In the late case of Bageley v. Forder, Law R. 3 Q. B. 559, the necessaries were supplied to the defendant's wife (who was living apart from her husband) for the child. The case was argued on the ground of the wife's authority; and was decided upon that ground. There was no suggestion that the defendant was otherwise liable. The majority of the court thought the wife, under the circumstances, had authority to pledge her husband's credit for the necessaries, on the ground that, as she was justified in living apart from her husband, and had been given the legal custody of the infant, they might be regarded as her own necessaries. Upon this point Cockburn, C. J., dissented, but said it was admitted that there was no direct liability on the father in respect of articles supplied on credit as necessary to the child. "It is now well established," said he, "that, except under the operation of the poor law, there is no legal obligation on the part of the father to maintain his child, unless, indeed, the neglect to do so should bring the case within the criminal law; referring doubtless to the duty of the parent to care for his infant children of tender years.

This doctrine has more recently still been declared in this country. Kelley v. Davis, 49 N. H. 187. "Our statute laws," said Mr. Justice Foster, in delivering judgment in the case cited, "like the English statutes of 43 Eliz. and 5 Geo. 1, from which they were borrowed, are intended only for the indemnity of the public against the maintenance of paupers, and not for the reimbursement of an individual who may have relieved the necessities of a poor person in suffering and distress; and under our statutes no action can be sustained against a parent to recover

for necessaries furnished to his child, except by the town, and after notice to the person chargeable."

The same doctrine is held in Vermont. Gordon v. Potter, 17 Vt. 348.

However, if the child comes within the terms of the poor laws, and the mother has the ability to support her, she will be bound to do so; but we conceive that this is not the true ground of her right to sue for the child's seduction, even in this case, where she clearly has the right. It is only an a fortiori reason.

But it is said that upon the death of the father the mother becomes, or is entitled, if there is no objection, to be appointed guardian of the minor children. Reeve says she is guardian in such case. Domestic Relations, 220. Chambers and Forsyth say she is entitled to the position. Chambers, Infancy, 97; Forsyth, Infants, 10, 11. Macpherson says: "The guardianship of the mother, if not superseded either by election or by the appointment of a new guardian by the court, is the proper and legitimate custody till the infant attains twenty-one." Infants, 65. While Kent says: "In case of the death of the father during the minority of the child, his authority and duty, by the principles of natural law, would devolve upon the mother;" the meaning of which seems to be that she is entitled by nature to the appointment of guardian.

If, upon the death of the father the mother becomes ipso facto guardian of the minor children, which is doubtful, the Pennsylvania cases are not in accord with each other; for it has been held in that state that a guardian is entitled to the services of his wards, so as to be able to sue for the seduction of a female. Fernsler v. Moyer, 3 Watts &

correct, that the guardian cannot sue. It is therefore immaterial whether the mother be actually guardian upon her husband's death, or only entitled to the appointment; provided her suit be brought as guardian. It seems, how ever, that under the old abolished writ of ravishment of ward the guardian could sue where the ward was procured to leave him. See the case cited from the Year-Books, ante, p. 299. But it is to be observed that the Statute of Merton as to ravishment of wards related to heirs under the age of fourteen, when the infant ceased to be in ward. Before that time the child could give no valid consent to marriage as against the guardian, and hence perhaps the ravishment of the infant could not be by consent, since such a marriage was a ravishment. See Coke Litt. 79b; 2 Inst. 202, 203. Thus, the guardian could sue, because there could be no consent to the wrong. The question is now narrowed down to this: Can the widow sue in her own right, as having acquired to this extent the situation of the father?

It seems difficult to affirm that the widow succeeds legally to the position of the father; though Chancellor Kent, as above quoted, says that the father's rights would “by natural law," devolve upon the mother. So far as succession or descent is concerned, the rights of the father would fall upon the child, as his heir, giving him control over his own services, and working, pro tanto, his emancipation. See George v. Van Horn, 9 Barb. 523, where it was held that the personal representatives of the father could not sue for a seduction which had taken place in his lifetime.

If the widow possesses the power of controlling the services of her infant children, it would seem, from the above

consideration, that she must possess it as of her own inherent right, - a right which, dormant while the father lives, comes into force upon his death. We are inclined to think this the correct view. Every consideration which favors the natural or legal right of the father to the services of his minor children applies to the mother; and, while the law cannot tolerate coequal powers during the lifetime of both parents, there is strong reason why the power of the widow should be upheld, aside from the reasons (if there are more than one) in common with those applying to the father. The mother has not the physical strength of the father, and she is in greater need of the protection and support of her children. She has endured suffering in the birth and nursing of the children which the father has not felt, and perhaps, from absence, has scarcely known. Other things being equal, the tie between the mother and child is stronger than that between father and child, especially during minority. The mother's care and influence during this period are far more powerfully exerted than the father's; and it is safe to say that the child feels under stronger obligations to the former than to the latter, a greater solicitude as to her comfort and welfare, and a livelier willingness to provide for her wants.

These considerations lead us to the opinion that the widowed mother is entitled to sue for the seduction of her minor daughter while the daughter remains under her roof. And it was lately so held in Gray v. Durland, 50 Barb. 100, s. c. 51 N. Y. 424, upon a review of the cases, and in Damon v. Moore, 5 Lans. 454.

But if it be not true that the widow is legally entitled to her minor child's

tainable. Why should it be an excuse to the seducer that the child was not legally bound to serve her mother? If she was willing to serve her mother, and, following her natural obligation, preferred not to assert her independence, how shall the seducer be justified in preventing the mother from enjoying this benefit? If one will relinquish a doubtful right under a strong moral duty, shall a third person be permitted to wickedly defeat the accomplishment? There are some strong analogies in the law in favor of the right of action of the widow under this view. The borrower of goods retained beyond the time allowed, or a tenant at will, or a bailee of goods found, has a right of action against any one interfering with his possession, so long as the rightful owner permits him to retain it; and yet the party so in possession has no legal right to it. The owner is willing that he should retain it; and that is enough. So of the infant female. Though (possibly) owner of her services, she is willing, or, rather, generally desires that her mother should have them; and that should be a sufficient reason why the man who has prevented her mother from enjoying them should pay her their value. And Sutton v. Huffman, 3 Vroom, 58, and Lipe v. Eisenlerd, 32 N. Y. 229, already referred to, are direct authorities for this position.

There is a case which was tried before Lord Holt which also sustains this view. Barber v. Dennis, 2 Mod. 69; s. c. 1 Salk. 68. In this case the widow of a waterman had her apprentice taken from her and put on board a Queen's ship, where he earned two tickets, which came to the defendant's hands, and for which the mistress brought trover. It was agreed that the action

a legal apprentice, for his possession would be that of his mistress, and whatever he earned would belong to her. But it was objected that the company of watermen was a voluntary society, and that the custom of London for persons under age to bind themselves apprentices did not extend to watermen; which was agreed by all. Then it was said that the supposed apprentice was no legal apprentice if the indentures were not enrolled according to the act of Parliament; and if he were not a legal apprentice, the plaintiff had no title. But Holt, C. J., said he would understand him an apprentice or servant de facto, and that would suffice against them, being wrong-doers.

So, in Fitzh. N. B. 91 G., it is stated that "if a man ought to have toll in a fair, &c., and his servants are disturbed in gathering the same, he shall have trespass for assault of his servants, and for the loss of their service;" to which there is a note by Lord Hale, as follows: "Trespass for beating his servants, per quod servitium amisit, lies, although he was not retained, but served only at will. 11 H. 4, fo. 2, per Hull, accordant. And so, if A. retains B. to be his servant, who departs into another county, and serves C., A., before any request or seizure, cannot beat B.; and if he does, C. shall have trespass against him (21 H. 6, fo. 9), and recover damages, having regard to the loss of service (22 Ass. 76); and the retainer is traversable. 11 H. 6, fo. 30."

In the very late case of Furman v. Van Size, 10 Albany L. J. 251, the question was set at rest in New York in favor of the widow's right of action. The daughter was there in the employ of another, under an agreement made

with the mother, and was herself receiving the wages earned and applying them to her own purposes, with the mother's assent. And the fact that the mother has remarried is not material. Lampman v. Hammond, 3 N. Y. Sup. Ct. Rep. 293. See 10 Albany L. J. 354, 400.

There is also direct authority to this effect in England. In Harper v. Suffkin, 7 Barn. & C. 387, a married woman, separated from her husband, returned to her father's house and lived with him, performing various acts of service; and it was held, in an action by the father, for her seduction, that, as against a wrong-doer, it was sufficient to prove that the relation of master and servant existed de facto at the time of the seduction, and that, in the absence of any interference on the part of the husband, it was not competent for the defendant to set up the husband's right to the services of the wife as an answer to the action. See also Martinez v. Gerber, 3 Man. & G. 88; Gray v. Durland, 51 N. Y. 424.

In the late case of Evans v. Walton, Law R. 2 C. P. 15, which was an action for enticing away the plaintiff's daughter, who was of age, and had been assisting the plaintiff in his business, the point was again raised by the defendant that as there was no allegation of a binding engagement to service between the daughter and plaintiff, or that the daughter had been debauched, the action was not maintainable; but the court held the contrary, principally upon the above authorities. authority is to be found," said Bovill, C. J., 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

"No

show the contrary." As to Cox t. Muncey, 6 Com. B. N. s. 375, and Sykes v. Dixon, 9 Ad. & E. 693, which had been referred to by counsel as deciding the contrary, the learned Chief Justice distinguished them on the ground that from the form of the declaration in those cases it became necessary to prove some contract of service beyond that which the law would imply from the relation of the parties. And the same might be said of Lumley v. Gye, 2 El. & B. 216, post, p. 306.

Several recent American authorities go still further, and hold that the widow is legally entitled to the services of her minor children, and may maintain assumpsit for work and labor done by them. Hammond v. Corbett, 50 N. H. 501; Matthewson v. Perry, 37 Conn. 435. And of this opinion is Mr. Schouler. Domestic Rel. 325, 326.

Return and Support of Child through Confinement. - As to the other question raised by the conflict between Sargent's Case and South v. Denniston, — whether an action for seduction is maintainable by the parent when the daughter was at the time of the alleged injury in the service of another, but had returned to the parent before confinement, and was supported until recovery, we think the Pennsylvania court right in deciding it in the negative.

It will be observed that we have not confined the question to the right of the widow; for if it be true that the father is not bound to support his child (except under the poor laws), he stands in no different relation to this question from the widow. We subunit, therefore, that an action under such circumstances cannot be maintained by either parent.

The contrary involves an argument such as this: True, the parent was