In a fubfequent cafe the daughter was thirty years of age and lived with her father as his fervant, but not upon any special contract of fervice, and it was held that the action would lie. In confequence of the opinion of the fuperior court in the cafe of Mott vs. Goddard, the plaintif brought forward an action of trefpafs on the cafe againt the defendant, for entering his houfe against bis mind and will, and debauching and begetting with child his daughter, and fervant, under his protection and dependant upon him for fupport; by which he lost her service, and was put to expence in fupporting her during her fickness, when she was delivered of a baftard child. The defendant pleaded in abatement that the daughter of the plaintiff was more than twenty-one years of age, poffeffed of a large eftate, able to fupport herself and child, and under no constraint of service to the plaintiff; and traversed the fact of her being the fervant of the plaintiff, and dependant on him for fupport, and also that he had been put to neceflary expence to fupport her and her child. On these facts iffue was closed and the jury found that the daughter was not the fervant of the plaintiff and dependant on him for fupport as he had alledged. On a motion in arreft, ftating for reafon that the iffue was immaterial, the court adjudged the motion to be infufficient; for the plaintiff had made the lofs of fervice and expence in fupporting his daughter, the gift of his action, which the jury have found not to be true. There can be no queftion, but that an action will lie as well in cafe of expences incurred by reafon of fickness, where the parent is bound to fupport, and the daughter is indigent, tho he is not entitled to her fervice, as where there is a lofs of fervice; for either, or both have been confidered as the ground of this action. But there is no authority to warrant an action merely for the infult and fcandal offered to the parent, and the injury done to his feelings; tho it must be acknowledged that this is the bittereft and heaviest part of the injury, and would form the strongest ground of action. It is a It is a question that does not belong to me to determine, whether it is best for fociety to furnish fuch a remedy to prevent the commiffion of injuries, which no pecuniary com 3 Wilfon 18. K penfation 'penfation can repair, or to leave it to parents to infil into the minds of their children, in their education, fentiments and principles, which will guard against feduction, and debauchery. In another cafe, the plaintiff in an action of trefpafs on the cafe declared, that his daughter and fervant under the age of twenty-one years, depended on him for fupport, was pregnant with a bastard child, and had commenced a prosecution against the brother of the defendant, for maintenance. That the defendant to defeat her action, procured for twenty pounds a ftranger to marry her, with the deceitful and fraudulent defign to procure a dif charge for his brother, which he effected. That the ftranger who married her, carried and kept her out of his fervice for a month, and left her deftitute and forlorn. That the General Affembly granted her a divorce, and declared the marriage null and void from the beginning. To this declaration there was demurrer, but adjudged fufficient, on the ground of the loss of the service, as the marriage being declared void from the beginning, could give no right to take the daughter out of the service of the plaintiff. 3. There are two injuries which a master may fuftain in refpect of his fervant. One is the enticing away, or retaining one's fervant, whether hired, or under any other obligation to ferve, before his time of fervice is expired; and the other is beating, or confining him in fuch a manner as difables him to perform his work. In regard to the firft injury, the mafter may have his action against the fervant for his breach of contract; or ke may have an action of trefpafs on the cafe against the perfon who induces and perfuades the fervant to violate his contract, by enticing him away, or retaining him from the fervice of his mafter, because he has legally entitled himself to the benefits of the labour of the fervant for the time limited, and whoever defeats him of that benefit, is a wrong doer, and muft make good the damages: but if the new mafter was not acquainted with the former contract, and delivers up the fervant on demand, he is liable to no action. a Mills vs. Hebert, Sap. G. 1794. 36 Black. Com. 142. In the cafe of beating and confining the fervant, so as to prevent' him from fulfiling his contract, and performing the fervice he owes, the fervant may have his action of trefpafs for the affault and battery, and falfe imprisonment; and the mafter may have his actionof trefpafs on the cafe for the fpecial damage he has fuftained by. the lofs of fervice; but it is neceffary to alledge, and prove a fpecial damage by lofs of fervice, otherwife no action lies. So if at man digs a pit in the highway, into which my fervant falls and breaks his limbs, or fo wounds him as to difable him from performing his fervice, action will lie for the lofs of fervice. So if. a man threatens my fervant, and in fear of battery he is prevented from performing fervice, action lies. CHAPTER SIXгя. OF ACTIONS FOR INJURIES THAT AFFECT THINGS REAL. THE injuries that affect things real are, 1. Diffeifin, 2. Refufal to make Partition, 3. Trefpafs, 4. Wafte, 5. Nuifance. 1. Diffeifin, difpofeffion, or outer may be defcribed to be where a perfon keeps and holds the poffeffion of lands to the exclufion of the rightful owner, for let the mode of acquiring the poffeffion by the trefpaffer, be whatever it will, he is in contemplation of law a diffeifor, while he keeps out of poffeffion him, who has the lawful right. If a man enters upon lands by turning the owner out of peffeffion, or of having the right of improvement for a term he holds over his term; or if on the death of the proprietor he enters before the heir, in every fuch inftance, and in every other fuppofable mode of gaining the poffeffion, and holding it wrongfully, he is deemed to be guilty of diffeiin. Whenever a perfon is the legal proprietor of lands, he has a right to make his entry upon them in a peaceable manner. In all cafes, where the proprietor of lands and tenements is diffeifed, or wrongfully holden, and kept out of poffeffion, an action of diffeifin lies for the recovery of the lands in question, and the daniages damages for the unjust detention. This is the only real action known to our laws, and as it is generally extending to every poffible cafe in which the poffeffion of land can be demanded, it is the only one that is neceffary. It is peculiar to this ftate, and was not introduced by statute, but by the practice of the courts of law. It is a capital improvement upon the common law refpecting real actions, and is a ftriking evidence of the propenfity of our progenitors, to improve upon and fimplify the laws of their native country. This action comprehends all the actions in England, by writ of right, writ of entry, and ejectment, with all the multifarious divifions, into which they were branched; of this vaft variety of actions which were perplexed and embarrassed with a thousand nice diftinctions and fictions, the fole object is to enable the owner of lands to recover the poffeffion from the diffeifor, and his dam. ages for the detention. As the object is fingle, tho attended by a variety of circumstances, our action of diffeifin is wifely calculated to attain this object under all circumftances. Upon no other fubject, has human ingenuity ever been exerted in every poffible fhape of refinement and diftinction, fo much as on the law in refpecting real actions. Nor was there ever an artificial fyftem of law more abftruce and intricate. But by a fingle stroke, the bafis of this artificial fabric is diffolved, and on the ruins of it, we have erected a structure, wonderful for its fimplicity and beauty. The fingle action of diffeifin, regulated by the plaineft principles, is much better calculated to answer the purpose of real actions than all the actions which have been devised in England. It avoids all the circuity and fiction of the action of ejectment, which has in a great measure fuperceded the antient real actions in England, and by which the title of lands is now generally tried, and determined. It is calculated to bring the fingle question of property fairly and directly upon trial, unembarraffed by technical forms. Every person who is the proprietor of lands or tenements, or is entitled to their ufe and improvement, may bring this action to recover their poffeffion. The plaintiff muft ftate in his declaration his title, whether it be an estate in fee fimple or any lesser estate. The land must be fo defcribed by lines and bounds as to afcertain ad diftinguish it from any other land with precifion; but whether it be arable, mowing, or woodland, need not be mentioned. The plaintiff declares that he was feifed and poffeffed of the demanded premises on a day certain, and that afterwards, on fome day, the defendant, entered thereon, diffeifed the plaintiff thereof, and put him out therefrom, and that he has ever fince continued to deforce the plaintiff thereof, and hold him out therefrom, taking the whole profits to himself, and then the plaintiff demands the feifin of the land, which is effential, and his damages for in this action, the plaintiff is not only entitled to recover the seifin of the land, but his damages for the detention. Tho he alledges a feifin and poffeffion of the lands demanded; yet there is no neceffity of proving that he ever had actual poffeffion. He must prove the defendant to be in poffeffion; and then the whole question will turn upon the point of right and if he can prove a good title, tho he never had poffeffion, he fupports his action, This action may be brought against any perfon who is in the actual poffeffion and improvement of the lands. If a tenant be in poffeffion under fome perfon, who claims to be the proprietor, he may defend by force of his title, or may admit the tenant to defend in his name. When the action is thus commenced, upon the general iffae of not guilty, the parties have a fair opportunity of deciding the title to the lands. The plaintiff muft recover by the ftrength of his own title, and not by the weakness of the defendant's. It therefore behoves him to fhew, not only that he has a better title than the defendant, but that he has a compleat legal title, and on failure he cannot recover, let the title of the defendant be ever fo defective. The nature of titles to real property has been fully difcuffed in the precedir.g book of our enquires, and the principles there unfolded muft be applied in the trial of thisaction. It is therefore unneceffàry to enlarge upon that fubject in this place. The action of diffeifin is confidered of as high a nature, as the writ of right by the common law, for it is a bar to another action for the fame land. Therefore when there has been one trial upon the fame title, between the fame parties, or their tenants, • Porter vs. Warner, Sup. C. 1797, holding. |