keeping a separate establishment cannot be deemed her father's servant (n); nor can a daughter, whether of full age or not, who at the time of the seduction is actually another person's servant, so that no part of her services is at her parents' disposal (o). On the other hand, the fact of a child living with a parent, or any other person in loco parentis, as a member of the family of which that person is the head, is deemed enough to support the inference "that the relation of master and servant, determinable at the will of either party, exists between them" (p). And a daughter under age, returning home from service with another person which has been determined, may be deemed to have re-entered the service of her father (q). “The right to the service is sufficient (r)..

Partial attendance in the parents' house is enough to constitute service, as where a daughter employed elsewhere in the daytime is without consulting her employer free to assist, and does assist, in the household when she comes home in the evening (s).

Damages. Some loss of service, or possibility of service, must be shown as consequent on the seduction, since that is, in theory, the ground of action (t); but when that condition is once satisfied, the damages that may be given are by no means limited to an amount commensurate with

(n) Manley v. Field (1859), 7 C. B. N. S. 96, 29 L. J. C. P. 79.

(0) Dean v. Peel (1804), 5 East, 45; even if by the master's licence she gives occasional help in her parents' work; Thompson v. Ross (1859), 5 H. & N. 16, 29 L. J. Ex. 1; Hedges v. Tagg (1872), L. R. 7 Ex. 283,41 L. J. Ex. 169. In the United States it is generally held that actual service with a third person is no bar to the action, unless there is a binding contract which excludes the parents' right of reclaiming the child's servicesi. e. that service either de facto or de jure will do: Martin v. Payne (Sup. Court N. Y. 1812), Bigelow L. C. 286, and notes.

(p) Bramwell B. in Thompson v. Ross, last note.

(q) Terry v. Hutchinson (1868), L. R. 3 Q. B. 599, 37 L. J. Q. B. 257.

(r) Littledale J. cited with approval by Blackburn J., L. R. 3 Q. B. 602,

(8) Rist v. Faux (1863), Ex. Ch. 4 B. & S. 409, 32 L. J. Q. B. 386.

(t) Grinnell v. Wells (1844), 7 M. & G. 1033, 14 L. J. C. P. 19; Eager v. Grimwood (1847), 1 Ex. 61, 16 L. J. Ex. 236, where the declaration was framed in trespass, it would seem purposely on the chance of the court holding that the per quod ser vitium amisit could be dispensed with.

the actual loss of service proved or inferred. The awarding of exemplary damages is indeed rather encouraged than otherwise (u). It is immaterial whether the plaintiff be a

(u) See Terry v. Hutchinson, note (q) last page.

Damages. In computing the damages suffered by the plaintiff in a suit for seduction the jury will consider "not only the loss of services which he suffered, and the expenses incurred by him by reason of the seduction, pregnancy, confinement and other illness," but also the anxiety and the suffering of mind caused by the loss of virtue of his daughter, the corrupting influence upon his other children, and the disgrace of his family. Phillips v. Hoyle, 4 Gray, 568; Rollins v. Chalmers, 51 Vt. 592; Taylor v. Shelkett, 66 Ind. 297; Wandell v. Edwards, 25 Hun, 498; Barbour v. Stephenson, 32 Fed. Rep. 66; Akerly v. Haines, 2 Caines, 292; Hogan v. Cregan, 6 Robt. 138; Stiles v. Tilford, 10 Wend. 338; Wilds v. Bogan, 57 Ind. 453; Hatch v. Fuller, 131 Mass. 574; Rollins v. Chalmers, 51 Vt. 592; Hornketh v. Barr, Serg. & R. 36; 11 Am. Dec. 568; Kendrick v. McCrary, 11 Ga. 603; Clem v. Holmes, 33 Gratt. 722; 36 Am. Rep. 793; Luecker v. Steilen, 89 Ill. 545; 31 Am. Rep. 104; Grable v. Margrave, 4 Ill. 372; 38 Am. Dec. 88; Phelin v. Kenderline, 20 Pa. St. 354.

Exemplary or vindictive damages may be awarded, in the discretion of the jury, for the double purpose of setting an example and of punishing the wrongdoer. Lavery v. Crook, 52 Wis. 612; 38 Am. Rep. 768; Badgley v. Decker, 44 Barb. 577; Torre v. Summers, 2 Nott & M. 267; 10 Am. Dec. 597; Fox v. Stevens, 13 Minn. 272; Morgan v. Rose, 74 Mo. 318; Davidson v. Abbott, 52 Vt. 570; 36 Am. Rep. 767; Johnston v. Disbrow, 47 Mich. 59; Geise v. Schultz, 69 Wis. 521; 34 N. W. Rep. 913; Franklin v. McCorkle, 16 Lea, 609; 1 S. W. Rep. 250; Ingersol v. Jones, 5 Barb. 661.

In forming their verdict the jury should consider both the merits of the plaintiff and the demerits of the defendant; and all the circumstances which diminish one or enhance the other. The moral reputation of the parties may be put in issue and their social position, and pecuniary condition may be shown either in aggravation or mitigation of damages, as the case may be. Cochran v. Ammon, 16. Ill. 316; Peters v. Lake, 66 Id. 209; Shattuck v. Hammond, 2 Rowell, 496; Hoffman v. Kemerer, 44 Pa. St. 452; Love v. Masoner, 6 Baxt. 24; 32 Am. Rep. 522; Carder v. Forehand, 1 Mo. 704; 14 Am. Dec. 317; White v. Murtland, 71 Ill. 250; 22 Am. Rep. 100; Patterson v. Hayden, 17 Oreg. 238; 11 Am. St. Rep. 822; Wallace v. Clark, 2 Overt. 93; 5 Am. Dec. 654; Drish v. Davenport, 2 Stew, 266; Hawn v. Baughart, 76 Ia. 683; Fry v. Leslie, 87 Va. 269; Leckey v. Bloser, 24 Pa. St. 401; Stoudt v. Shepherd, 73 Mich. 588; Aulay v. Birkhead, 13 Ired. 28; 55 Am. Dec. 427; Tillotson v. Cheetham, 3 Johns. 56; 3 Am. Dec. 459; Shewalter v. Bergman, 123 Ind. 155; Grable v. Margrave, 4 Ill. 372; 38 Am. Dec. 90; Rea v. Tucker, 51 Ill. 110; 99 Am. Dec. 539; Thompson v. Clendening, 1 Head, 287; Hays v. Sinclair, 23 Vt. 108.

parent or kinsman, or a stranger in blood who has adopted the person seduced (x).

Services of young child. On the same principle or fiction of law a parent can sue in his own name for any injury done to a child living under his care and control, provided the child is old enough to be capable of rendering service; otherwise not, for " the gist of the action depends upon the capacity of the child to perform acts of service" (y).

Capricious operation of the law. The capricious working of the action for seduction in modern practice has often been the subject of censure. Thus, Serjeant Manning wrote more than forty years ago: "the quasi fiction of servitium amisit affords protection to the rich man whose daughter occasionally makes his tea, but leaves without redress the poor man whose child is sent unprotected to earn her bread amongst strangers" (z). All devices for obtaining what is virtually a new remedy by straining old forms and ideas beyond their original intention are liable to this kind of inconvenience. It has been truly said (a) that the enforcement of a substantially just claim "ought not to depend upon a mere fiction over which the courts possess no control." We have already pointed out the bolder course which might have been taken without doing violence to any legal principle. Now it is too late to go back upon the cases, and legislation would also be difficult and troublesome, not so much from the nature of the subject in itself as from the variety of irrelevant matters that would probably be imported into any discussion of it at large.

(x) Irwin v. Dearman (1809), 11 East, 23.

(y) Hall v. Hollander (1825), 4 B. & C. 660. But this case does not show that, if a jury chose to find that a very young

child was capable of service, their verdict would be disturbed.

(z) Note to Grinnell v. Wells, 7 M. & G. 1044.

(a) Starkie's note to Speight v. Oliviera (1819), 2 Stark. 496.

Constructive service in early cases. It would be merely curious, and hardly profitable in any just proportion to the labour, to inquire how far the fiction of constructive service is borne out by the old law of the action for beating or carrying away a servant. Early in the 15th century we find a dictum that if a man serves me, and stays with me at his own will, I shall have an action for beating him, on the ground of the loss of his service (b); but this is reported with a quaere. A generation later (c) we find Newton C. J. saying that a relation of service between father and son cannot be presumed: "for he may serve where it pleaseth him, and I cannot constrain him to serve without his good will:" this must apply only to a son of full age, but as to that case Newton's opinion is express that some positive evidence of service, beyond living with the parent as a member of the household, is required to support an action. Unless the case of a daughter can be distinguished, the modern authorities do not agree with this. But the same Year Book bears them out (as noted by Willes J.) (d) in holding that a binding contract of service need not be shown. Indeed, it was better merely to allege the service as a fact (in servitio suo existentem cepit), for an action under the Statute of Labourers would not lie where there was a special contract varying from the retainer contemplated by the statute, and amounting to matter of covenant (e).

A similar cause

Intimidation of servants and tenants. of action, but not quite the same, was recognized by the medieval common law where a man's servants or tenants at will (ƒ) were compelled by force or menace to depart from

(b) 11 Hen. IV. fo. 1-2, pl. 2, per Huls. J. (A. D. 1410).

(c) 22 Hen. VI. 31 (A. D. 1443).

(d) L. R. 2 C. P. 621-2.

(e) 22 Hen. VI. 32 b, per Cur. (Newton C. J.; Fulthorpe, Ascue or Ayscoghe, Portington JJ.); F. N. B. 168 F.

(f) If the tenancy were not at will, the departure would be a breach of contract; this introduces a new element of difficulty, never expressly faced by our courts before Lumley v. Gye, of which more elsewhere.

their service or tenure. "There is another writ of trespass," writes Fitzherbert, "against those who lie near the plaintiff's house, and will not suffer his servants to go into the house, nor the servants who are in the house to come out thereof" (g). Examples of this kind are not uncommon down to the sixteenth century or even later; we find in the pleadings considerable variety of circumstance, which may be taken as expansion or specification of the alia enormia regularly mentioned in the conclusion of the writ (h).

In the early years of the eighteenth century the genius of Holt found the way to use this, together with other special classes of authorities, as a foundation for the

(g) F. N. B. 87 N.; and see the form of the writ there. It seems therefore, that "picketing," so soon as it exceeds the bounds of persuasion and becomes physical intimidation, is a trespass at com. mon law against the employer.

(h) 14 Edw. IV. 7, pl. 13, a writ “ quare tenentes suos verberavit per quod a tenura sua recesserunt"; 9 Hen. VII. 7, pl. 4, action for menacing plaintiff's tenants at will "de vita et mutilatione membrorum, ita quod recesserunt de tenura"; Rastell, Entries 661, 662, similar forms of declaration; one (pl. 9) is for menacing the king's tenants, so that "negotia sua palam incedere non aude. bant"; Garret v. Taylor, Cro. Jac. 567, action on the case for threatening the plaintiff's workmen and customers, "to mayhem and vex them with suits if they bought any stones"; 21 Hen. VI. 26, pl. 9, "manassavit vulneravit et verberavit"; note that in this action the

"vulneravit " 18 not justifiable and therefore must be traversed, otherwise under a plea of son assault demesne; 22 Ass. 102, pl. 76, is for actual beating, ag. gravated by carrying away timber of the plaintiff's (merimentum=materiamen, see Du Cange, s. v. materia; in Anglo-French meresme. In A. D. 1200 an action is recorded against one John de Mewie for deforcing the plaintiff of land which she had already recovered against him by judgment," so that no one dare till that land, because of him, nor could she deal with it in any way because of him." Select Civil Pleas, Selden Soc. 1890, ed. Baildon, vol. 1, pl. 7. Cp. Reg. Brev. (1595), 104a, "quando tenentes non audent morari super tenuris suis," and Tarleton v. McGawley (1794), 1 Peake, 270, 3 R. R. 689, action for deterring negroes on the coast of Africa from trading with plaintiff's ship.

Intimidation of servants and tenants. A person is liable, who for the purpose of injuring another and of inducing him to abandon a lease, persuaded and threatened his laborers so that they left him. Dickerson v. Dickson, 33 La. Ann. 1261. See, ante, p. 201. It is recognized as unlawful for strikers or others to interfere by threats, intimidation or coercion with the free will of workmen inducing them to leave the service of their employers. Rogers v. Evarts, 17 N. Y. S. 264; Perkins v. Rogg (Sup. Ct. Cin.), 28 Wkly. Law Bul. 32, see notes on CONSPIRACY. p. 287.