perjury or any other crime.

2!. The principles of General Application as to Decla­ration and subsequent pleadings, both as to Form and Substance, are considered In Chapter 5, The Declaration—General Rules as to Alleging Place, Time, title and Other Common Matters; and Chap­ter & The Dee)aration—Generaj Rules as to Man­ncr of Pleading.


Ch. 8









BODY: CONCLU- Wherefore the said plaintiff saifli

Preliminary ~ION: he is injured and bath sustained

Extrinsic damage to the amount of five thou’

Facts: And whereas niso, before the said sand dollars, and therefore lie brings

grievance of the said defendant, a his suit.

certain action had been pending be- WILLrAM JoHNsoN fore a certain justice of the peace, Attorney for plaintiff. wherein the State of Illinois was the

2 CHrrTY on Pleading, 620-4326 (Springfield, 1833).

plaintiff and one Fred Jones was the

defendant, and which action had been (Ill) Essential Allegations in Slander and

tried at the Circuit Court for the

LibeL—In the Declaration for slander or Ii-

County of Cook, and on such trial

the plaintiff was examined on oath, bel elaborate averments are required to pro-and had given his evidence as a wit- duce 4’certainty” in the charge, the formal

ness on behalf of the State of lilinois,

parts of which are five in number:

to wit, on June 25, 1925, at Chicago,

in the County of Cook as aforesaid. (A) The Inducement, the Preliminary
GEAVAMEN: Yet the said defendant, well know- Statement of Extrinsic Matter; and the Ing the premises, but contriving, Gravamcn.—’rtiis part of the Declaration wickedly and maliciously, to injure

contained a statement that prior to a certain

the said plaintiff in his name, fame

and credit, and to bring him into day the plaintiff had enjoyed a good name public scandal, infamy and disgrace among his neighbors, and if the words ut­with and amongst all his neighbors tered were not actionable in themselves, it

and other good citizens of the State, and causc it to be suspected and be- set forth the preliminary extrinsic facts to

lieved by those neighbors and citizens which the slander applied, and established a of the State that plaintiff had been basis for showing damage to the plaintiff.

guilty of the crime of perjury.

But if the words are prima facie actionable,

COLLOQUIUM: In a certain discourse which the no averment of extrinsic facts was necessary,

defendant had with the said plaintiff, as, for example, in Worth v. Butler,23 in on the 16th day of January, 1920, in which the defendant charged the plaintiff, an the County of Cook, of and concerning

the said plaintiff, in the presence and unmarried woman, of fornication, which was hearing of divers persons, and of and a felony.

concerning the said action, and of

and concerning the said evidence The gravarnen of an action for libel is not given by the plaintiff on the trial injury to the plaintiff’s feelings, but damage aforesaid, did falsely, wickedly, and to his reputation in the eyes of others. It is

maliciously compose, speak and pub­lish, of and concerning the plaintiff, not sufficient, therefore, that the plaintiff

in the presence of divers persons, cer- should understand himself to be referred to

thin false, scandalous, malicious and in the article. It is necessary to constitute

defamatory words, that is to say, “He” (meaning the plaintiff) “took a libel that others than the plaintiff should be

false oath.” in a position to understand that the plaintiff is the person referred to24

INNUENDO: Thereby meaning and intending

that the plaintiff, in the evidence (B) The (Jolloquium.—Anot her technical

given as a witness at the trial afore- requirement of a Declaration in Slander was

said, had sworn falsely and had been the Colloquium, which was an averment that

guilty of the crime known as perjury.

the defendant was speaking of and concern-

DAMAGES: And by means of the said premises ing the plaintiff. Where the words uttered

the said plaintiff is greatly Injured

In his credit and reputation, and

25. 7 Blackf. (Intl.) 251 (1844).

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