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of war was holden not to be responsible for the damage done to another vessel, through the negligence of his lieutenant", who was upon deck, and had the actual direction and management of the steering and navigating of the ship at the time, and when the captain was not upon deck, nor was called upon by his duty to be there.

IV. Of Actions brought by Masters for enticing away Ap

prentices and Servants, and for Injuries done to their Servants; and herein of the Action for Seduction Witness-Damages.

An action on the case may be maintained by a master against any person who entices away his apprentice or servant from his services, or who continues to employ such servant after notice, though the defendant did not procure the servant to leave his master, or know when he employed him, that he was the servant of anothert. But the master may, if he chooses, wave his action for the tort“; and bring an action of indebitatus assumpsit for work and labour done by his apprentice, against the person who tortiously employed him. So the captain of a ship of war detaining an apprentice who had been impressed, after verbal notice by such apprentice of his condition, is liable in an action by the master for wages for the service of the appprentice* But the prize money gained by an apprentice serving on board a letter of marque ship, does not belong to the master, the usage being proved that such money is the property of the apprentice.

It is not material whether the apprentice be legally apprenticed or not; it is sufficient if he be so de factoz.

It has been holden”, that a master cannot maintain an action for seducing his servant, after his servant has paid him the penalty stipulated by his articles for leaving him. Neither can an action be maintained for harbouring an apprentice as such, if the master to whom he was bound was then not an housekeeper, and of the age of twenty-four years b.

r Nicholson v. Mounsey, 15 East, 384. y Carsan v. Watts, 3 Doug. 350. s Adm. per. cur. in Q. v. Daniel, 6 2 Barber v. Dennis, Salk. 68 6 Mod. Mod. 182.

69, S. C. recognized by Lord Hardt Blake v. Lanyon, 6 T. R. 221.

wicke, C. J. in R. v. St. Nicholas, 1 u Lightly v. Clouston, 1 Taunt. 112. Burr. S. C. 94, 95.

See also Foster v. Stewart, 3 M. & a Bird v. Randall, 3 Burr. 1345. 1 Bl. S. 191. S. P.

R. 387. * Eades v. Vandeput, M. 25 G. 3 B. R.

5 East, 39. n. 4 Doug. 1. S. C.

A master may maintain an action for an injury done to his servant, as false imprisonment, battery, &c. which deprives the master of his service. The form of action is an action of trespass, usually termed an action per quod servitium amisit, the gist of the action being the loss of service; and hence the servant may be a witness, for he is not interested as to the

point.

Of the Action for Seduction.

This form of action is frequently adopted by a parent for the purpose of obtaining a compensation in damages for debauching his daughter (3), and getting her with child, and the expenses attending the lying-in (4). As to the nature of the action, it has been solemnly decidedd, contrary to the opinion expressed by Buller, J., (see n. (3)) that this is an action of trespass, and not trespass on the case; and consequently that a count for breaking and entering the plaintiff's dwelling-house, and debauching his daughter, whereby he lost her service, may be joined in a count omitting the trespass to the dwelling-house, and merely stating that the

b Gye v. Felton, 4 Taunt. 876.
c Jewell v. Harding, T. 10 G. I Gilb.

Evid. 94. ed. 1761. 1 Str. 595. S. C.
by the name of Duelv. Harding.
Lewis v. Fog, 2 Str. 944. S. P.

d Woodward v. Walton, 2 N. R. 476.

recognized in Ditcham v. Bond, 2 M. & S. 436.

(3) If the injury of seduction is accompanied with an illegal entry of the house of the parent, he has his election either to bring trespass for breaking and entering, and lay the debauching of the daughter, and loss of her service, as consequential damages, or he may bring an action on the case for debauching his daughter, per quod servitium amisit.*

(4) A master, not standing in the relation of a parent, may maintain this action for debauching his servant. Fores v. Wilson, Peake's N. P. C. 55. In like manner it may be maintained, for the seduction of an adopted child. Irwin v. Dearman, 11 East. 23.

* Per Buller, J. 2 T. R. 167, 8, and Holt, C. J. Lord Rayın. 1032.

defendant, with force and arms, debauched the plaintiff's daughter, per quod servitium amisit. It has been holden, that this action may be maintained, although the daughter was of age at the time of the seduction. But as the action is founded on the loss of service, that must be alleged in the declaration (5); and it must be proved that the relation of master and servant (which in these cases the law implies from very slight circumstances,) (6) subsisted at the time when the injury was committed', and the circumstance of the daughter having been under age at that time, will not dispense with the necessity of this proof. It is not necessary, however, to prove a contract for service, if the daughter was in fact a servant, nor that she slept in the housef. But evidence must be given of acts of service; the slightest, however, will be sufficient, as milking cows and the like. In a case where it appeared that the plaintiff's daughter had been married eight years before, had two children, and was then separated from her husband for five years, during which the husband had not any access, the wife having returned to her father's house, and lived with him, and acted as his servant. During this residence with her father she was debauched by the defendant, and had a child by him. It was holden”, that the rela

b Bennett v. Allcott, 2 T. R. 166. f Mann v. Barrett, 6 Esp. N. P. C. 23. c Saterthwaite v. Dewhurst, B. R. E. g Per Buller, J. in Bennett v. Allcott,

25 G. 3. cited in 5 East, 47 n. and 2 T. R. 168. Der Abbott, C. J. MSS.

Manvell v. Thomson, 2 C. and P. d Postlethwaitev. Parkes, 3 Burr, 1878.

304. recognized by Buller, J. in 2 T. R. h Harper v. Luffkin, 7 B. and c. 166.

387. e Dean v. Peal, 5 East, 45.

(5) “Although the daughter cannot have an action, yet the father may, not for assaulting his daughter, and getting her with child, because this is a wrong particularly done to her, yet for the loss of her service caused by this.' Per Roll. C. J. Norton v. Jason, Sty. 398.

(6) In one case, Littledale, J. expressed an opinion that it was not necessary to shew any acts of service done by the daughter ; it was sufficient that she lived in the father's family under such circumstances that he had a right to her services. Maunder v. Venn M. & Malk. 323. In Holloway v. Abell, 7 C. & P. 528. it appeared that A. occupied two farms seven miles distant from each other, A. resided at one, and his son and his daughter at the other, where she acted as mistress and had the poultry for her benefit. This was holden sufficient, to prove her the servant of A. per Littledale, J. who thought that it was not necessary for defendant to plead specially that daughter was not servant of plaintiff.

2 F

VOL. II.

tion of master and servant might and did exist in this case, and that in the absence of any interference by the husband, it was not competent to the defendant, a wrongdoer, to set up the rights of the husband as an answer to the action.

Witness.—The daughter or servant is a competent witness to prove

the Plaintiff brought trespass against the defendant for breaking and entering his house, and debauching his daughter, by which he lost her service for a long space of time. Upon the trial it appeared, that the defendant was admitted in the way of courtship to visit the young woman: that proposals had been made on both sides; that one night she went to bed, and left her chamber window open, and the defendant, by setting a ladder to her window, got into her chamber, and having lain with her, she became pregnant, and afterwards had a child, whereby the father was put to a great expense. These facts the judge at Nisi Prius admitted the daughter to prove, upon which the jury gave 1501. damages. A motion for a new trial was made on the following grounds; ist, Because the verdict was against evidence, there being no proof of any trespass committed in breaking the house, but on the contrary that the window having been left open by the plaintiff's daughter the defendant entered by virtue of a license from her and so could not be a trespasser. Norton v. Jason, Styl. 398. Hunt v. Wotton, T. Raym. 260. 2dly, That the daughter, who was particeps criminis and swearing for her father, and in consequence of that, swearing for herself, was not a competent witness. 3rdly, That the damages were excessive no loss of service having been proved, and the jury mistaken in their assessment of the damages, the girl having since the trial brought another action for breach of the promise of marriage. Sed per curiam, as to the first ground, the defendant's entrance into the house without the privity of the father or mother, is plainly a trespass; as to the 2d, the daughter was a competent witness, and no more interested in the question than servants in actions brought by their masters for beating them, per quod their masters lost their service, in which cases the servants are constantly admitted. 3rdly, The damages in this case are far from being excessive: the defendant being admitted in an honourable way, made a very ungenerous use of the acquaintance with the daughter, which is a great aggravation of his offence, and it is hardly possible to estimate the damage of a father under such circumstances; i Cock v. Wortham, B. R. M. 10 G. 2. MSS. S. C. Shortly reported in and as to a loss of service not having been proved, that was quite immaterial, the rule being, that where the loss of service is the gist of the action, there it must be proved; as in trespass by a master for beating his servant; but where laid only in aggravation of damages, loss of service need not be proved ; and here the action is founded on the trespass in breaking the house, and the loss of service is only consequential to it. As to the new action that has been brought, we cannot take any notice of it.

case.

Str. 1054.

Witnesses cannot be examined, on the part of the plaintiff, as to the daughter's general character for chastity, except in answer to evidence adduced by the defendant of general bad characterk. A specific breach of chastity alleged on the part of the defendant will not afford ground for such examination'. Nor does the mere cross-examination of the daughter to show that she had been guilty of improper conduct, entitle the plaintiff to call other witnesses to her characterm. The daughter is not bound to answer, in cross-examination, whether she had not previously been criminal with other men". Neither can evidence be admitted that the defendant accomplished the seduction by means of a promise of marriage. The defendant may give evidence not only of the general bad character of the plaintiff's daughter, but he may also examine witnesses to prove particular acts of sexual intercourse P between them and the daughter; this evidence, however, does not go to the verdict, but only in mitigation of damages, if the jury are satisfied that the defendant had such intercourse with plaintiff's daughter as caused him to be the father of the child alleged to have been gotten by him.

Money cannot be paid into court, stat. 3 and 4 W. 4. c. 42. s. 21.

Of the Damages.

Liberal damages are usually given in an action for seduction, and the courts are disinclined to grant new trials merely on the ground of excess in that respecto. From a laudable desire, as I conceive, to suppress the vice of seduction, against which our criminal code has not provided any punishment, many eminent judges have thought it proper to direct juries

k Bamfield v. Massey, 1 Campb. 460. p Verry v. Watkins, 7 C. and P. 308. 1 S. C.

Alderson, B. m Dodd v. Norris, 3 Campb. 519. q Tullidge v. Wade, 3 Wils. 18. Edn Ib. but see Bate v. Hill, 1 C. & P. monson v. Machell, 2 T. R. 4. Ben100. Park, J.

nett v. Allcott, 2 T. R. 166. o Dodd v. Norris, 3 Campb. 519.

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