
    Martin against Payne. 
    
    NEW YORK,
    Oct. 1812.
    A daughter. of the age of 19 years, with her “father forked when she he Agreed* to ^wórk; but there was no agreement for her continuance in his any house for ¡,™®'r uncle’s house,^she^ and got with mediately “f" tei-wards, re-father’shouse, maintained, pense of her tad not the happened to no”’ intention hlr father was held that the “case for and^gettmg ^ Servant with child, vtámi¡°dami. SnabtoTy the father against her seducer; the fá« ther not having devested. himself of his . ... . power to reclaim the services of his daughter; and the supposed relation of master and servant was presumed from his right to her services, arising from Ms liability to maintain and provide for her while under age.
    THIS was an action of trespass on the case, for debauching and getting with child Lanah, the daughter and servant of the plaintiffj by which he lost her service, and was obliged to expend a large sum of money for the expenses of her lying in, &c.
    The cause was tried at the Washington circuit, in June, 1811, before Mr. Justice Spencer. At the trial the daughter of the plaintiff was produced as a witness, and proved the seduction, and pregnancy, &c. that at the time of the seduction, which was in the spring of the year 1810, she was 19 years of age, and lived in the house of her uncle, with whom she had resided from the autumn of 1809. She worked for her uncle when she pleased, and was to receive from him, for her work, one shilling per day. She also worked for herself, and expended all her earnings, in clothes and necessaries for herself, as she saw fit. There was no agreement for her continuance in her uncle’s house for any particular time; but she went to reside with him, on the terms above mentioned, with the consent of her father. The defendant paid his addresses to her, while she was at her uncle’s, and she expected to have married him; and had, at that time, no expectation of returning to her father’s house to reside. During the period of her residence with her uncle, she occasionally visited her father’s house, remaining there a week at a time. Immediately after she was debauched, she returned to her father, who supported her, and was at the expense of her lying in, &c. It did not appear that the father had done any act dispensing with his daughter’s service, other than consenting to her remaining with her aunt,
    The defendant’s counsel objected, that the plaintiff was not entitled to recover; but the judge, without deciding the question, permitted the cause to go to the jury, who found a verdict for the plaintiff subject to the opinion of the court, on the facts in the ease, as above stated.
    
      
      Skinner, for the plaintiff.
    If, at the time of her seduction, the daughter can be considered as in the service of her father, the action is maintainable. The only evidence to the contrary is the declaration of the daughter that she did not expect to return to her father’s house to reside; but this must be taken in connection with her previous language, that she was courted by the defendant, and expected to be married to him. The fair inference from the whole testimony is, that she grounded her expectation of not returning again to live with her father, on the belief that she was soon to be married to the defendant. It cannot, therefore, be said that here was, in truth, no animus réveríendi. This case is clearly distinguishable from that of Dean v. Peel, (5 East, 45.) which will, no doubt, be relied upon by the defendant’s counsel. Here the daughter went to live with her uncle, by consent of her father, under a contract with the uncle to pay her for her services. The father was bound to maintain her, and permitted her to go out to earn wages. In case her uncle had refused to pay her, the father only could have maintained an action against the uncle to recover the wages. She must, therefore, in presumption of law, be considered as in the service of her father. He is responsible for her maintenance while she is under age, and is, therefore, entitled to her services and earnings.
    
    The case of Dean v. Peel is a recent decision of the English court of K. B. and is opposed to the principle of prior adjudications. It has no binding authority on this court.
    
      Henry, contra.
    This is an action for a loss of service. A father cannot maintain an action against another for debauching his daughter and getting her with child. He can only maintain an action of trespass quare clausum fregit for entering his house, and assaulting and getting his daughter with child, per quod servitium amisit. The only ground on which the action is sustainable is a loss of service; the rest is matter of aggravation.
    
    The plaintiff must make out an actual and subsisting relationship of master and servant. There must be an actual service, and under the paternal roof. If at the time of the seduction, the daughter is not in the actual service of her father, he cannot maintain this action. The case of Dean v. Peel is in point. That case is not new law; it recognises only principles before settled. The facts of this case are stronger against maintaining the action.
    
      The mere circumstance that the father is legally entitled to the wages earned by his child, will not give him a right to this action. 1812.he right of the father to those services is founded on the fact of his protecting and maintaining his child. He is entitled to this action, because he is the protector and guardian of the morals and virtue of his child; but if he suffers her to depart from his house, or withdraws his protection, he has no right to an action. If the daughter remains under his roof and protection, he may maintain an action for entering his house, and debauching her, per quod servitium amisit, though the daughter is an adult; but some acts of service, however slight, must be proved, though there need not be a contract of service.
    
    
      J. Russel, in reply, insisted, that if the relationship of master and servant existed, either at the time of the seduction, or at the time of the alleged loss of service, the action was maintainable; for the daughter being under age, and having returned to the house of her father, while pregnant, and there lain in, an actual loss of service had accrued. A service, de facto, is not necessary to be shown. It is enough that the father is entitled to the services of his daughter, while under age, and has a right to control her conduct. Her secret determination to marry, and not return to her father’s house, cannot change the relationship, nor affect his rights. The principle of the decision in Dean v. Peel, that the daughter had expressed an intention not to return to her father’s house,, is not founded in reason; and the case of Postlethmaite v. Parks merely decides that this action is not maintainable where the daughter is of full age, and resides abroad out of her father’s house.
    
      
      a) This cause was decided in last August term, but accident prevented its insertion in its proper place.
    
    
      
       1 Bl. Com. 446.
      
    
    
      
      2Ld.Raym. 1032. 6 Mod. 127.S. C.
    
    
      
       3 Burr. 1878. Postlethwaite v. Parks.
      
    
    
      
       2 Term. Rep. 166.
    
   Spencer, J. delivered the opinion of the court.

The case of Dean v. Peel (5 East, 49.) is against the action. It was there held that the daughter being in the service of another, and having no animus revertendi, the relationship of master and servant did not exist. In the present case, the father had made no contract hiring out his daughter, and the relation of master and servant did exist, from the legal control he had over her services; and although she had no intention of returning, that did not terminate the relation, because her volition could not affect his rights. That is the only case which has ever denied the right of the father to maintain an action for debauching his daughter whilst under age; and I consider it as a departure from all former decisions on this subject. It has frequently been decided, that where the daughter was more than twenty-one years of age there must exist some kind of service; but the slightest acts have been held to eonstitute the relation of master and servant, in such a case. In Bennet v. Alcolt, (2 Term Rep. 166,) the daughter was thirty years of age, and Fuller, Justice, held that even milking cows was sufficient. But where the daughter was over twenty-one, and in the service of another, as in Postleithwaite v. Parks, (3 Burr. 1878.) the action is not maintainable. In Johnson v. M‘Adam, cited by Topping, in Dean v. Peel, Wilson, J. said that where the daughter was under age he believed the action was maintainable, though she was not part of the father’s family when she was seduced, but when she was of age, and no part of the father’s family, he thought the action not maintainable. In Fores v. Wilson, (Peake’s N. P. Cas. 55.) which was an action for assaulting the maid of the plaintiff, and debauching her, per quod, &c. Lord Kenyon held that there must subsist some relation of master and servant, yet a very slight relation was sufficient, as it had been determined that when daughters of the highest and most opulent families have been seduced, the parent may maintain an action on the supposed relation of master and servant, though every one must know that such a child cannot be treated as a menial servant.

Put the case of a gentleman’s daughter at a boarding school, debauched and gotten with child, on what principle can the father maintain the ácfcion, but on the supposed relation of master and servant, arising from the power possessed by the father to require menial services; for in such a case, there is no actual existing ser-, vice constituting the relation of master and servant. Would it not be monstrous to contend that, for such an injury, the law afforded no redress ? The case supposed is perfectly analogous to the One before us: here the father merely permitted his daughter to remain with her aunt; he had not devested himself of his power to reclaim her services, nor of his liability, to maintain and provide for her. She was his servant de jure, though not defacto, at the time of the injury, and being his servant de jure, the defendant has done an act which has deprived the father, of his daughter’s services, and which he might have exacted but for that injury. We are of opinion that the action is maintainable under the circumstances of this case, and, therefore, deny trial. the motion for a new

Motion denied. 
      
       See Christian’s observation on this kind of action, 3 Bl. Com. l42. note (13). Selwyn’s N. P. 966. 979. Peake’s N. P. Cas. 55. 233. 2 Term Rep. 4. 5 Bos. & Pull. 476. 2 Caines' Rep. 219. 3 Wils.. 18. 3 Esp. Cas. 119. 1 Johns. Rep. 297.
      
     