guardian in socage was also entitled at common law to a writ of right of ward, de custodia terrae et haeredis, in order to recover the possession and custody of the infant, (i) so I apprehend that he is still entitled to sue out this antiquated right. But a more speedy and summary method of redressing all complaints relative to wards and guardians hath of late obtained by an application to the court of chancery; which is the supreme guardian, and has the superintendent jurisdiction of all the infants in the kingdom. And

it is expressly provided by statute 12 Car. II. c. 24. that testamen. [142] tary guardians may maintain an action of ravishment or trespass,

for recovery of any of their wards, and also for damages to be ap. plied to the use and benefit of the infants. (k)

IV. To the relation between master and servant, and the rights accruing therefrom, there are two species of injuries incident. The one is, retain. ing a man's hired servant before his time is expired; the other is beating or confining him in such a manner that he is not able to perform his work. As to the first, the retaining another person's servant during the time he has agreed to serve his present master; this, as it is an ungentlemanlike, so it is also an illegal act. For every master has by his contract purchased for a valuable consideration the service of his domestics for a limited time: the inveigling or hiring his servant, which induces a breach of this contract, is therefore an injury to the master; and for that injury the law has given him a remedy by a special action on the case: and he may also have an action against the servant for the non-performance of his agreement. (7) But, if the new master was not apprized of the former contract, no action lies against him, (m) unless he refuses to restore the servant, upon demand." The other point of injury, is that of beating, confining, or disabling a man's servant, which depends upon the same principle as the last; viz. the property which the master has by his contract acquired in the labour of the servant. In this case, besides the remedy of an action of battery or imprisonment, which the servant himself as an individual may have against the aggressor, the master also, as a recompense for his immediate loss, may maintain an action of trespass vi et armis; in which we must allege and prove the special damage he has sustained by the beating of his servant, per quod servitium amisit; (n) and then the jury will make him a proportionable pecuniary satisfaction. 31 A similar practice to which, we find

i F. N. B. 139.

k 2 P. Wms. 108.
n 9 Rep. 113.

1 F. N. B. 167. 10 Rep. 330.

m Ibid. Winch. 51.

(30) But an action lies for receiving or continuing to employ the servant of another, after the second master has a notice that he is the servant of another, though he was apprized of that cir cumstance when he hired him. 6 T. R. 221.

(31) Even in case of debauching, beating, or injuring a child, the father cannot sue without alleging and proving that he sustained some loss of service, or at least that he was obliged to incur expenses in endeavouring to cure his child. 5 East, 45. 6 East, $91. 11 East, 23. Sir T. Raym. 259. And if it appear in evidence that the child was of such tender years as to be incapable of affording any assistance, then he cannot sustain any action. The rules and principles in support of this doctrine were elucidated in the recent case of Hall v. Hollander, decided 14th November, 1825, M. T., and in which the plaintiff declared in trespass, for driving a chase on the highway against plaintiff's son and servant, by means whereof he was thrown down, and his skull fractured, and thereby plaintiff lost and was deprived of his services, and was obliged to expend the sum of fifty pounds in endeavouring to cure, &c. and was obliged, in consequence of his poverty and inability, to procure surgical aid, attendance, and assistance for his said son and servant at his own residence, to carry and convey him elsewhere to a place where he could obtain the same. Piea, not guilty, and issue thereon.

At the trial before Abbott, C. J., at the Middlesex sittings after Trinity Term, 6 Geo, IV., it appeared in evidence, that the plaintiff's son, who was an infant of the tender age of two years, was accidentally run over by the defendant who was driving in a single horse chasie along the public streets of London. The child's head being fractured, he was immediately taken to the

also to have obtained among the Athenians; where masters were entitled to an action against such as beat or ill-treated their servants. (o)

o Pott. Antiq. b. 1. c. 26.

32

shop of a neighbouring surgeon, who after dressing the wound, advised that he should be immediately conveyed to Middlesex hospital, which was done accordingly. The child remained there about twelve days, when the plaintiff, who was a poor man, took him home to his own house, but continued afterwards to attend with him daily at the hospital, for a period of four months, when he was discharged as cured. The plaintiff, in addition to the loss of the child's services, sought to recover the amount of expenses which he had incurred, of eighteen pence per week, for a certain number of weeks, in employing a girl to nurse the child, and also a compensation for his own loss of time, in going backwards and forwards with the child to the hospital. The lord chief justice was of opinion that the action could not be maintained in this form, inasmuch as the declaration was founded upon the loss of the services of a child who, from his tender years, was inca pable of performing any acts of service, and therefore directed a nonsuit.

E. Lawes, in the following term, moved for a rule nisi to set aside the nonsuit, and to obtain a new trial, on the grounds; first, that it was not necessary to prove an actual loss of services in order to maintain the action, where the relation of parent and child existed; and second, that as the plaintiff bad necessarily incurred expenses, in and about the curing of the child of the injury he had sustained, such expenses were recoverable in this action. As to the first point he said, it is true, that the child is described in all the courts as the plaintiff's son and servant, and the loss of his services is averred to be the gist of the action; but still the latter is merely a tech nical allegation, and does not require strict proof, where the relation of parent and child subsists. This case is distinguishable from that where a master seeks to recover a compensation in damages for the loss of the services of a menial servant, in which case, undoubtedly, it is necessary to give proof of an actual loss of services. Where, however, the relation of parent and child subsists, although in technical language the child is described as the servant of the parent, yet the slightest evidence is sufficient to support the action. In Fores v. Wilson, Peake R. 55. lord Kenyon said that" though a degree of the relation of master and servant must subsist, yet a very slight relation is sufficient, as it has been determined, that when the daughters of the highest and most opulent families have been seduced, the parent may maintain an action on the supposed relation of master and servant, though every one must know that such a child cannot be treated as a menial servant." So also in Jones v. Brown, Peake R. R. 235. 1 Esp. R. 217. which was an action of trespass for an assault on the plaintiff's son and servant per quod servitium amisit, it be came a question whether it was necessary for the plaintiff to shew in evidence that his son, who was a lad fourteen or fifteen years of age, did in point of fact do any service for his father in his business, pursuant to the allegation in the declaration to that effect? and Lord Kenyon ruled, that it was sufficient to shew that the son lived in, and was part of, his father's family, and that alone would raise a service by implication, which was sufficient to support that allegation, and to maintain the action. (Bayley J. In that case, the lad was capable of doing some acts of service for his father; but here, this infant, from his tender years, was utterly incapable of performing any acts of service.) But proof of capacity to perform the most trifling act of service is sufficient to sustain the allegation per quod, &c. Now a child, even at the tender age of two years, is ca pable of doing many little acts of service, which, though trifling and unimportant, yet are enough to make out that which is a mere technical allegation. (Bayley, J. But did you desire the question to be left to the jury, whether this child was capable of performing any actual service?) Certainly not, as the case went off upon the intimation of the learned judge's opinion, that an action per quod servitium amisit, would not lie where the child was of such a tender age. In cases of this kind, the damages are given, not with reference to the loss of any real services performed by the child, but juries look to the substantial injury which a parent has sustained, in being deprived of the domestic comfort which he derives from his children. The child is supposed, in the eye of the law, to be the servant of the parent, on the ground of the parental dominion and control which he has a right to exercise over it. Actual service, or menial drudgery, does not enter into the principle on which the parent's right of action is founded. Secondly, assuming that no loss of service was actually sustained, still in this case the plaintiff is entitled to recover the amount of the expenses which he has necessarily incurred in having the child cured of the injury which has been induced by the defendant. (Bayley, J. The facts of this case will not support that argument. It appears that the child was carried to an hospital, and after remaining there for some time, the father desired to have him home to his own house. If the father had necessarily incurred expense in procuring medical assistance for the child, that might be a substantive foundation for maintaining the action, (vide Hunt v. Wotton, Sir T. Raym. 259.); but if, instead of allowing the child to remain in the hospital, where he would have been well supplied

(32) It appears, to be a remarkable omission in the law of England, which with such scrupulous solicitude guards the rights of individuals, and secures the morals and good order of the community, that it should have afforded so little protection to female chastity. It is true that it has defended it by the punishment of death from force and violence, but has left it exposed to perhaps greater danger from the artifices and solicitations of seduction. In no case whatever, unless she has had a promise of marriage, can a woman herself obtain any reparation for the injury

We may observe that in these relative injuries, notice is only [143] taken of the wrong done to the superior of the parties related, by

with medicines and proper attendance, free of expense, the special injury or damages is wilfully incurred by the plaintiff, that ground of action fails.

Abbott, C. J. I take the principle of the common law, in cases of this kind, to be, that the action for an injury to a child is only maintainable when the child was capable of performing some acts of service. Wherever that principle can be established, though in fact the relation of master and servant cannot be proved in evidence, yet the capacity to perform service must be taken into consideration. We are now called upon to go a step farther, and to lay down, that the action can be maintained where the relation of master and servant, not only does not exist, but cannot by possibility exist, on account of the tender age of the child; and that where the ground of action is described in the declaration to be loss of services, no evidence is necessary to support such an averment. That would be going farther than the law will allow us; and therefore I am of opinion that the action cannot be maintained.

Bayley, J. I think the nonsuit in this case was right. Two grounds are suggested, on which the action is supposed to be maintainable; first, that this child, being the son of the plaintiff, it must be assumed that the father has lost his services; and second, that the father, has necessarily incurred expense in curing the child of the injury which he sustained. As to the first ground, I apprehend that the gist of this species of action consists in proof, that the child had either actually performed service, or was at least capable of performing and actually doing acts of service for its father. I understand that the counsel for the plaintiff in this case did not desire that the power of the child to perform acts of service, should be put to the jury as a question of fact, but it was assumed, from the tender age of the child, that he was perfectly incapable of performing any acts of service, and the proof upon that point seems to have been all one way. The case cited in argument (Jones v. Brown), was one in which the lad was of capacity to perform acts of service for his father, and therefore it was reasonably presumed that the relation of master and servant subsisted. Lord Kenyon there said, it was unnecessary to prove that the lad had performed those acts of

she has sustained from the seducer of her virtue. And even where her weakness and credulity have been imposed upon by the most solemn promises of marriage, unless they have been overheard or made in writing, she cannot recover any compensation, being incapable of giving evidence in her own cause. Nor can a parent maintain any action in the temporal courts against the person who has done this wrong to his family, and to his honour and happiness, but by stat ing and proving, that from the consequences of the seduction his daughter is less able to assist him as a servant, or that the seducer in the pursuit of his daughter was a trespasser upon his premises. Hence no action can be maintained for the seduction of a daughter, which is not attended with a loss of service or an injury to property. Therefore, in that action for seduction which is in most general use, viz. a per quod servitium amisit, the father must prove that his daughter, when seduced, actually assisted in some degree, however inconsiderable, in the housewifery of his family; and that she has been rendered less serviceable to him by her pregnancy; or the action would probably be sustained upon the evidence of a consumption or any other disorder, contracted by the daughter, in consequence of her seduction, or of her shame and sorrow for the violation of her honour. It is immaterial what is the age of the daughter, but it is necessary that at the time of the seduction she should be living in, or be considered part of, her father's family. 4 Burr. 1878. S Wils. 18. And Mr. J. Wilson, in a case upon the northern circuit, was of opinion, that a young woman, who was upon a visit at a relation's house, and was there seduced, might be considered, in support of this action, as in the service of her father, or as part of his family. But it has been decided that this action cannot be maintained by the father, if at the time of the seduction she is living in another family, and has no intention to return to her father's house, although she is under the age of twenty-one. 5 East, 45. In this action, as the daughter does not necessarily receive any part of the damages recovered, she is a competent witness, and is generally produced to prove the fact of the seduction. But in such cases, as in actions for adultery, the damages are estimated from the rank and situation of the parent, or from the degree of affliction which, under all the circumstances, he may be supposed to suffer. It should seem that this action may be brought by a grandfather, brother, uncle, aunt, or any relation under the protection of whom, in loco parentis, a woman resides; especially if the case be such that she can bring no action herself; but the courts would not permit a person to be punished twice by exemplary damages for the same injury. 2 T. R. 4.

Another action for seduction is a common action for trespass, which may be brought when the seducer has illegally entered the father's house; in which action the debauching his daughter may be stated and proved as an aggravation of the trespass. 2 T. R. 166. Or where the seducer carries off the daughter from the father's house, an action might be brought for enticing away his servant, though I have never known an instance of an action of this nature.

In the two last-mentioned actions the seduction may be proved, though it may not have been followed by the consequences of pregnancy.

These are the only actions which have been extended by the modern ingenuity of the courts, to enable an unhappy parent to recover a recompense, under certain circumstances, for the injury he has sustained by the seduction of his daughter.—Mr. Christian's note,

the breach and dissolution of either the relation itself, or at least the advantages accruing thereform: while the loss of the inferior by such injuries is totally unregarded. One reason for which may be this: that the inferior hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior; and therefore the inferior can suffer no loss or injury. The wife cannot recover damages for beating her husband, for she hath no separate interest in any thing during her coverture. The child hath no property in his father or service, which a youth, living with his parent, would be required from time to time to perform for his father, it being within his power and capacity to do some acts of service, which, though unimportant, would be sufficient to sustain the action. This case stands upon the same principle upon which an action lies for debauching the plaintiff's daughter. It is clear that no such action can be maintained unless some evidence be given of acts performed by the daughter. Very slight evidence is no doubt sufficient, but still it is necessary to give some. In the cases cited from Peake's Reports, I take it that my lord Kenyon did not decide, that in a case where the child appeared to be incapable of performing acts of service, such an action could be maintained. All that I collect from those cases is, that where the child living with its parent was in a condition to perform actual service, that learned judge would not require strict proof of specific acts of service. I remember in one case of this kind, very slight evidence was held sufficient, such, for instance, as the fact of milking cows, or making tea for the farmer. In the case of Saterthwaite v. Duerst, 5 East, 47. which, I believe, was decided in the interval between Douglas's Reports, and the Term Reports, it was decided, first, that the action would not lie unless the daughter was the father's servant, for the loss of service is the gist of the action; and secondly, that it was no ground for maintaining the action, that the father (being of sufficient ability to maintain his daughter) had been at the expense incurred during the time of her lying in. If then the cases I allude to, shew that the gist of the action is the loss of service, then, though the relation of parent and child exists, yet, if the child is incapable of performing any acts of service, the foundation of the action fails. Secondly, assuming that an action could be maintained on the ground that the father had necessarily incurred the expense of curing the child of his bodily sufferings, still, upon the evidence here, the child was carried to the hospital, where she would have been at no expense to the father, and any expense entailed upon him, has been incurred by his own voluntary act, in taking the child home. I am certainly not prepared to say, that even if a declaration were frained, averring that the father, being under an obligation to maintain the child, had necessarily incurred the expense of curing him, and evidence were given that such expense was necessarily and reasonably incurred, the action would lie, (but see sir T. Raym. 259.) It is, however, unnecessary to decide that question in the present case one way or the other, because it does not appear to me that the father did necessarily incur any such expense, and that the expense which he did incur was wilfully incurred, and therefore the defendant would not be liable. Holroyd, J. I am of opinion that the second point on which it is contended this action is maintainable, is not established by the evidence. Possibly it might be a ground of action, if it could be shown that the father had been necessarily put to the expense of curing the child of the injury he had received, without regard to the question of service or no service, but I do not think requisite to give any decided opinion upon that point. The foundation of this action is the loss of service, and I take it to be perfectly clear, that in the case of an action for taking away a son or a daughter from a parent, unless indeed (according to the old books) it is the case of a son and heir, the action does not lie, unless there is a loss of service sustained, or what the law considers a loss of service. The mere relationship of parent and child, although the child lives with his father, is not alone suflicient to constitute the character of servant without proof of actual service or a capacity to serve. This principle seems to have been adopted in Gray v. Jefferies, Cro. Eliz. 55. and Barham v. Dennis, Cro. Eliz. 760. In the latter case, an action was brought for making an assault upon the plaintiff's daughter, taking her away, and imprisoning her, and there it was held that the action would not lie; and yet it is clear, that if she was to be considered as in her father's service, in the character of servant, there would then be a loss of her services, and the action would have been maintainable on that ground; but three of the judges held that the action was not given to the father, but to the daughter herself. In that case Glanville, J. was of a different opinion, and said, "that the father had an interest in every of his children, to educate them, and he hath his comfort by them; wherefore it is not reasonable that any should take them from him, and to do him such an injury, but that he should have his remedy to punish it." The other judges, however, were of opinion that there was no sufficient ground to maintain the action, and the reasoning on which they founded their decision, goes to shew that the injury was only to the daughter; and they seemed to consider that there should have been an allegation in the declaration, that she was the servant of the plaintiff, and some evidence of the loss of service, so as to maintain au action at the suit of the father. Here the mere relation of child and parent, is not, in my opinion, sufficient to sustain the action, for it was necessary to prove either an actual service, or a capacity to serve, as well as to allege, that the child was the servant of the plaintiff. As, however, the relation of servant did not exist, or was capable of existing, I am of opinion that the nonsuit was right. It is presumed this case will be reported in 6 Dow. & Ryl. Rep, Chitty 16

VOL. II.

guardian; as they have in him, for the sake of giving him education and nurture. Yet the wife or the child, if the husband or parent be slain, have a pecuilar species of criminal prosecution allowed hem, in the nature of a civil satisfaction; which is called an appeal, and which will be considered in the next book. And so the servant, whose master is disabled, does not thereby lose his maintenance or wages. He had no property in his master; and if he receives his part of the stipulated contract, he suffers no injury, and is therefore entitled to no action, for any battery or imprisonment which such master may happen to endure.

CHAP. IX.

OF INJURIES TO PERSONAL PROPERTY.

In the preceding chapter we considered the wrongs or injuries that af fected the rights of persons, either considered as individuals, or as related to each other; and are at present to enter upon the discussion of such injuries as affect the rights of property, together with the remedies which the law has given to repair or redress them.

And here again we must follow our former division (a) of property into personal and real personal, which consists in goods, money, and all other moveable chattels, and things thereunto incident; a property which may attend a man's person wherever he goes, and from thence receives its denomination: and real property, which consists of such things as are per. manent, fixed, and immoveable: as lands, tenements, and hereditaments of all kinds, which are not annexed to the person, nor cannot be moved from the place in which they subsist.

[145] First then we are to consider the injuries that may be offered to the rights of personal property; and, of these, first the rights of personal property in possession, and then those that are in action only. (b) I. The rights of personal property in possession, are liable to two species of injuries: the amotion or deprivation of that possession; and the abuse or damage of the chattels, while the possession continues in the legal owner. The former, or deprivation of possession, is also divisible into two branches; the unjust and unlawful taking them away; and the unjust detaining them, though the original taking might be lawful.

1. And first of an unlawful taking. The right of property in all external things being solely acquired by occupancy, as has been formerly stated, and preserved and transferred by grants, deeds, and wills, which are a continuation of that occupancy; it follows as a necessary consequence, that when I have once gained a rightful possession of any goods or chattels, either by a just occupancy or by a legal transfer, whoever either by fraud or force dispossesses me of them, is guilty of a trangression against the law of society, which is a kind of secondary law of nature. For there must. be an end of all social commerce between man and man, unless private