occupation of servants is not suo jure, but as servants and representing their master, and therefore it is the occupation of the proprietor himself." 104

It should be emphasized that, unless there is a statutory provision to the contrary, title cannot be put in issue. Though the ejector is the true owner, he may none the less be accountable for his forcible entry. He cannot make himself judge in his own cause. It is sufficient that another was in fact in actual possession of the premises.105 Enforcement of Discipline, Regulations, and Order

Under this general head may be grouped certain cases where authority to employ force is given by the law. Here, as in the instances already considered, the force must be reasonable in degree and appropriate to the purpose. Thus the father,1 106 mother,107 or a person to whom either has

104 State v. Curtis, 20 N. C. (4 Dev. & B.) 363, per Ruffin, C. J. To the same effect, Kerrains v. People, 60 N. Y. 221, 19 Am. Rep. 158. Cf. Beddall v. Maitland, L. R. 17 Ch. D. 174. Plaintiff was minister, and defendants trustees, of a church. It appeared that "an unfortunate controversy arose in the church and congregation, and that there was a want of that generous Christian spirit which should characterize the action of religious societies." Defendants ejected plaintiff from the parsonage. By the rules of the church, ministers were assigned and removed only by the "conference" or general governing body, no power being given to the congregations or trustees. Hence, held that the plaintiff was not in possession as a servant of the congregation, and could not forcibly be removed by the latter's representatives, the defendant trustees. BRISTOR v. BURR, 120 N. Y. 427, 24 N. E. 937, 8 L. R. A. 710, Chapin Cas. Torts, 134.

105 Hammond v. Doty, 184 Ill. 246, 56 N. E. 371; Mercereau v. Bergen, 15 N. J. Law, 244, 29 Am. Dec. 684; N. Y. City Baptist Mission Soc. v. Potter, 20 Misc. Rep. 191, 44 N. Y. Supp. 1051; Dustin v. Cowdry, 23 Vt. 631; Iron Mountain & H. R. Co. v. Johnson, 119 U. S. COS, 7 Sup. Ct. 339, 30 L. Ed. 504.

106 State v. Jones, 95 N. C. 588, 59 Am. Rep. 282, note. A stepfather is in loco parentis of his wife's children by a former husband, so long as they are supported and maintained by him, Gorman v. State, 42 Tex. 221; also one who lives with the mother as husband, although unmarried, State v. Alford, GS N. C. 322.

207 Rowe v. Rugg, 117 Iowa, 606, 91 N. W. 903, 94 Am. St. Rep.

delegated authority,108 may inflict chastisement upon the child as a disciplinary measure. As already seen, the minor child can maintain no action in tort against the parent.109 Should the chastisement be excessive, however, the latter may be held criminally accountable, though the courts are not disposed to go closely into this question, since a large margin must be left to the judgment of the parent.110 A school master may likewise punish his pupil,111 though his right is more limited than that of a parent,112 and its abuse may constitute ground, not only for a criminal prosecution,113 but also for an action in tort.111

111

While the vessel is on its voyage, the master possesses a similar power over the crew for the purpose of enforcing obedience and preserving order. "Such an authority is Rugg, supra; Harris v. State, 115 Ga. 578, 41 S. E.

108 Rowe v. 983.

109 See supra, p. 133.

110 Neal v. State, 54 Ga. 281; People v. Green, 155 Mich. 524, 119 N. W. 1087, 21 L. R. A. (N. S.) 216. See State v. Jones, 95 N. C. 588, 59 Am. Rep. 282, note.

111 SHEEHAN v. STURGES, 53 Conn. 481, 2 Atl. 841, Chapin Cas. Torts, 137; Lander v. Seaver, 32 Vt. 114, 76 Am. Dec. 156.

112 "The books commonly assume that a teacher has the same right to chastise his pupil that a parent has to thus punish his child. But that is only true in a limited sense. The teacher has no general right of chastisement for all offenses, as has the parent. The teacher's right in that respect is restricted to the limits of his jurisdiction and responsibility as a teacher. But within those limits a teacher may exact a compliance with all reasonable commands, and may in a kind and reasonable spirit inflict corporal punishment upon a pupil for disobedience. This punishment should not be either cruel or excessive, and ought always to be apportioned to the gravity of the offense and within the bounds of moderation. But plainly, when complaint is made, the calm and honest judgment of the teacher as to what the situation required should have weight, as in the case of a parent under similar circumstances; and where no improper weapon has been employed, the presumption will be, until the contrary is made to appear, that what was done was rightly done." Vanvactor v. State, 113 Ind. 276, 279, 15 N. E. 341, 3 Am. St. Rep. 645.

113 Boyd v. State, 88 Ala. 169, 7 South. 268, 16 Am. St. Rep. 31; State v. Mizner, 50 Iowa, 145, 32 Am. Rep. 128; Com. v. Randall, 4 Gray (Mass.) 36.

114 Patterson v. Nutter. 78 Me. 509, 7 Atl. 273, 57 Am. Rep. 818.

absolutely necessary to the safety of the ship and of the lives of the persons on board," 115 and extends, though to a more limited extent, over the passengers, who must obey all reasonable orders and in an emergency may be compelled to work the ship.116 No such necessity can exist where carriage is by land, though for the failure to observe a reasonable regulation the passenger may be ejected.11 An innkeeper may under like circumstances remove a guest.1 In many states the willful disturbance of any assembly or meeting not unlawful in its character is made. a criminal offense; 119 but, even in the absence of such a statute, there can be no doubt that the disturber may be ejected.120

118

115 Brown v. Howard, 14 Johns. (N. Y.) 119, 123; The Stacey Clarke (D. C.) 54 Fed. 533; Michaelson v. Denison, Fed. Cas. No. 9,523; Roberts v. Eldridge, Fed. Cas. No. 11,901, 1 Sprague, 54. Since this is based upon necessity, he will be liable for an assault committed while in port, where there is no emergency. Padmore v. Piltz (D. C.) 44 Fed. 104

116 See King v. Franklin, 1 F. & F. 360.

117 E. g. failure to pay fare, Chicago, R. I. & P. Ry. Co. v. Herring, 57 Ill. 59; Stone v. C. & N. W. R. Co., 47 Iowa, 82, 29 Am. Rep. 458; Sanford v. Eighth Ave. R. Co., 23 N. Y. 343, 80 Am. Dec. 286; endangering the safety or interfering with the reasonable comfort and convenience of other passengers, Putnam v. Broadway & Seventh Ave. R. Co., 55 N. Y. 108, 14 Am. Rep. 190.

118 See McHugh v. Schlosser, 159 Pa. 480, 28 Atl. 291, 23 L. R. A. 574, 39 Am. St. Rep. 699. "If a man comes into a public house and conducts himself in a disorderly manner, and the landlord requests him to go out, and he will not, the landlord may turn him out. To do this, the landlord may lay hands on him; and in so doing the landlord is not guilty of any breach of the peace. But if the person resists, and lays hands on the landlord, that is unjustifiable assault upon the landlord." Howell v. Jackson, 6 C. & P. 723, 725, 25

E. C. L. 657, per Parke, B.

119 See Penal Law N. Y. (Consol. Laws, c. 40) § 1470.

120 Wall v. Lee, 34 N. Y. 141; Furr v. Moss, 52 N. C. 525; Collier v. Hicks, 2 B. & Ad. 663, 9 L. J. K. B. (O. S.) 300, 9 L. J. M. C. (O. S.) 138, 22 E. C. L. 278, 109 Eng. Repr. 1290; Bradlaugh v. Erskine, 47 L. T. Rep. (N. S.) 618, 31 Wkly. Rep. 365. Cf. Cooper v. McKenna, 124 Mass. 284, 26 Am. Rep. 667.

FALSE IMPRISONMENT

64. "False imprisonment consists in the unlawful detention of the person of another for any length of time, whereby he is deprived of his personal liberty." 121

The detention need not be within a room. "Every confinement of the person is an imprisonment, whether it be in a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the public streets." 122 Thus, restraining a passenger at the gate of a station until he pays his fare may constitute imprisonment.123 It makes no difference how short the time may be, though this may bear on the amount of damages.124 "Nor is it necessary that the act be under color of any legal or judicial proceeding." Nor is it essential that there should be detention at a fixed place. One is imprisoned whose powers of locomotion are so controlled that he is forced to move or stay as directed by another. Were it otherwise, a party arrested would be deemed to have no cause of action for this tort unless and until he had actually been lodged in jail.126

"125

But the restraint must be total, not partial. There is no imprisonment where a way is left open, as where one is merely prevented from proceeding in a given direction, but is permitted to retrace his steps. Imprisonment is not to be

121 Civ. Code Ga. 1895, § 3851, quoted in Thorpe v. Wray, 68 Ga. 359, 367.

122 3 Bl. Comm. 127.

123 Lynch v. Metropolitan El. Ry. Co., 90 N. Y. 77, 43 Am. Rep. 141.

124 Cf. Bridgett v. Coyney, 1 M. & R. 211, 6 L. J. M. C. (O. S.) 42, 31 Rev. Rep. 316, 17 E. C. L. 661; SIMPSON v. HILL, 1 Esp. N. P. 431, Chapin Cas. Torts, 139, where it was said: "If the constable, in consequence of the defendant's charge, had for one moment taken possession of the plaintiff's person, it would be in point of law an imprisonment."

125 Comer v. Knowles, 17 Kan. 436, 440, per Valentine, J.

128 See Johnson v. Tompkins, Fed. Cas. No. 7,416; Fotheringham v. Adams Express Co. (C. C.) 36 Fed. 252, 1 L. R. A. 474.

CHAP.TORTS-18

confounded with mere loss of freedom to go whithersoever one pleases. "A prison may have its boundary, large or narrow, visible and tangible, or, though real, still in the conception only; it may itself be movable or fixed, but a boundary it must have, and that boundary the party impris oned must be prevented from passing. He must be prevented from leaving that place within the ambit of which the party imprisoning would confine him, except by prison breach." This must necessarily assume that no hazard will be incurred in departing along the open way.'

"127

128

This wrong is akin to assault and battery, but the statement, sometimes made, that all imprisonments necessarily. involve or presuppose the commission of an assault or battery, is not correct.129 It is not required that there be a touching of the body, or an attempt to inflict violence. It will, of course, be imprisonment if I detain one or compel him to accompany me by a manual seizure of his person,' or by keeping him covered with a revolver,131 but it will likewise be imprisonment if he submits under a reasonable apprehension that otherwise force will be employed.132 One is not required to resist in order to preserve his rights, and

130

127 BIRD V. JONES, 7 Q. B. 742, 743, 9 Jur. 870, 15 L. J. Q. B. 82, 53 E. C. L. 742, Chapin Cas. Torts, 141, per Coleridge, J.

128 It may be no imprisonment to be locked in a room which is on a level with the ground and in which there is an open unbarred window extending to the floor. It would be quite another question if the room were on the fourth floor, though one might retreat by a fire escape ladder. But see Bigelow on Torts (8th Ed.) 341.

129 Emmett v. Lyne, 1 Bos. & P. N. R. 255.

130 People v. Wheeler, 73 Cal. 252, 14 Pac. 796.

131 McNay v. Stratton, 9 Ill. App. 215; Hildebrand v. McCrum, 101 Ind. 61.

132 New York, P. & N. R. Co. v. Waldron, 116 Md. 441, 82 Atl. 709, 39 L. R. A. (N. S.) 502; Moore v. Thompson, 92 Mich. 498, 52 N. W. 1000; Ahern v. Collins, 39 Mo. 145; Callahan v. Searles, 78 Hun, 238, 28 N. Y. Supp. 904; Wood v. Lane, 6 C. & P. 774, 25 E. C. L. 683. "If the bailiff, who has a process against one, says to him, while he is on horseback or in a coach, 'You are my prisoner, I have a writ against you,' upon which he submits, turns back, or goes with him, though the bailiff never touched him, yet it is an arrest, because he submitted to the process." Horner v. Battyn, Buller's N. P. 62.