other as servant and master, by allowing the female child to terminate it at any moment after she arrives at the age of twelve years, by uniting herself to some one in marriage. If the marriage of the daughter was a legal act, from the time of its consummation the daughter was legally discharged from all further duties to perform services for her parent, having assumed new relations inconsistent therewith."

Where seduction of a daughter is the injury complained of, some of the anomalies of basing the right of recovery upon the loss of services are deserving of special notice. A statement of the conclusions of the judicial mind under different sets of circumstances will show what these anomalies are.

*First—The father suing for this injury in the case of [*231] a daughter actually at the time being a member of his household, is entitled to recover in his capacity of actual master for a loss of services consequent upon any diminished ability in the daughter to render services. That an actual loss is suffered under such circumstances the law will conclusively presume, and evidence that the daughter was accustomed to render no service will not be received. And while this supposed loss will constitute the nominal ground of recovery, a substantial award of damages will be supported, based on the injury to the parental feelings and the shame and mortification which must follow from such a wrong. To this also may be added any pecuniary expense which the parent has been put to for care, medical attendance, etc.'

Second-If the daughter at the time was not actually a member of the father's household, yet if she were not in the actual

1 Bennett v. Allcott, 2 T. R. 166; Manvell. Thomson, 2 C. & P. 303; Thompson. Ross, 5 H. & N. 16; Harris v. Butler, 2 M. & W. 539; Blaymire. Haley, 6 M. & W. 55; Hedges v. Tagg, L. R. 7 Exch. 283; Clark v. Fitch, 2 Wend. 459; Hewitt

. Prime, 21 Wend. 79; Bartley v. Richtmyer, 4 N. Y. 38; Knight . Wilcox, 14 N Y. 413; White v. Nellis, 31 N. Y. 405; Furman v. Van Sise, 56 N. Y. 435; Kennedy . Shea, 110 Mass. 147; Howland v. Howland, 114 Mass. 517; Blanchard . Ilsley, 120

Mass. 487; S. C. 21 Am. Rep. 535; McAulay . Birkhead, 13 Ired. 28; Vossel v. Cole, 10 Mo. 634; Emery v. Gowen, 4 Me. 33. It makes no difference whether the debauching was by artifice or force. Lawrence v. Spence, 99 N. Y. 669; Lavery v. Crooke, 52 Wis. 612. The father's administrator may recover for a seduction. Noice v. Brown, 39 N. J. L. 569. If before any expense is incurred by the father the daughter marries he cannot recover. Humble v. Shoemaker, 70 Ia. 223.

service of another, and the father had a right to recall her to his own service, he may maintain the action the same as if she actually had been recalled or had returned.'

Third-But if the daughter was actually in the service of

another, no action could be maintained by the parent, [*232] because the *conditions which support it did not then exist. In such a case the person in whose employ she was for the time being might maintain the suit, unless he himself were the wrong-doer, in which case it could not be brought at

all.' To this last statement this exception is to be made: that if the defendant procured the woman to enter his service fraudulently and for the purpose of withdrawing her from her family and seducing her, this is a wrong which precludes his claiming any rights or protection as master, and the parent may support an action as if the hiring had never taken place."

This statement of the law is sufficient to show some of its absurdities, and to justify some recent statutory changes.

3

The time when the cause of action is deemed to have accrued may depend upon the form of action. This may be either in trespass or case. If the wrong-doer comes upon the premises of the plaintiff and accomplishes the seduction there, the wrongful act characterises his entry upon the land, and the seduction is to be regarded as an aggravation of the trespass. Trespass, therefore, can only be brought by the parent when the doghe resided with him at the time of the seduction. But if the daughter, after seduction abroad, returns to the home of her parents, where expenses are incurred and los, actually or by presumption of law, suffered in consequence of the duction, the right of action is deemed to arise from this expense or loss, but the action must be in case for the consequential injury. It is, therefore, sufficient that the actual or supposed relation of master and servant exist, either at the time of the seduction or at the time of the resulting damage; the form of the remedy being varied to meet the facts, but the substantial recovery being the same in each case.' In New York, however, [*233] this distinction is denied, and it is held that whether the form of action be trespass or case, the actual or supposed relation which supports the action must have existed at the time of the seduction. That would certainly be true were the action brought by one who sustains only the conventional relation of master to the woman seduced: he cannot hire a disabled servant, and then claim the wrong which disabled her as an injury to himself; but where the parent sues, the real relation has existed from the first

1See Edmondson v. Machell, 2 T. R. 4; Bennett v. Allcott, 2 T. R. 166; Manvello. Thomson, 2 C. & P. 303. Speight . Oliviera, 2 Stark. 435; Dain . Wyckoff, 18 N. Y. 45.

Hubbell . Wheeler, 2 Aik. 359;

Parker v. Meek, 3 Sneed, 29; Logan v. Murray, 6 Serg. & R. 175.

4 Parker v. Meek, 3 Sneed. 29; Ellington v. Ellington, 47 Miss. 329. Sargent v. —, 5 Cow. 106. Bartley v. Richtmyer, 4 N. Y. 38.

-the right of control being only suspended while the danghter was in the service of another-and the law imposes upon the parent certain obligations in the support of his children from which he is not released by their misconduct. There is, consequently, a very obvious difference between a master hiring a disabled servant and a parent receiving back to his home a disabled child. In the former case the master assumes no consequences except as, in view of his own interest, he bargains to do so; but in the latter, the child must be taken as she is, and the cause of action may well be held to relate back to the time when the wrongful act was committed from which injurious consequences subsequently flow.'

It is not essential to the maintenance of the suit that pregnancy should have resulted; it is sufficient if the ability to perform services was in any degree impaired as a direct consequence of the defendant's conduct."

If the father is deceased, the mother may bring the action for this injury.'

[*234]

*It has been said above that the damages in these cases are by no means measured by the loss of service and the incidental care and expenses. It has been well said in Pennsylvania that "proof of the relation of master and servant, and of the loss of service, by means of the wrongful act of the defendant, has relation only to the form of the remedy, and that the

1

In Coon v. Moffitt, 3 N. J. 583, a mother was held entitled to sue for the seduction of her daughter, the seinction taking place before the fathers death and the confinement afterwaid. The subject is carefully examined by PENNINGTON, J., in this case, who suggests that a master, where the service began after the seduction, might also recover for loss of service in confinement if his contract for the service antedated the seduction.

2 Abrahams. Kidney, 104 Mass. 222; White v. Nellis, 31 Barb. 279, or sexual disease. Blagge v. Ilsley, 127 Mass. 191.

See Knight v. Wilcox, 14 N. Y. 413; Boyle v. Brandon, 13 M. & W.

738. Compare Eager . Grimwood, 1 Exch. 61.

4 Coon v. Moffitt, 3 N. J. 583; Sargent v. 5 Cow. 106; Furman v. Van Sise, 56 N. Y. 435; Gray 0. Durland, 51 N. Y. 424. Felkner ». Scarlet, 29 Ind. 154. It must appear that the mother was actually entitled to the child's services. Hobson . Fullerton, 4 Ill. App. 280; Ryan . Fralick, 50 Mich. 483.

Under the statutes of New York a wife who has been abandoned by her husband, and keeps a boarding-house on her own account, may sue in herown name for the seduction of her daughter, over 21 years of age, who lives with her and performs services for her. Badgley v. Decker, 44 Barb. 577.

action being sustained in point of form by the introduction of these technical elements, the damages may be given as a coinpensation to the plaintiff, not only for the loss of service, but also 'for all that the plaintiff can feel from the nature of the injury.'" Similar expressions are to be met with in the decisions of other courts.' When thus the substantial ground of recovery is found not to be the ground on which the action is nominally planted, we cannot refrain from uniting with the Supreme Court of Mississippi in expressions of regret that the law should be chargeable with such manifest absurdities, and in agreeing that "that system of jurisprudence which punishes in damages the slightest aggression upon property, but denies redress to the father, and if he be dead, to the mother, for the defilement of an infant daughter, except upon the predicate of a loss of services, is at variance with the sentiments and *conscience of [*235] this age." But the evil is not one to be corrected by judicial action; to uproot it would be to create new law, and this is the province of legislation. Many States now have statutes which allow suits for seduction to be brought for the benefit of the woman herself, some near relative, or a guardian being suffered to bring it, and all allegations of loss of service being dispensed with.'

'LEWIS, J., in Phelin . Kenderdine, 20 Penn. St. 354, 361, quoting 2 Greenl. Ev., § 579.

See, particularly, Lipe . Eisenlerd, 32 N. Y. 229, 236, per DENIO, Ch. J.; Clark v. Fitch, 2 Wend. 459; Stiles . Tilford, 10 Wend. 338; Pruitt . Cox, 21 Ind. 15; Felkner o. Scarlet, 29 Ind. 154; Taylor . Shelkett, 66 Ind. 297; Phillips . Hoyle, 4 Gray, 568; Grable v. Margrave, 4 Ill. 372; White . Murtland. 71 Ill. 250; Kendrick . McCrary, 11 Geo. 603; Ellington. Ellington, 47 Miss. 329; Lunt v. Philbrick, 59 N. H. 59; Morgan v. Ross, 74 Mo. 318; Rollins v. Chalmers, 51 Vt. 592. So in an action for enticing away a child, the parent may recover for his mental suffering. Stowe. Heywood, 7 Allen, 118: Magee . Holland, 27 N. J. 86. In the case of injuries to the child, for

which he would have an action in his own behalf, the recovery of the parent must be restricted to the actual pecuniary loss. Cowden v. Wright, 24 Wend. 429; Whitney v. Hitchcock, 4 Denio, 461; Karr v. Parks, 44 Cal. 46; Sykes v. Lawlor, 49 Cal. 236; Boyd v. Blaisdell, 15 Ind. 73; Donahoe v. Richards, 38 Me. 376; Rooney v. Milw. Chair Co, 65 Wis. 397; Dunn v. Cass Ave. Ry. Co., 21 Mo. App. 188; Durkee v. Centr. Pac. R. R. Co., 56 Cal. 388. He may recover for loss of service, care of child, and expense resulting from injury, for a period not extending beyond the child's majority. Frick v. St. Louis &c. Co., 75 Mo. 542.

Ellington . Ellington, 47 Miss. 329, 351.

4 See Updegraff v. Bennett, 8 Iowa, 72; Felkner v. Scarlet, 29 Ind. 154.