
    Hornketh against Barr.
    may maintain an action on tl)£ CRS6 for the seduction daughtr|l,n°p£r quodserviHum amsit, though at the time she did with him; k'd'h'11'01’ entitled to services'.1* her
    In Error.
    THIS was an action of trespass on the case, brought in the District Court for the city and county of Philadelphia, by ' “ # Hugh Barr, the defendant in error, against the plaintiff in errori George Hornketh, for debauching his minor daughter, per quod servitium amisit.
    
    On the trial, it was proved, that the plaintiff below resided m Northampton county, and that his daughter, about eleven s'ncei came, with his consent, to Philadelphia, to reside W*t^1 a marrle<^ sister, with whom she remained until the year 1815, when she returned to her father, and continued vvit^ him a year. She then went again to Philadelphia, with her father’s consent, and lived occasionally at service, under an engagement for wages. After her return from the country, a young brother also came to reside with the married sister, who received from their father, when he came to town, such articles of provisions and household furniture, as his circumstances enabled him to bestow. The seduction and confinement of the plaintiff’s daughter, took place in Philadelphia, before she attained the age of twenty-one years.
    Upon these facts, the following charge was delivered to the jury by
    M‘K.ean J. — The form of action may be trespass or case. If trespass be brought, some actual or constructive trespass must be stated and proved. But the slightest technical trespass is sufficient to maintain the action, — as the mere entry on the premises of the plaintiff without permission. The seduction and loss of service are considered as consequential to it. But damages may be given, not for the trespass merely, but for the injury done by the seduction of the child.
    ■ If case be brought, the action is founded on the loss of service merely. The daughter is considered as the servant of the father. If the child be above twenty-one, it has been held, that some evidence of service must be given, — but any the least act of service, is held to be sufficient. If the child be under twenty-one, as the parent is entitled to her service, no act of service need be proved, if seduced while living With the father; but if not living with the father, or under his immediate control, it.was thought by some that the action could not be sustained, because the relation of 'master and servant did. not exist.
    The law hjd not expressly given a remedy, or provided a punishment for the wrong done to the parent by the seduction of his child. This form of action was adopted and encouraged by the Courts, founded and sustained on technical notions of the relation of master and servant, and the actual or supposed loss of the service of the child. I consider it now as a mere technical form of action to recover for the loss ©f service, but in substance to recover damages for the injury to the honour, the comfort, and the happiness of the parent. If the child was above twenty-one at the time of the seduction, to sustain the action, it is now necessary to shew some act of service, though trifling; but if the child be under twenty-one, it is not necessary to prove any act of service. The father is bound to maintain his.minor,child, and he is-entitled to and mav command her services.
    It is contended that as the child in this case did not live with her father, he could not lose by the want of her services. We may answer that the father could command the services of his child at any time. Therefore during her pregnancy and confinement, he lost, because he could not have had her services, if he had required them.
    The father was entitled to the wages she earned ; and if he permitted her to use the wages to clothe herself, the appropriation was for his benefit, as,he must otherwise have clothed her; and by her inability to labour, he lost the benefit of her services. But I put the loss of service out of the question. The loss of service in general would be very small, — in this case not more than' seven or eight dollars. I consider the action now substantially, an action by the father, to recover damages for debauching his minor daughter; and I hold that it is not necessary, the child should actually reside with the father, if she resides elsewhere, with, or not against his consent.
    
      A child, at a boarding school, — residing with a friend to be educated, — or on a visit, — or at service, is still subject to the control of the parent, and under his protection and care.
    Whether she resides under her father’s roof or abroad, the destruction of the family’s honour and the parent’s peace, is still the same. The crime is a great one, and every parent must know and feel that he would consider it so, if such an occurrence should happen in his family.
    In this case the child did not live in the house of her father : the reason assigned is, that her father had married a second wife, and that the stepmother did not use the children by the first wife well; that the father was therefore obliged to place his children elsewhere; and he placed this daughter with her elder and married sister ; — perhaps the most proper place.
    To this charge the counsel for the defendant tendered a bill of exceptions, and the verdict being for the plaintiff, a writ of error was sued out.
    The case was argued by P. A. Browne for the plaintiff in error, who contended,
    that the father could not maintain an action, for an injury to his child, per quod servitium, amisit, without proof of actual service. Where the child resides permanently with another, the suit should be brought by the person with whom the child resides; who in the present case was the sister. In support of his argument, he referred to Grey v. Jefferies, Cro. El. 55. Barham v. Dennis, Cro. El. 769, 770. Robert Money’s Case, 9 Co. 113. Norton v. Jason, Style, 398. Russell v. Corne, 2 Lord Ray. 1032. 6 Mod. 127, S. C. Postlethwaite v. Parkes, 3 Burr. 1878. Peak's Ev. 333, 334. Esp. N. P. 645. 1 Bac. Ab. 87. 4 Bac. Ab. 593. 3 Selw. N. P. 967, 969.
    
      Norris and Scott, contra,
    relied on Reeve's Dom. Rel. 291. 1 Bl. Com. 446, 447. 3. Serg. & Rawle, 218. Foster v. Scoffield, 1 Johns. 297. Martin v. Payne, 9 Johns. 387. Nickelson v. Stryker, 10 Johns. 115. 1 Woodis. 452. Logan v. Murray, 6 Serg. & Rawle, 175. Norris v. Baker, 1 Roll’s Rep. 393. Hunt v. Wotton, T. Ray, 259. 2 Com. on Cont. 354.
   The opinion of the Court was delivered by

Duncan J.

In this action, the loss of service is the legal foundation of the plaintiff’s right; and though it is difficult to reconcile to principle the giving damages ultra the mere loss of service, — -damages for the injured feelings of the parent, for family honour and distress, — damages for loss of comfort ; and though the pecuniary loss is generally the smallest, where the damages recovered are the greatest, and where the real loss of service is lost sight of in the higher injury done to the child, yet the loss of service is still the foundation of the action; though, in fact, she was not accustomed to perform any servile labour or menial office in the family. Yet, however liberal Courts may. have been, by letting in other evidence than the value of the services, to increase the damages, they have never extended the boundaries óf .the action. There is no authority or principle to warrant the position, that civil actions may be considered as media of punishment for moral offences; .but where there exists this ground of loss, that is made the instrument of punishment, and to operate as a lesson' to the offender, as the invader of domestic happiness. But the extra damages have no foundátion to stand upon, except the loss of service. I do not by any means agree in opinion with those who think that loss of labour (which is the gist of the action) is not in question, where the inquiry is on the legal cause of action; though I agree with them that it is pretty much lost sight of in assessing the damages; for if it was not in question, then mere seduction, inconsequential fornication, would be actionable, whether the daughter was an adult or a minor, which it certainly is not. If the daughter be above t.he age of twenty-one, there must exist some kind of service, however slight; but under twenty-one, though not living under her father’s roof, but residing with another, and in the temporary service of another, (if the father has not renounced and abandoned her totally, divested himself of all right to reclaim her services,) she continues under his protection and control; her services may be demanded and coerced; he is liable for her support, and she is his servants jure ; and the defendant having done án act which has deprived the father of his daughter’s services, which' he might have required and enjoyed,, but for this injury, his obligation to support her, his right to. her services, his title to her wages, until her majority, are t}le grounds of the action. He does not rely on the relation Parent an(l child, but master and servant. During pupillage, the child gains no domicil distinct from the parent. The cases Gf emancipation have always been decided either on the circumstance of the child’s being twenty-one, or mar-tied, or having contracted a relation inconsistent with his being in a subordinate situation in the father’s family: and a child under twerjty-one, who resides not with his father’s family, but permanently with another, is entitled to his father’s settlement, acquired after he ceased to reside, with him ; because in that time he remained under the power of the father. The father having had a right to the child’s custody, might have obtained it on a habeas corpus; for his parental care, power, and authority had, by no act, been finally renounced by him : nor had the right of an actual master or one standing in loco parentis, become vested in another. Taking the whole structure of the charge, it may be so construed, as thus leaving it to the jury, and the whole of it must be taken as one connected opinion. The Court say, it is not necessary to maintain the action, that the child should actually reside with the father j if she reside elsewhere, with or not against the consent of the father : and put the action on its true principles, — the subjection of the child to the father’s power j his right to her services, and his liability to support her. Who could maintain the action for services lost, if the father could not ? Taylor,, with whom she was in service, (when the injury was done) for seven weeks could not, for he had sustained neither damnum nor injuria. Her sister could not, for she did not stand in loca parentis; she was not entitled to her services ; she had not lost her services; the child lived with her on account of some disagreement with her stepmother; it may be fairly presumed, placed with her sister by her father as the most proper place ; and it is not an unnatural presumption, that the presents made by the father to the married sister were considered by her as some small allowance towards her support. The father’s right to recover does not depend on her returning to her family during pregnancy, and on her lying-in expenses. She might have returned; and he be bound ;o support her. The per quod servitium amisit is technically made out by the evidence, that by the acts of the defendant below, the plaintiff in error, he was deprived of the services of his child, — services which he had a right to claim, which were his in potentia, which the child owed to him, and which he put it out of her power to perform. The judgment stands affirmed.

Judgment affirmed.  