#### M'Clure’s executors *v*. Miller.

. , From Rutherford.

An action by a father for the seduction of his daughter, abates by the death of the father, and cannot be revived by his executors.

This was an action on the *case,*brought by *Arthur M'Clure*against the defendant for the seduction of his daughter.

After the cause was at issue, *Arthur M‘Clure*died, his1 death was suggested on the record, and his executors were made parties; and at the last term, when the cause was reached in order, Nash, Judge, who presided, upon motion of defendant’s counsel to dismiss, held, that by the death of *Arthur McClure*the suit had abated, and gave judgment accordingly; whereupon the executors appealed. ' -

*Carson,*for appellants. —

The question is, whether an action for loss of the services of a servant abates by the death of either party. There is no difference in principle *134between this action and any other for the los.s of service/. In the case of *Bennet*v. *Mlcot,*(2 Term *R.*168.) Justice *Butter*says, that it is perfectly settled since the case of *Rostlethwaite*v. *Parks,*(3 *Burr.*1878.) that the action will not lie by the father, unless the daughter be proved in some way or other his servant: slight services will do, milking cows, &c. In the case of *Edmondson*v, *Machcll,*(2 *Term R.*4.) the seduction happened while the daughter was on a visit to her mother, yet being the servant of her aunt, the action was brought in the aunt’s name.

*Paley,*in his Moral Philosophy, says, the injury is threefold, to the woman, to her family, and to the public, but that, by the English law, no redress is given except to the family for loss of service.

In considering whether this is one of that class of cases which may be revived under the statute, the Court would not be influenced by any circumstances going to show it to be one of more or less aggravation, it has nothing to do with it. The first act which is here material, is that of 1797, *(New Rev. eh.*532.) No action of detinue or trover, or action of trespass where property either real or personal is in contest, and such action of trespass is not merely vindictive, shall in any cause or court abate by the death of either party. This is amended by the act of 1805, *(New Rev. eh.*679.) Whereas doubts are entertained whether, by the above recited act, actions for injury done to real or personal property can be revived, where the property itself shall not be. in dispute; be it enacted, that no action of trespass *vi et armis,*or on the case to recover damages done to property either real or personal, shall abate by the death of either plaintiff or defendant. And it would seem clear that withholding or destroying the services of one’s servant, is an injury to personal property within the meaning of this act.

We have no other property in our slaves, but their services; and an action for the loss of those services, has been held to be within the words of the act in the case of *135*McAllister's administrator*v. *Spiller's executor. (Cor>£. R.*91.)

If it should be said, that this is an action given to the parent to repair his wounded sensibility, and that the legislature meant to exclude it when they named trover, detinue, &c.; it may be answered, that,this would be giving to the act, which requires a liberal construction, a very limited one. The words in the'body of the act embrace this case unequivocally, and go farther than the preamble; *all injuries*done to *property*either real or *personal.*The services of a servant are doubtless property personal, and their loss is an injury: the words *real*and *personal*as here applied to property, are used in their strict legal sense, and intended to embrace every species of property, to the enjoyment of which one may be entitled, and in being deprived of which he may be injured. The preamble of the act cannot, on any admitted mile of construction, control the plain declarations of the enacting clause. If the words, *real*and personal, be omitted, the act would read thus, all injuries to property, &c. and then there could be no doubt, because services are property.

The failure of actions by the death of parties was viewed as a mischief, and the legislature has manifested its solicitude to cure the evil; the construction ought, there,fore, to aid, and not thwart their views.

The stat. 4 *Ed.*3. made for a like purpose with our own, has always been liberally construed. *Wheatly*v. *Lane,*(1 *Sannd.*216. *note.)*

As to the construction to be put on our statutes, see farther, *Brown*v. *Blick,*(3 *Murph. R.*511.)

*Wilson,*contra,

insisted that this was such an action as the legislature meant to include under the phrase *vindictive,*and consequently could not be revived.

Tayuor, Chief Justice. —

This case depends upon the construction of the act of 1805, *ch. 679.;*the words erf *136which, so far as they relate to this case, are. “ that no ac^ot1 on the case for damage done to personal property, shall abate by the death of either plaintiff or defendant.”

This is an action on the case, brought by a father for the seduction of his daughter, and the question is, has it abated by his death ? Considering the nature of the action, and the extent of injury and suffering which usually follow the crime of seduction, I should be gratified to discover a satisfactory ground for the opinion that the action might be revived. I think the plaintiff’s counsel has presented the case in the strongest point of view it admits of; yet after all it must be admitted, that the action is but in form and sound for an injury done to property, but is in substance for a wrong done to the person of the child, and to obtain satisfaction for the wounded feelings of the parent. The loss of service is in most cases imaginary; for though some evidence must be given of acts of service to satisfy the form, yet in the estimate of damages the jury usually look beyond this to the injury done the child. The *probata*are much more extensive than the *allegata,*and damages may be given as a compensation for the loss which the father has sustained, in being deprived of the society and comfort of his child, and for the dishonor which he receives. Hence evidence is admissible, as to the circumstances of the father’s family, their general good conduct, and the number of his children. Actions of this sort are brought for example sake; and although the plaintiff’s loss may not amount to twenty shillings, the jury da right in giving liberal damages, (3 *Wills.*19.)

It is said, in the case of *Bedford*v. *M'Kowl,*that, “ in point of form, the action only purports to give a recom-pence for loss of service; but we cannot shut our eyes to the fact, that this is an action brought by a parent for an injury to his child; in such a case I am of opinion, the jury may take into their consideration all that he can feel from the nature of the loss. They may look upon him *137as a parent losing the comfort as well as service of his daughter, in whose virtue he can feel no consolation, and as the parent of other children whose morals may be corrupted by her example.” (3 *Esp. R.*119..)

As the child herself has no remedy, and the offence is only indictable under peculiar circumstances, it would pass with impunity, were not these forced circumstances employed to give the Courts cognizance. It is characterized by a sensible writer as one of the quaintest fictions in the world, that satisfaction can only be come at by the father’s bringing the action against the seducer, for the loss of his daughter’s service, during her pregnancy and nurturing. *(Paley, Mor. Phil.*200.)

From these considerations, it appears to me that this action must be considered as a tort done to the person, unaccompanied by any injury to personal property, and it is accordingly so classed by writers on pleading, (2 *Ghitty*268.) it is therefore abated by the plaintiff’s death.

Haxx, Judge. —

The sole question here is, whether this action survives to the plaintiffs, or abates by the death of their intestate. There is no doubt but it abated at common law. By the act of 1799, *JV*e-tv Rev. ch.*532. it is declared that no action of detinue, or trover, or action of trespass, where property either real or personal is in contest, and such action of trespass is not merely vindictive, shall abate, ¿See. by the death of cither party, but the same may be revived, *&c.*The present action is one in form brought to recover damages for the loss of the services of the daughter; but it is in substance brought, to recover damages, for the disgrace, and degradation of which the defendant is the author. In this view of it, which' I think we must unavoidably take, it does not involve in it a contest respecting either real or personal property; and I think, too, that the damages are, legally speaking, vindictive, for they cannot be measured by any injury which *property*may have sustained, but are dependent *138altogether, under the circumstances of the case, upon a sound discretion, intended to make reparation to the in- ,• jured party as far as human tribunals *can*do it, lor com-reparatran in such cases is beyond their reach.

The next and only other act on the subject was passed in the year 1805, *Werw Rev. ch.*679. It declares that no - action of trespass *vi et armis,*or trespass on the case, &c. brought to recover damages done to property either real' or personal, shall abate by the death of either plaintiff or defendant, &c. but the same may be revived. If we consider this action in substance as brought to recover vindictive damages, as mentioned in the act of 1799, it is not made to survive by this latter act, for *it*is not brought for an injury done 8» either real or personal property. I, therefore, think it will not survive, but abates by the death of the plaintiff. The judgment of the Superior Court must be affirmed.

Judge Henderson assented,

Judgment affirmed.

There is one part of the foregoing case on which no question was made, but which does not seem entirely free from doubt. The action brought was *case,*notwithstanding some of the most respectaMe authorities hold *trespass*to be the proper form of action. In. the case of *Woodard*v. *Walton,*(2 *New Rep.*476.) the action was' *trespass,*and upon full argument, and after an *advisari*it was held to be proper. Sir *James Mansfield*remarks, in delivering the opinion of the Court, “in actions like the present, as far as my recollection goes, the form of the declaration has always been in *trespass vi et armis*and *cmitra pa-seem.*I’ cannot distinguish between this action, and an action for criminal conversation. If that be the subject of trespass, this must be so too.” It is true, that Mr. Justice *Buller,*in *Rennet*v. *Allcot,*(2 *Term Rep.*166.) said, that “an action merely for debauching a man’s daughter, by which he loses her service, is an action on the *case.”*This case is commented- on by Sir *J. Mansfield,*in *Woodard*v. *Walton,*and it is there said, that the opinion thrown out by Justice *Butter*Was founded on a mistake respecting two' other cases, one in *Burro-to*and the other in Lord *Raymond.*The case in *Burrow*was *Postlethwait v. Parks,*(3 *Burr.*1878.) and was *trespass,-*and the case of *Russel*v. *Corne,*(2 *Ld. Raym.*1031.) is certainly rather in favor of *trespass*than against it-The case of *Tullidge v. Wade, (3*Wills. 18.) was *trespass,*He ever, *139in the case of *Macfadzen*v. *Olivant,*(6 *East*387) Lord *Ettenborough*seemed to consider *case*as the proper remedy for seducing plaintiff's Wife, on the authority of *Cook*v. *Sayer,*(2 *Burr.*753.) but the case of *Cook*v. *Sayer*is stated by *Burrow*to have been trespass„• and in *Batch-*case before the Court of King’s Bench for seducing a daughter, *Speight*v. *Oliviera,*(2 *Starkie*493 ) decided in 1819, it was objected that the action should be trespass and not case, to which *Abbot,*C. J. replied, that he would not nonsuit upon that objection.

Amid these contradictory decisions, adverting to principle, it would seem that *case,*and not *trespass,*is the proper remedy. The injury which the *law*contemplates as entitled to redress, is *consequential,*for it is believed no case can be found of an action, brought for debauching plaintiff’s daughter without laying a *per quod,*and some proof of service is always required, though the Courts will gladly tafee notice of the slightest. Simply to debauch plaintiff’s daughter, without her becoming thereby pregnant, is to the feelings of the parent, a wound little, if any, less severe, than that inflicted by Iter becoming the mother of an illegitimate child; but as this action in its foTtns has been well characterised as a quaint fiction to recover compensation for wounded sensibility, the fiction must be so preserved throughout, that the law may preserve its principles unimpaired; and as the consequential injury in the loss of service has been resorted to, to furnish any ground for an action, that consequential injury, like every other, cat) only be redressed by an action on the *case.*

It is true that Sir *J. Mansfield*has said, “ I cannot distinguish between this action, and an action for criminal conversation;” but (with deference be it spoken) it would seem, that however slight the difference may be as to the feelings of those who are' injured, in the view of the jurist, the injuries belong to distinct classes. Lord *Ettenborough,*in the case of *Macfadzen*v. *Olivant,*(6 *East*388.) thus speaks of actions for crim. com.: “ the cause -of action *in these cases,*arises from-the time of the injury done by the defendant, by *the corruption of the body and mind of the wife;*for from that time she is less qualified to perform the duties of the marriage slate.” The injury which the law redresses would seem then, in these cases, to be *immediate*on the commission of the guilty act; and of course *trespass*is proper. A single act of adultery, though never manifested in its consequences, is an invasion of the husband’s rights, and the law redresses it; but in actions for the seduction of a daughter, the * quaint fiction’ of a *loss of service*seems, *ab initio,*to have been resorted to as the consequential injury which the law will compensate, without any reference to w the corruption of body and mind,” which is the immediate injury complained of in an action for crim. con.

It is very correctly remarked by the plaintiff's counsel,in the asqpiv *140ment of the foregoing case, that there is no difference in principle be* tween this action, and any other for the los9 of service; they roust all stand on the same ground. Suppose the case of an apprentice seduced from tho service of his master by persuasion; can a case be found in which, under such circumstances, *trespass*will lie! No force, diTect or immediate, is employed; the mere act of conversing with the appren? tice is not of *itself*the foundation of an action, for should the servant not be prevailed on to leave his master, no injury results and no action lies; but if, being a free agent, he departs, it is his *voluntary*act, and his master cannot truly allege that his servant, by any force, (in legal signification,) has been taken away. His departure, and the master’s loss of service, is the *consequence*of an act which in itself would not have supported an action, and the master’s remedy is *case.*So in the case of the loss of service by seducing the daughter, *her-consent*must have been given, and it was her *voluntary*act, and her father, in the forms of his suit, loses the character of a *parent*and appears only as a *master,*complaining of an injury resulting as a consequence from this act of her’s, which must have been voluntarily done, though at the solicitation of another.

If to this it be objected, that in a ease of crim. con. the wife, who is a servant, *consents,*and yet her husband may have *trespass;*it may be answered, that the case is one *sui generis;*the husband has, so to speak, a property in the body, a.right to the personal enjoyment of bis wife; for an invasion of this right, the law permits him to sue as *husband;*he makes no complaint as *master.*Ear different is the case of seduction of a daughter; her father has no such rights over her person, as he has over the person of his wife; he makes no complaint but in the character of *master,*and the injury sustained by debauching his wife, is such as never could be effected by the seduction of his daughter.