contract of service, which has been broken through the procurement of the defendant. Actual service is not enough. Here, there was no contract, express or implied, for the breach of which the father could have sued his daughter. All that the defendant can be charged with having done is, inciting the daughter to do that which in the exercise of her own free will she had an undoubted right to do. . . . BOVILL, C. J. The rule in this case was granted principally on the contention of the defendant's counsel that, in order to sustain the action, it was necessary to show that there was a binding contract of service between the father and the daughter. . . . No authority is to be found where it has been held that in an action for enticing away the plaintiff's daughter a binding contract of service must be alleged and proved. But there are abundant authorities to show the contrary. . . WILLES, J. I am of the same opinion. I cannot look at it as an anomaly to hold that the daughter was the servant of her father at the time the defendant by his enticement induced her to forbear from rendering to her father the services which were due to him from her. There is a series of cases in the books, of which that in the Year-Book of 11 Hen. IV, fol. 2, is probably the first, to show that this action is maintainable. This case was followed by a very remarkable one of M. 22 Hen. VI, fol. 30, in which that doctrine is fully recognized, and where service at will and service upon a retainer are put upon the same footing with regard to any complaint of being wrongfully deprived of their fruits, and it is pointed out that the writ at common law ran, "quare un tiel servientem meum in servitio meo existentem cepit et abduxit," without alleging any contract or retainer. That runs so completely with the earlier case, and also with the doctrine of Lord Denman in Sykes v. Dixon, and of Maule, J., in Hartley v. Cummings, and also with the observations of Bramwell, B., in Thompson v. Ross, that I feel no difficulty in holding that, upon authority, as well as in good sense, the father of a family, in respect of such service as his daughter renders him from her sense of duty and filial gratitude, stands in the same position as an ordinary master. If she is in his service, whether de son bon gre or sur retainer, he is equally entitled to her services, and to maintain an action against one who entices her away. Assuming that the service was at the will of both parties, like a tenancy at will, the relation must be put an end to in some way before the rights of the master under it can be lost. As a question of fact, was the daughter in the service of her father at the time the cause of action arose? Was the relation of master and servant put an end to by her quitting her father's house by means of the false pretence to which the defendant induced her to resort? . . . The conclusion I arrive at is, that it was a question for the jury whether at the time the daughter left her father's house there was an existing service de facto, and whether by the defendant's means and procurement that service was denied to the plaintiff. If both those questions were found against the defendant, the plaintiff was clearly entitled to the verdict. I think there was abundant evidence to support the finding, and that the rule must be discharged. 73. GRINNELL v. WELLS COMMON PLEAS. 1844 7 Man. & Gr. 1033 CASE, for the seduction of the plaintiff's daughter. The declaration stated that before and at the time of committing the grievances, and from thence until the time of the pregnancy and sickness, and of the plaintiff's expending the moneys and incurring the debts, thereinafter mentioned, Alice Grinnell, the daughter of the plaintiff, was a poor person who maintained herself by her labour and personal services, and, except by her labour and personal services, was not of sufficient ability to maintain herself, and was, during all that time, unmarried, and an infant under the age of twenty-one years, to wit, of the age of fourteen years, and at and during, and after the time of her pregnancy and sickness, as thereinafter mentioned, and of the plaintiff's expending the moneys, and incurring the debts, thereinafter mentioned, the said Alice was such poor person, infant, and unmarried and was not of sufficient ability to maintain herself: yet the defendant, well knowing the premises, but contriving to injure the plaintiff, and to compel him to maintain the said Alice, on the 27th of May, 1841, and on divers other days, &c., debauched and carnally knew the said Alice, whereby she became pregnant and sick with child, and so continued for a long time, to wit, for the space of nine months then next following, at the expiration whereof, to wit, &c., the said Alice was delivered of the child with which she was so pregnant as aforesaid; by means of which premises the said Alice, for a long time to wit, &c., became and was unable to work or to maintain herself, which she might, and otherwise would, have done; and the plaintiff, so being her father, and being of sufficient ability to maintain the said Alice, was, by means of the premises, during all that time, forced and obliged to, and necessarily did, maintain the said Alice at his own charges; and also by means of the premises, the plaintiff was obliged to, and did necessarily, pay, lay out and expend divers moneys, and incur divers debts, in the whole amounting to 50%., in and about maintaining, nursing, taking care of, and curing the said Alice, and in and about her delivery, during the time she was so unable to maintain herself as aforesaid. Wherefore the plaintiff saith that he is injured and hath damages to the value of 500., &c. Plea not guilty; whereupon issue was joined. The cause was first tried before Erskine, J., at the spring assizes at Gloucester in 1843, when a verdict was found for the plaintiff, damages 300l. In the following term a rule nisi was obtained for a new trial on the ground of excessive damages, the declaration only pointing to expenses actually incurred by the plaintiff in his daughter's maintenance and cure, and upon affidavits impugning the character of the principal witness; and also to arrest the judgment. In Trinity term the rule was made absolute for a new trial on payment of costs, the defendant agreeing that any damages to be assessed on the second trial might be estimated agreeably to the principles applicable to ordinary actions for seduction. At the second trial, which took place before Williams, J., at the Gloucester Summer Assizes, 1843, the jury again found a verdict for the plaintiff, damages 2007. Talfourd, Serjt., (with whom was Greaves,) in Michaelmas term, 1843, moved in arrest of judgment. The declaration discloses no legal ground of action. This is not an action brought in the ordinary form for seduction; but for an act of incontinence committed by third persons, from which act damage is alleged to have arisen to the plaintiff. In Satterthwaite v. Dewhurst, 4 Dougl. 315,' the Court, upon a motion to arrest the judgment, held that the action would not lie unless it were laid with a per quod servitium amisit. The relation of master and servant has always been held a necessary ingredient in such an action. Formerly, parties declared in trespass, per quod servitium amisit; and a count for debauching the plaintiff's daughter might be joined with a count for breaking and entering the plaintiff's house; Woodward v. Walton, 2 N. R. 476. Now, however, it is, perhaps more properly, considered as an action upon the case; but it is agreed that the mere relation of parent and child without some service, does not give the father a remedy against the seducer of his daughter; . . The common law imputes no obligation on a parent to support his child; Mortimore v. Wright, 6 M. & W. 482. The 43 Eliz. c. 2, s. 7, provides "that the father and grandfather, and the mother and grandmother, and the children, of every poor, old, blind, lame, and impotent person, or other poor person not able to work, being of a sufficient ability, shall, at their own charges, relieve and maintain every such poor person, in that manner and according to that rate as by the justices of peace of, &c., shall be assessed, upon pain that every one of them shall forfeit 20s. for every month which they fail therein." But all the circumstances which constitute the breach of duty, must appear upon the record; . . . Sir T. Wilde, Serjt., (with whom were Channell, Serjt., and Godson,) in Easter term last, showed cause. . . . The father, if of ability, is, by the statute 43 Eliz. c. 2, s. 7, bound to maintain his poor child. It would seem to mark a very defective state of society, that a legislative provision should be required for the purpose of enforcing an obligation so sacred; but the statute of Elizabeth is not directed so much to the relation of 1 Shortly reported per nomen Saterthwaite v. Duerst, 5 East, 47 n. J parent and child as to relieve third persons from the obligation of providing for a party whose relations were of ability to support him. The parent might leave the burden of supporting his child to the parish, if he knew that the child must be provided for, with or without any exertion on his part. If a moral obligation is capable of being enforced by legal means, the party is not bound to wait until he is actually coerced; Blyth v. Smith, 6 Scott, N. R. 360. . . . In Hall v. Hollander, power in the father to command the services of the child, and capacity in the child to perform the services when required, were held to be sufficient. ... TINDAL, C. J., now delivered the judgment of the Court. The question in this case arises upon a motion in arrest of judgment, and is this —whether a father can maintain an action upon the case for the seduction of his daughter, where he is unable to allege in the declaration the loss of her service by reason of the defendant's wrongful act. The declaration in this case contains no allegation of the loss of the service of the daughter, but, instead thereof, alleges that the daughter was a poor person, maintaining herself by her labour and personal services, and not of sufficient ability to maintain herself otherwise; and, after stating that the defendant debauched her, and that she was delivered of a child, and her thereby becoming unable to work or maintain herself, alleges, as the gravamen of the plaintiff, that he, being her father, and being of sufficient ability to maintain his said daughter, was, by means of the premises, forced and obliged to, and necessarily did, maintain his said daughter, at his own charges, and did necessarily pay large divers money, and incur divers debts in and about the maintaining and nursing, &c., of his said daughter, during the time she was unable to maintain herself. And the question arises whether the want of the allegation of the loss of service is supplied by the substitution of the before-recited allegation. The foundation of the action by a father to recover damages against the wrongdoer for the seduction of his daughter, has been uniformly placed, from the earliest time hitherto, not upon the seduction itself, which is the wrongful act of the defendant, but upon the loss of service of the daughter, in which service he is supposed to have a legal right or interest. Such is the language of Lord Holt in Russell v. Corne, and such the opinion of the Court in the earlier case of Gray v. Jefferies, with reference to an action by a father for a personal injury to a child, which stands precisely on the same footing. See also Randle v. Deane, 2 Lutw. 1497. It has, therefore, always been held that the loss of service must be proved at the trial, or the plaintiff must fail. See Bennett v. Alcott. It is the invasion of the legal right of the master to the services of his servant, that gives him the right of action for beating his servant; and it is the invasion of the same legal right, and no other, which gives the father the right of action against the seducer of his daughter. This distinction is most clearly and pointedly put by the Court in Robert Mary's case, where it is said, "If my servant be beaten, the master shall not have an action for this beating, unless the battery is so great that by reason thereof he loses the service of his servant; but the servant himself for every small battery shall have an action; and the reason of the difference is, that the master has not any damage by the personal beating of his servant, but by reason of a per quod, viz., per quod servitium. amisit; so that the original act is not the cause of his action, but the consequent upon it, viz., the loss of the service, is the cause of his action." No precedent in an action for seduction has been brought before us (except those in Harris v. Butler and Blaymire v. Hayley, in both of which cases the declarations were held bad), in which there has not been an allegation of the loss of service to the father: and the struggle has always been at the trial, to give some proof either of actual service or of the implied relation of master and servant. . . . Many observations suggest themselves against the soundness of the argument upon which the plaintiff relies. In the first place, if the liability to support the daughter under the statute of Elizabeth, would form a ground of action, per se, independently of any service, it would seem scarcely credible, as that statute was passed long before any of the cases above referred to, that the difficulty of proof of service, either actual or implied, which has occurred in so many cases, should not have been avoided and answered by framing the declaration, like the present, upon the legal liability of the father to maintain his daughter under the statute. In the next place, if this ground of action is available in the case of seduction of a daughter, it is equally so in the case of every beating of a son, whether his service be lost or not; and, upon this supposition, the beating of a son, at whatever advanced age, and although altogether emancipated from his father's family, would form a ground of action at the suit of the father, if called upon under the statute, to maintain his son. We therefore think, for the reasons above given, the cause of action, as stated on this record, is insufficient, and that the rule for arresting the judgment must be made absolute. Rule absolute. ACTION for the seduction of Amelia Andrews, the daughter of the plaintiff, per quod servitium amisit. The plaintiff was a widow, carrying on the business of a fruiterer in the Borough-market, Southwark, and the defendant was in the same line of business, at a stall in the same market. The principal witness was 'Amelia Andrews herself, who stated that the intercourse between the defendant and her commenced in August, 1835, and continued to the |