
    Parker v. Elliott.
    
    Decided, April 6th, 1820.
    1. Trespass on Case — Action by Father for Seduction— of Daughter. — Trespass on the case may properly be brought by a father, for loss of the service of his daughter, and expenses incurred by him, in consequence of her being debauched and got with child: no forcible injury to himself or his property being alledged in the declaration.
    See 8 wus. 18; 2 Term Eep. 167; and 6 Bast, 387.
    2. Same — Same—Declaration.—What is the proper form of the declaration in such case.
    3. Same-Same —Mitigation of Damages — Instruction. It is not error, that, in such case, the Court refuse to instruct the Jury, that if. upon the whole evidence, it shall appear to them, that the father, in the intercourse between the defendant and his daughter, (who was of full age,) did not act with the caution of a man of ordinary prudence, they ought to And for the defendant; but do Instruct the Jury that, if the conduct of the plaintilf shall appear to have been indiscrete, that is a circumstance which should mitigate the damages.
    This was an action of Trespass on the case, in the Superior Court of Halifax County, brought by Philip Elliott against Daniel Parker, for debauching and getting with child Polly Elliott the plaintiff’s “daughter and servant,” whereby he lost her service for a long time, that is to say, for the space of nine months during her pregnancy and one month thereafter, and was forced to expend divers sums of money, amounting in all to fifty dollars, in nursing and taking care of her, and in and about her delivery of her said child; to his damage two thousand dollars. The declaration was in the form laid down in 2 Chitty on Pleadings, p. 267. with no material difference. The defendant demurred; alledging, 1st, that the remedy of the plaintiff for the injury in the declaration alledged, ought to have been an action of Trespass vi et armis, and not on the case ; 2dly, that the declaration contained no positive averment of any injury done by the defendant to the plaintiff. The Court, on argument, over-ruled the demurrer; whereupon a Jury was impanelled.
    On the trial of the cause, the defendant moved the Court to instruct the Jury that, if they should consider, from the whole of the evidence, that the father, in the intercourse between the defendant and the plaintiff’s daughter *Polly Elliott, (who was of full age,) did not act with the caution of a man of ordinary prudence, in that case they should find for the defendant; which instruction was refused by the Court: — but the Court did instruct the Jury that, if the conduct of the plaintiff should appear to have been indiscrete that was a circumstance which should mitigate the damages. To this opinion the defendant excepted. A verdict was found for the plaintiff, assessing his damages to $609, besides his costs.
    The defendant moved for a new trial, which the Court refused to grant; (the plaintiff by his Counsel releasing- $209, part of the said damages;) and judgment was entered according to the verdict, deducting the sum released.
    The defendant obtained a Writ of Superse-deas from a Judge of this Court.
    Bouldin for the plaintiff in error,
    relied on two objections ; 1st that the declaration was all recital; beginning with the words “for that whereas,” and so continuing to the end, without any positive averment; and, 2d, that trespass vi et armis, and not case, should have been the action ; to prove which he cited Woodward v. Walton, 5 Bos. & Pull. 476.
    Beigh contra.
    The declaration is copied from 2 Chitty, 267. It is there said, in note (u), that case seems the more proper form, when the action is merely for the seduction and loss of service ; and so says Judge Bul-ler in Bennet v. Allcott, 2 Term Rep. 167, which opinion is supported by the reason and nature of the thing; the injury being only consequential, and not accompanied with force. The declaration, it is true, may be in Trespass vi et armis, but this is founded on a fiction of law, which supposes force in such cases ; but, in fact, there is no force at all; at any rate, none to the father or his property : as to him, the damages are all consequential.
    As to the quod cum, Chitty says it is proper in such a case as this, though improper in trespass. In Pate v. Bacon & Co., decided by this Court at last term, the declaration was like that now in question ; yet the judgment for the plaintiffs was affirmed.
    *Bouldin in reply, submitted the question Of the quod cum upon the authorities, which are very familiar. Mr. Eeigh (he remarked) had produced no authority to prove that case was the proper action, but only Mr. Chitty’s opinion, and a mere dictum of Judge Buller, not supported by any authority. The case in Bosanquet and Puller was on the very point now before the Court, and decided on full deliberation.
    
      
       For monographic note on Seduction, see end of case.
    
    
      
       Trespass on Case — Action by Father for Seduction of Daughter. — In Fry y. Leslie, 87 Va. 874,12 ft. 15. Rep. it is said; “This is an action of ex delicto, as every action by a parent founded upon the seduction of Ms or her daughter must be. 4 Min, Inst. 440; White v. Campbell, IB Gratt. 573; Parker v. Elliott, 6 Munf. 587; S. C., Gilm. 83. Such is the appropriate form of the action at common law, and our statute, now carried into § 2890 of the Code, which provides that ‘an action for seduction may be maintained without any allegation or proof of the loss of the service of the female, by reason of the defendant’s wrongful act,’ merely affects the auan-tum of proof. The action itself remains as it was, i. e., it belongs to the same class of actions as before the statute was passed. Lee v. Hodges, 13 Gratt. 726; Clem y. Holmes, 33 Gratt. 722.’’
    
    
      
      2 Chitty 265. note (r), citing-2 Salk. 636; 1 Stra. 631.
    
    
      
       See ante p. 219.
    
   By the Court,

the Judgment was affirmed.  