
    Logan against Murray.
    
      Monday, September25.
    Tresspass cannot bo maintained by ber daughter, mtimanddt, ^[o^was6* during the lifether with ¿anghtore sided at the *he father’s mained with who™ a^atthe ly-nghf and^ who supportherhchiid!d
    In Error.
    THE declaration in this case, which was removed to this ’ Court by writ of error, from the Common Pleas of Westmoreland county, set forth, that the defendant, James Murray, on the 16th September, 1815, with force and arms, at the county aforesaid, made an assault on Sarah Logan, then and yet being, the daughter and servant of the plaintiff, Margaret Logan, and the said Sarah, then'and there did beat, wound, and ill treat, and did debaüch, carnally' know, impregnate, and get with child, whereby the said Margaret, lost the comfort and service of the said daughter for a long time, to wit, from the time aforesaid, until the sueing of the writ in the present case, and was put to great labour and expense in maintaining and taking care of the said Sarah during her lying-in of the said'child, and other enormities to the said Margaret did, against the peace, &c.
    
      Sarah, the daughter, who was above the age of twenty-one years, when the alleged injury was done, resided with her father, and had the direction of his household affairs until his death, on the 28th November, 1815. After the death of her father, she resided with her mother, who became the head of the family, and at whose house she was .delivered of the child on the 2d June, 1816 ; after which, she was never well. She remained with her mother, by whom, both she, and her child were supported, until January, 1817, when she died.
    The President of the Court of Common Pleas, (Young,) charged the jury, that upon the facts given in evidence, the present suit could not be supported; to which opinion, the counsellor the plaintiff excepted.
    . Alexander, for the plaintiff in error,
    assuming the fact, that the defendant had had criminal connection with the plaintiff’s daughter, and that the plaintiff had sustained damage in consequence of it, insisted, that although no case precisely similar to this was to be met with in the books, the plaintiff must be entitled to recover, or there would be a failure of justice. The well known maxim of the law, he said, was, that for every injury, a remedy was provided, and as no other person than the plaintiff, could support an action for these injuries, the weight of which had fallen upon her,it followed, that she was entitled to sue. Though the form of action usually adopted on such occasions is trespass, yet in effect, the action is case, the injuries sustained being consequential; and Courts, with great propriety, have gone considerable lengths, and shewn much liberality in applying a remedy for injuries of so deep and delicate a character. Though the foundation of the action is the supposed relation of master and servant, the slightest evidence of service is sufficient, where the daughter resides with the parent, and has arrived at years of maturity. An action will lie for debauching an adopted daughter.—Evidence may be given, of the mental pain and affliction suffered by the parent.—And an action may be maintained by the father, for the lying-in expenses, &c., of his daughter, though she did not reside with him at the time of the seduction. 1 Bl. Com. 445. 3 BL 143. 2 Chitty’s PI. 237. note. Salk. 206. Brown Ux v. Gibbons.
      
       3 Woodison, 252. 1 Tidd’s Prac. 6. Martin. v. Payne,
      
       In the case of Postlethwaite v. Parkes,
      
       which seems to bear more than any other against this action, the daughter had left her father’s house, worked for herself, and at the time she was debauched, lived at foreign service, and did not return to her paternal roof until a short time before her confinement, after which she boarded with her father as a common boarder.
    
      Wilkins, who was counsel for the defendant in error, did not argue the case.
    
      
      
         2 Ld. Raym. 831.
    
    
      
      
         9 Johns. 387.
    
    
      
       3 Burr. 1878.
    
   Duncan J.,

briefly stated the facts, and then delivered the opinion of the Court as follows:

For this injury to the parent, trespass will lie. Although the action may be framed in case, yet trespass seems to be adopted generally, as the form of action: but whether brought in trespass or in case, the loss of service is the legal foundation of the action ; the consequence, is matter of gravation. Postlethwaite v. Parkes, 3 Burr. 1878. If the daughter be above the age of twenty-one years, there must exist some kind of service, but the slightest acts constitute the relation of master and servant; but if she be under twenty-one, and there is no actual- service- performed by her for her parent, if he has not parted with' his right to her service, has not divested himself of his right to retain her services, she is his servant de jure, and' the defendant has done an act which has deprived him of his daughter’s services, .which he might have exacted, but for that injury. These" principles naturally flow from the relation of father and child, and from his right to her service until twenty-one, and his liability to support her. Martin v. Payne, 9 Johns, 387.

Many injuries may be done to a child, which are not the subject of an action' by the father.

The act of mere inconsequential incontinence, unaccompanied with pregnancy or seduction of the child from the service of the parent, it is apprehended, afford the parent no cause of action.

Whatever damage the mother might sustain, arose from an act committed in the father’s life time. ' The daughter was his servant. W.hen her mother became, on her husband’s death, the mistress of the house, the mischief was done ; the daughter came into her service pregnant. If the alleged trespass gave her no cause of action, the consequence of the trespass could not. ‘When the trespass was committed,- the daughter was the servant of another.—We mustióse sight of the foundation of the action, which in the case of an adult is the actual service at the time the act was done, if we decide, that this action can be supported by one who afterwards becomes master ; for the same principle must exist between parent and child, as-between other masters and servants. If the master, entitled by indenture to the service of a female,disposes of her time to another, the servant being then pregnant, the assignee cannot support an action for the consequence of the pregnancy. It is damnum to be sure, but it is damnum sine injuria. Between the mother and the daughter, the father being alive when the injury was done, there could not exist the relation of master and servant. On the death of the husband, it could not survive to her; it could not survive to any one; it was a tort which died with the peráon. If Sarah Logan, at the time of impregnation, was not in hey father’s service, but returned to his family before her delivery, he could not support this action. Now the mother here stands precisely in that state.

I agree with the counsel for the plaintiff in error, that this action is considered with great liberality, and that courts of justice have extended it very far in comprehending, not only parents, but other relatives in loco parentis, and even strangers who have adopted the children of others; but they have always adhered to the nature of the action; have never extended it to cases, where, at the time of the injury done, the person complaining was not, in contemplation of law, either enjoying the services of others, or having a right to retain them. The wife here, had no legal right; all her rights were extinguished in the marital rights of her husband. She could have no servants ; she was entitled to no service. ■ When this injury was done, her very legal existence was suspended. She could bring no action alone for this injury; she could not join with her husband in this action. The lying-in expenses, the support of the daughter, the mental pain she may have sustained, do not of themselves give the cause of action, although in truth, the latter forms the principal feature in giving damages, which are seldom measured by actual expenditure, or pecuniary compensation for actual service ltist. The judgment must be affirmed.

Judgment affirmed-  