disturbance having previously ceased. The defendant is liable.1

In the case of affrays, however, an arrest may be made without a warrant not only during the actual breach of the peace, but so long as the offender's conduct shows that the public peace is likely to be endangered by his acts. Indeed, while those are assembled together who have been committing acts of violence, and the danger of renewal continues, the affray may be said to continue; and during the affray, thus understood, the officer may arrest the offender not only on his own view, but even on the information or complaint of another. This is true even of an arrest by a private citizen.2 For example: The defendant arrests the plaintiff without process under the following circumstances: The plaintiff had entered the defendant's shop to make a purchase, when a dispute arose between the plaintiff and a servant of the defendant resulting in an affray between them. The defendant, coming into the shop during the affray, orders the plaintiff to leave, which he refuses to do; the violence having then ceased, though there is still danger of a renewal of the affray. The defendant now gives the plaintiff into the custody of an officer. This is no breach of duty to the plaintiff.

8

The example given leads to the consideration of the nature of the right of a private citizen to arrest offenders without process of court; for it is (probably) lawful for

1 Compare Baynes v. Brewster, 2 Q. B. 375, where the defendant, on such facts, was a private citizen; but the rule would have been the same had he been an officer, as the language of Mr. Justice Williams in that case shows.

2 Timothy v. Simpson, 1 Cromp. M. & R. 757; s. c. L. C. Torts, 257; Baynes v. Brewster, 2 Q. B. 375, 386.

Timothy v. Simpson, supra.

such a person to make an arrest upon a warrant under the same circumstances in which an officer could do so.

The rule of law in regard to arrests for misdemeanors by private citizens is the same as prevails concerning officers; they are entitled to make the arrest without process while the breach of the peace is going on, or (in accordance with the explanation given) still continues. And a private citizen has no right to make an arrest, without process, for a misdemeanor after its termination, though the breach of peace was committed about his own premises.1

In regard to felonies, the rights of officers and private citizens are different. While an officer can arrest without a warrant upon probable cause, though no felony has been committed, a private citizen can safely make an arrest without a warrant only when (1) the felony charged has actually been committed, and (2) there was probable cause for supposing the party arrested to be guilty."

1 Baynes v. Brewster, 2 Q. B. 375, 386.

2 Allen v. Wright, 8 Car. & P. 522; s. c. L. C. Torts, 265. In Commonwealth v. Carey, 12 Cush. 246, 251, Chief Justice Shaw, in a dictum, states the rule thus: 'A private citizen, who arrests another on a charge of felony, does it at the peril of being able to prove a felony actually committed by the person arrested.' But that appears to be a mistake.

Statement of the duty. A owes to B the duty to forbear to entice away, harbor, or seduce B's child and servant capable of service, or B's ward towards whom B stands in loco parentis, or B's wife.

Interruption of the relation of master and servant in the ordinary sense has been considered in chapter iv. There the wrong turns upon malice. In the present chapter we have, inter alia, the relation of master and servant in a special sense, namely between parent and child. Here the wrong does not turn upon malice; the duty is absolute.'

6

Whether there is any legal difference between the wrongs of enticing away, harboring, and seduction in regard to a parent's right of action where his child was under age at the time has not been determined. The 'statement of the duty' assumes that there is none. If the child was of age, no action for harboring or (probably) for enticing away, alone, could be maintained, unless there was an actual contract for service, because ⚫ no right would be infringed. Seduction would make a different case, because of the disgrace; there would be breach of a right in such a case, the right to an untarnished name.

§ 2. OF PARENT AND CHILD.

A parent's right of action against one who has seduced or enticed away his child is the right of action of a master; that is, it turns upon the existence of the relation of master and servant, not upon parental authority or kinship. The right of action accordingly lasts as long as that relation lasts; it does not terminate necessarily when the child becomes of age.1

In England the parent's right of action terminates whenever the child leaves the parent's house with intention not to return.2 That rule does not obtain in this country. The father's right of action here does not depend upon the will of the child; notwithstanding the child's absence from her father's house at the time of the seduction, though she intends not to return, the father's right of action is not affected. This is true though she was at the time in the service of another with her father's consent. For example: The defendant seduces the plaintiff's daughter under the following circumstances: The daughter, at the age of nineteen, goes, with the consent of her father the plaintiff, to live with a relative, for whom she works when she pleases, receiving pay for her labor. While there, and still under age, she is seduced and got with child by the defendant, and returns to her father and is cared for. She had no intention, but for the seduction, to return. The defendant is liable.8

That, however, is the extent of the American rule. If the power of the parent over the child was gone at the time of the seduction, whether by his own act or by act of

1 Infra, p. 194.

2 Dean v. Peel, 5 East, 45. See Griffiths v. Teetgen, 15 C. B. 344; Manley v. Field, 7 C. B. n. s. 96; Hedges v. Tagg, L. R. 7 Ex. 283. 3 Martin v. Payne, 9 Johns. 387; s. c. L. C. Torts, 286.

the law, the seducer has violated no legal duty to him; though there has been some conflict of authority in regard to the application of this doctrine to the case of a return of the daughter after the seduction, a point to be referred to later.

It is considered, however, that, if the parent's control over his child was divested by fraud, he may treat it, on discovering the fraud, as never having been abandoned, and maintain an action against the seducer. For example: The defendant hires the plaintiff's daughter from his service with intent to seduce her, and by this means obtains possession of her person, and seduces her. The plaintiff is entitled to recover as if the daughter had been seduced while in his own service.

There must have been ability to render service at the time of the seduction;1 though whether actual services were being rendered or not, or what the extent or value of the services, has nothing to do with the right of action," and in many cases may have little if anything to do with the amount recoverable. Loss of service is indeed of the gist of the action; but when ability to perform service has been shown, damages may be given not merely for the actual loss of service but also for the disgrace inflicted upon the plaintiff and his family,3 the amount which may be given varying more or less with the station in life of the parties and being mainly within the judgment of the jury.*

The father's right of action continues, as has already been intimated, after the daughter has come of age, if the

1 Hall v. Hollander, 4 B. & C. 660.

2 See Grinnell v. Wells, 7 Man. & G. 1044, note to the case.

8 Terry v. Hutchinson, L. R. 3 Q. B. 599; Bartley v. Richtmyer, 4 Comst. 38; L. C. Torts, 294.

4 The only limit upon their action as to the amount, as in many other cases, is that it must not be excessive, under all the facts of the case taken together.