seduction was necessary to the giving of exemplary damages. In Damon v. Moore the alleged seduction was accompanied with force.

Evidence of a promise to marry, after the seduction, which the plaintiff refused, is inadmissible in mitigation, though the daughter would have consented. Ingersoll v. Jones, 5 Barb. 661.

The loss of service must, of course, be the proximate cause of the seduction. Knight . Wilcox, 14 N. Y. 413. If no pregnancy follow, but only loss of health, caused by mental suffering which is not the consequence of the seduction, but is produced by subsequent intervening causes, such as abandonment by the seducer, shame resulting from exposure, or other

similar causes, the loss of service is too remote a consequence of the act. Ib.; Abrahams v. Kidney, 104 Mass. 222, Morton, J.; Boyle v. Brandon, 13 Mees. & W. 738.

So it is held that evidence is inadmissible in this action that the defendant procured an abortion upon the female, on the ground that the resulting damages were too remote. Klopfer v. Bromme, 26 Wis. 372.

Rights of Widow. Daughter in Service of Third Person. - Some of the cases have swung far away from Dean v. Peel. In Sargent v. 5

Cowen, 106, the declaration stated that E. B., daughter of the plaintiff, had been bound by indenture as servant to P. F.; that she had been debauched by the defendant while at service with P. F.; that, pregnancy having followed, the indentures were cancelled by the parties, and the daughter then returned to the service of the plaintiff; and that afterwards, while yet an infant, and in the service of the plaintiff, she was de

livered of a child, per quod, &c. It was not proved that there was, in fact, any seduction; the daughter, it appeared, had been extremely loose and indecorous in her habits; and yet the jury returned a verdict for the plaintiff with $920 damages. On a motion for a new trial, on the ground that there. had been no loss of service to the plaintiff, since she had signed the indentures, and because of excessive damage, the Supreme Court held these grounds insufficient to justify the motion. The case, however, went off upon other grounds, and a new trial was granted.

Mr. Justice Sutherland, who delivered the judgment, said: "It must be conceded that if the indentures of apprenticeship had not been cancelled or voluntarily rescinded by the parties, the mother could not have maintained this suit. It is not founded upon the relation of parent and child, but of master and servant; and where the latter relation does not exist, either in fact or in judgment of law, no loss of service can be alleged or proved, without which an action on the case for seduction cannot be sustained. . . . In an action of trespass on the case for an injury like this, the real cause of action is the expenditure of money, and the loss of service consequent upon the seduction. Hence, the action cannot be sustained for seduction unless it is followed by pregnancy, or the loss of health, and consequently of service. 3 Bl. Com. 142, note. The per quod is the gist of the action. But trespass may be maintained where the defendant illegally enters the father's house; and debauching his daughter may be stated and proved as an aggravation of the trespass, although it may not have been followed by the consequences of pregnancy. Where the action is trespass,

whether it be followed by pregnancy or not, the illegal entry is considered the gist of the action, and the loss of service, &c., merely as consequential. If the trespass, therefore, be not proved, the plaintiff cannot in such case recover. 2 Ld. Raym. 1032; Bennett v. Allcott, 2 T. R. 168, per Buller, J.; 3 Bl. Com. 143, note. It would seem, according to these principles, not to be material who was entitled to the services of the female at the time of the seduction, when the action is case. But the real inquiry is, upon whom has the consequential injury fallen, the expense attending her confinement, and the loss of her services? Suppose a daughter hired out by her parent for a month, or six months, and debauched during her service, but the fact not known nor the consequences of it apparent until after the expiration of her term of service, and her return to her father's house; is there no remedy in such a case? If there is, it must be long to the parent; for, if the circumstances of the case would support trespass in the name of the master, the recovery would be nominal merely, as he could not aver or prove the consequential injury by way of aggravation. Or, suppose the case put by counsel upon the argument, that an indented or hired servant is debauched by her master; has the parent no redress? The supposition is not to be endured. It cannot, therefore, be necessary, according to the theory or just principles by which this action is regulated, that the parent, in order to sustain it, should be entitled to the services of the daughter at the very instant when the act is committed, which subsequently results in a loss of service or necessary pecuniary disbursements. The latter circumstances constitute the real grava

men; and if that fall upon the parent, it entitles him to the legal redress."

This case, while accepted in the more general principles laid down by the court, has been denied to be law in deciding that a right of action in such cases belongs to the mother, especially under the circumstances of the case. South v. Denniston, 2 Watts, 474; Roberts v. Connelly, 14 Ala. 235.

In South v. Denniston, Gibson, C. J., said that, while the doctrine of Dean v. Peel had been justly repudiated, since, as to the father, his right to his daughter's service was independent of her will, the rule was otherwise as to the power of a widowed mother. "A mother," said he, "being at best in the category of a father who has parted with his right, can maintain an action but on proof of actual service at the time of the seduction. Not being bound to the duty of maintenance, she is not entitled to the correlative right of service; and standing as a stranger to her daughter in respect to these, the relation of mistress and servant can be constituted between them but as it may be constituted between strangers in blood, save that less evidence would perhaps be sufficient to establish it." Referring directly to Sargent's Case, the learned Chief Justice continued: "But nothing is more sure than that a mother is not entitled to the service of her child by the common law; and the decision, therefore, obviously rests on some statutory provision, devolving the parental rights of the father upon his widow, which is not in force here." And he then suggested a doubt whether, even under a statutory provision of that kind, a right of action existed for a seduction which had taken place after the widow had parted with her right, without reservation or recall; and even

taking it for granted that it reverted to ber upon the cancellation of the indentures. He said that it required but little aid from authority to sustain the principle that a party could not entitle himself to an action for what was no wrong to him by employing a disabled servant. "An action for loss of service," he observed, "would certainly not lie for beating one who was not in the plaintiff's service at the time, because it would be esteemed an act of folly in him to employ an unfit person; and it must necessarily be indifferent, in point of principle, whether the unfitness were caused by beating or impregnation. It was so considered in Logan v. Murray, 6 Serg. & R. 175, where the daughter had come pregnant into the mother's service, after the death of her father, in whose service she had been debauched. As to the childbed expenses, assuming that the mother is liable to bear them (though we certainly have no law for it), these, though proper to swell the damages, are not a substantive ground of the action, as was held in Logan v. Murray; and as to the argument so earnestly pressed upon us, that she is entitled to compensation for the increased risk of becoming chargeable for the daughter's maintenance as a pauper, it is enough to say that it would make the mother's right depend on the contingent inability of the daughter to maintain herself, which is not the foundation of the action by a father, whose duty to maintain is an immediate one, and independent of all consideration of the child's own means."

The learned judge who delivered the opinion in Sargent's Case answered, by anticipation, the objection presented above, that a party could not claim damages when he had taken a disabled

servant into his service, by stating, at some length, that the seduction was good ground for the master to require the cancellation of the indentures; and, therefore, if the position tacitly assumed was correct, that the widow was bound to maintain the daughter, it followed that she must receive her upon the cancellation of the articles of indenture.

The confident assertion of Gibson, C. J., that the widow is not entitled to the services of her infant children, is repeated by the Court of Appeals of New York in Bartley v. Richtmyer, 4 Comst. 38, 46. See also 2 Kent, Com. 191. And in this case of Bartley v. Richtmyer, the further point in Sargent's Case, doubted by Chief Justice Gibson, that the defendant was liable to the plaintiff though the seduction had occurred while the infant was in the legal service of another, was also denied to be law. We propose to examine these questions at some length.

It is conceded that in the lifetime of both parents the father has full control over the services of his children, until he has been adjudged incompetent by process of law, and that his control is exclusive. Chambers, Infancy, 89. The father is entitled to the custody and care of the children, even infants at the breast, as against the mother. Ib. 86, 89; De Manneville v. De Manneville, 10 Ves. 62. The common law recognizes no division of rights between them. The question, then, is, whether upon the father's death this power and authority devolve upon the mother, either as succeeding to the rights of her husband quasi an heir, or by reason of their previous dormant existence in her, which only required the death of the husband to enable them to spring into full force.

It is pretty clear that the widowed

mother does not acquire the same extent of authority in all respects as the father possessed; she cannot, for instance, compel them to change the religion in which the father desired them to be educated. Talbot v. Shrewsbury, reported in Chambers, Infancy, 118; Reynolds v. Teynham, 9 Mod. 140. Nor does the mother become guardian necessarily, upon the death of her husband, even if, where she is appointed such, she succeeds entirely to the position of the deceased parent (upon which see infra). The infant, if fourteen years of age, may select his own guardian, regardless of the competency of the mother for such position. In Heysham v. Heysham, 1 Cox, 179, the mother was refused the guardianship because of her insolvency; and in Roach v. Garvan, 1 Ves. 157, the mother was removed on account of disputes between her and the infants, and accusations of endeavoring to marry one improperly, facts which, it is believed, would not have sufficed to cause the father to be superseded in his natural guardianship. Besides, she is bound, when appointed guardian, to conform to the father's wishes about the education of the children.

The duty of maintenance is often spoken of as the ground of the liability of the father's right to the services of his children; and it is said to follow that if the mother is not bound to support them after his death, she cannot compel their services, and therefore cannot maintain this action.

It may be doubted if the (assumed) duty to support his minor children be the reason why the father is entitled to their services. He is certainly under no duty, moral or legal, to support grown-up children when he lacks the ability, pecuniary or physical, to do so,

especially if they possess the means or ability to support themselves. Indeed, the duty is by statute often the other way. The statute of 43 Eliz. c. 2, § 7, which is generally in force in this country, except as to grandparents (2 Kent, 190), enacts 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 sufficient ability, shall at their own charges relieve and maintain every such poor person. Under this law the parent can require the aid of his children, though wholly unable to reciprocate the benefit in any pecuniary way. The statute looks towards some other obligation on the part of children than that arising from support. And it is to be observed that in cases under this wise provision of law a widowed mother must clearly be entitled to sue for the seduction of a daughter able to help her, possibly though the daughter be of age; for by that wrong she is deprived of support which she might otherwise have by law required.

This statute expresses only the natural sense of filial obligation; and it is absurd and untrue to rest the duty of children to their parents upon what often cannot be given. The child's service belongs to his father, because his father is the author of his being. The Roman law carried this idea to an extent which could not now be tolerated. It at one time gave the father the power of life and death over his children; they were his property, as much so as were his slaves, and continued such until his death, unless he had previously emancipated them. 2 Kent. Com. 203–205. And the Jewish law was similar. Deut. xxi. 18. Our law is pervaded by juster ideas; but

the ground of the child's duty is doubtless the same as it was considered to be in the Roman law, the fact that the father has brought the child into the world. The child in a qualified sense belongs to his father during minority; and for this reason the father is entitled to his services. See upon this point a case cited by Coleridge, J., in Lumley v. Gye, 2 El. & B. 216, 250, 257, from the Year-Book of 11 H. 4, a, fol. 23 A, pl. 46, where it was said by Hankford, J., that the reason why one should have a writ of ravishment of ward where a man procured the ward to go away, was that the ward “is a chattel, and vests in him who has the right."

That the supposed duty of maintenance is not the ground of this action may also be inferred from Grinnell v. Wells, 7 Man. & G. 1033, 1042, where Tindal, C. J., speaking directly upon the point there in issue, says that where there is an absence of any allegation of loss of service to the parent, the action is not maintainable, though there might be, as there was in the case before him, an allegation that the parent was compelled to pay the expenses arising from the defendant's wrongful act.

Besides, it appears to be settled that there does not exist any legal duty on the part of even a father to support his children, in the absence of statute, except under the act of Eliz., above cited. There are, it is true, many cases in which a duty of maintenance is spoken of; but it will be found that a mere moral duty is generally meant. Thus, in Smee v. Martin, Bunb. 136, it is said that the parent ought, "by the law of nature," to support the child. In Wallis v. Hodson, 2 Atk. 115, Lord Hardwicke uses the same expression. In Butler v. Duncomb, 1 P. Wms. 454, Lord Maccles

field indeed spoke of the duty of the mother, on the death of the father, as one existing" by the law of the land and of nature; " but he refers to no authority to show that the duty is a legal one.

It is not to be denied, however, that there are cases which have been decided upon the assumed position that the father is legally bound to support his minor children without reference to the poor laws. Such are cases deciding that the father is liable for necessaries furnished his children without his authority; but this class of cases has recently been under serious and careful consideration; and the result has been that their soundness has been greatly shaken, if not entirely overturned. In Urmston v. Newcomen, 4 Ad. & E. 899, the point was left a query whether a father who had deserted his child was liable in assumpsit for necessaries furnished him without authority. It was conceded that could be no liability had there been no desertion; and Coleridge, J., referred to Blackburn v. Mackey, 1 Car. & P. 1, as having so decided.

In Mortimore v. Wright, 6 Mees. & W. 482, also an action to recover for necessaries supplied the defendant's minor child, the language of Lord Tenterden, in Nichole v. Allen, 3 Car. & P. 36, was referred to, who there said, "There is not only a moral but a legal obligation on the defendant to support his child." To this Lord Abinger, C.B., replied, "That is only a nisi prius decision; and I cannot assent to any such doctrine." A similar decision in Law v. Wilkin, 6 Ad. & E. 718, was also denied; and the plaintiff was nonsuited. Mortimore v. Wright was soon after confirmed by the judges of the Common Pleas in Shelton v. Springett, 11 C. B. 452.