#### LEWIS BRIGGS vs. JOHN J. EVANS.

A father can maintain either an action on the case or an action of trespass for the seduction of his daughter, living with him or being under his control.

Nor, where pregnancy is a consequence of the seduction, is it necessary for the father to wait till the birth of the child, to entitle him to fall damages.

. An actual contract for services between the father and his daughter, though she be of age, is not required to be proved. It is presumed from any the slightest services rendered by her in the family.

The action rests upon the assumed relation of master and servant, and not upon that of father and child.

Appeal from the Superior Court of Law of Yaney County, at the Fall Term, 1844, his Honor Judge Battle presiding.

This was an action on the case for the seduction of the plaintiff’s daughter. For the plaintiff it was proved by his daughter, that she was seduced by the defendant some time in the month of September, 1841 — that pregnancy was the consequence of this seduction, and, that on the 11th day of the following June, she bore a child — that, at the time of the seduction, she was living with her father and performing ser*17vice in his family, and continued to do so, until the March following, when she left her father’s house and went to live with her grandmother — that she remained with her grandmtoher until sometime after the birth of her child, when she returned to live in her father’s family — that, about five or six weeks after s'he became pfegnání, her health was somewhat impaired in consequence thereof, and she became less able to perforrfi the services usually required of her — and that/just before she left her father’s family, she became altogether unable to discharge some of these services, though the lighter ones, such ds knitting, &c. she Could perform as well as usual; She fuf-ther testified, that she became twenty-one years of age in the month of November, 1841. The writ was issued the 31st of March, 1842.

The court insttucled the jury, that, before the daughter bá-tame of age, the action might be sustained by the fathef in his paternal character for the loss of the services of the daugh-tér, and that, after she became of full age, it must be sustained in the character of master for the loss of the services of his servant — that in this action the loss of some service must be proved, in order to entitle the plaintiff to recover anydam-ages at all, but if the evidence satisfied them of the loss of any services of the daughter, as daughter or servant, in consequence of the defendant’s act of seduction/ then they might take into their consideration the anguish and disgrace brought upon the plaintiff and his family, in order to enhance the damages.

The jury found a verdict for the plaintiff. The defendant moved for a new trial, 1st. Because the action ought to have been trespass vi and armis, and not case ; 2ndly. Because the action could not be maintained before the birth of the child; 8dly. Because the action could not be maintained without proof of an actual contract for services after the daughter be. Came of age. The court over-ruled all the objections, because it deemed them unfounded iu law, and the last for the additional reason, that it had not been so contended for in the ar*18gument of the defendant’s counsel, and no specific instructions *-° e^ec*; had been prayed.

Judgment being rendered for the plaintiff, the defendant ap-pea|e(j £o the Supreme Court.

Francis for the plaintiff.

The judge was right in each of the positions, to which the defendant excepted :

I. The form of action was proper. Where the injury complained of forms the subject of an action of trespass, and there is also a consequential damage, either' case or trespass may be brought at the option of the plaintiff. 2 Stephen N. P. 1005. Hence in cases of seduction and critn. con. the plaintiffs have sometimes declared for the original act of wrong as a trespass, alleging the loss of service or society under a per quoad, and sometimes in case for .the consequential damages resulting from the act of wrong, as the injury complained of. In Woodward v.Walton, 2 Bos; & Pul. N. R. 476, and Tullidge v.yVade, 3 Wils. 18, the form- of action was trespass. In Dean v. Peel, 5 East 45: Irwin V. Dearborn, 11 East 23. Weedon v. Timbrell, 5 T. R. 357, dictum of Grose, J. Speight v. Oliveira, 2 Stark. R. 435, per Abbott, Ch. 3. Holloway v. Abell, 32 Eng. C. L. R. 615. Terry v. Watkins, idem. 520. Hewitt v. Prime, 2.1 Wen. R. 79, and Mastín v. Payne, 9 John. R. 387, the plaintiff declared in case. And although both forms of declaring were supported, yet there is no conflict between the cases. They are founded upon and reconcilable by the position before stated, that the plaintiff may, at his election, bring either action. That he may do this, is expressly held by the Supreme Court of New York, Morans. Dawes, 4 Cow. R. 412, and by the House of Lords, Chamberlain v. Hazelwood, 7 Dowl. P. C. cited in 2 Steph. N. P. 1006. 3 Step. N. P. 2353. So are the opinions of the text writers and the forms given by them. Tide Step. N. P. ut supra. 1 Chitty’s PI. 134. 2 Chitty’s PI. 641; and note (d.) 643; note (g.) 850.

II. The action was properly brought before- the daughter’s confinement. 3- Steph. N. P. 2353. Joseph v. Cavander, *19RoscoeEv. 483. Stiles v. Tilford, 10 Wen. R. 338.

III. A contract by the daughter to serve the plaintiff was not necessary to be proved, in order to support the action, although the daughter was of full age at the time of theseduction. It was sufficient that she lived with her father as a member of his family, and rendered actual services, however small and unimportant. Tullidge v. Wade, %it supra. Bennet v. Allcott, 2 T. R. 166. Moran v. Dawes, ut supra. See also, Mastín v. Payne, ut supra, and Nicldeson v. Stryker, 10 John. R. 115.

No counsel for the defendant in this court

Nash, J.

Three objections were urged before the Superior Court. The_/w\sji, because the action ought to have been trespass and not case; the second, because the action could not be sustained, before the birth of the child; and thirdly, because the action could not be sustained without proof of an actual contract for services, after the daughter became of age. These objections were over-ruled by the-presiding Judge, and we think very properly.

It is unnecessary to point out the distinguishing marks between the actions of trespass and case, and the necessity, in ordinary cases, of adopting the form of action appropriated to the cause of complaint. It is admitted by text writers, and decided in many cases, that the plaintiff, in an action for seduction, may adopt either form at his option. He may either bring trespass for the direct injury, laying it with a per quod servilium amisit, or in case for the consequential damage. 3 Stephens, N. P. 2351, 2354. That trespass may be brought, is shewn by the cases of Woodward v. Walton, 2 N. R. 476. Tulledge v Wade, 3 Wilson, 18 — and that case may, by Dean v. Peel, 3 East 43, Heavitt v. Prime, 21 Wend. 79. Martin v. Payne, 9 Johns. Rep. 387. Speight v. Olivera, 3 Stark. 435, by Abbott, Chief Justice. Holloway v. Abell, 32 Eng. Com. L. R. 615, and hy many other cases. In Chamberlain v. Hazelwood, 7 Dow. Par. cases, cited in the 3d vol. of Stephens’ N. P. 2353, Mr. Baron Parker declares, that, al*20though there may have been no direct adjudication on the subject, it had been the constant practice with pleaders to de-dare in either way. These authorities abundantly shew, that the action was properly brought in case.

The second exception is equally as untenable as the first. It assumes that the only consequential injury to the father, of which he has a right to complain, consists in the loss of the services of his daughter and the expenses he may incur during her confinement. This certainly is not so. If it were so, and pregnancy did not result from the seduction, the father would have no action. All the authorities shew that the relation of master and servant between the parent and the child is but a figment of the law, to open to him the door for the redress of his injury. It is the substratum, on which the action is built. The actual damage, which he has sustained, in juany, if not most cases, exists only in the humanity of the law, which seeks to vindicate his outraged feelings. He comes into the court as a master — he goes before the jury as a father./ He must indeed shew that his child stood to him in the rela-/ tion of a servant; and it matter's not how trivial the services she rendered — though it may have consisted but in pouringj out his tea he is entitled to his action. Carr v. Clark, 2 Chitty 261. Mann v. Barrett, 6 Esp. 23. So it has been decided that the father need not shew any actual service rendered, if, át the time of the seduction she lives with her father or is under his control. Maunder v. Nun, M. & M. 323, cited 3 Stephens, N. P. Mann v. Barrett and Holloway v. Abell. Upon this objection, however, there is an express au-> thority, that the father can maintain the action before the con.-finement of his daughter, even though he has turned her out of doors, per Lord Denman in Joseph v. Cowen, cited 2 Steph. N. P. 2354, and Roscoe on Evid. 493. Both then upon authority and reason, the objection cannot be sustained.

So neither can the third. In no case is an actual contract between the father and the daughter necessary to maintain the action. Before the child attains the age of twenty-one years, the law gives the father dominion over her, and, after. *21the law presumes the contract, when the daughter is so sitúa-ted, as to render services to the father, or is under his control; and this it does for the wisest and most benevolent of purposes, to preserve his domestic peace, by guarding from the spoiler the purity and innocence of his child. If this were not so, in those cases, where the degradation would carry the largest portion of anguish and distress, the unfortunate parent would be without redress, if his daughter were over twenty-one years of age. That the law is not as the defendant contends, is shewn by many of the cases cited upon the other points. To these may be added, Bennet v. Alcot, 2 Term R. 166. Nicholson v. Stryker, 10 Johns. Rep. 115, and Moran v. Dawes, 4 Cow. 417. In this case the daughter lived in her father’s house at the time of the seduction, under his control and in the performance of actual services.

Here this opinion might be closed, bu,t for another part of the charge. The presiding Judge told the jury, that, before the daughter came of age, the action might be sustained in his paternal character for the loss of her services, and, after ?he became of full age, it might be sustained by him as master, for services lost. The distinction is new to us. We have been able to find no case in which it is recognized. On the contrary, the whole history of the action clearly shews, that it rests upon the assumed or actual relation of master and servant, and that, as well before the daughter has attained twen-: ty-one as after. We notice this part of the charge, not because it at all enters into the decision of this case, as presented to us by the parties, but because we are not willing it should be supposed we acquiesce in its correctness. The defendant did not except to it, and in the case of King v Ring, 4 Dev. & Bat. 168, the court say, “ the rule of this court is, to regard, as nearly as we can, the case made by the Judge in the light of a bill of exceptions for specified errors ,” and none others are considered here, unless they appear upon the record strictly so called. The only way, in which it could have been important in this case, was as it might have affected the damages ; and the defendant’s not excepting is strong evidence that it did not affect him injuriously,

*22We see no error in the opinion of the presiding Judge in the points excepted to.

Pee Curiam, Judgment affirmed.