Nov. 19, 1859-REPORTS.] C. B.] DINGLE v. HARE. of selling goods with a warranty, in reliance upon a warranty by the person from whom he purchased them, can be recovered from the person who sold them to him, and are not too remote. This case was tried at Guildhall on 18th May, before Byles, J. [C. B. The plaintiff replied to the above letter desiring to be released from his contract respecting the blood manure, and then Mr. Wilson writes the following letter "Feb. 10, 1857. to him : "Dear Sir, - By your letter you seem to entirely I cannot release you from the blood mistake me. manure but on the terms named, viz. that I send you twenty tons superphosphates instead, and then I must take and pay for the blood manure myself, and sell it to another party if possible. To finish the matter, have put you down for twenty tons of superphosphates (and so release you from the blood manure) at 51. 5s. per ton, f. o. b., London. The superphosphates will be 30 per cent. phosphate of lime, same as the quality Mr. Bishop bought in London, &c." The plaintiff replied to this letter, accepting Wilson's offer, and received from him the following letter in "Feb. 16, 1857. reply: The declaration stated that on the 1st Feb. 1857 the defendant agreed to sell and sold to the plaintiff, and the plaintiff at the request of the defendant bargained for and agreed to buy and bought of the defendant twenty tons of superphosphates, guaranteed by the defendant to contain 30 per cent. of phosphate of lime, at the price of 51. 58. per ton, free on board, payment to be made by the plaintiff's acceptance at three months' date or in cash on delivery 14 per cent., and although the defendant delivered to the plaintiff certain superphosphates as and being the article so bargained for as aforesaid, yet the said superphosphates did not contain 30 per cent. of phosphate of lime, but only a far smaller proportion thereof, whereby the same "Dear Sir, Your favour of the 12th has been was of much less value to the plaintiff than it would to me, and, in accordance therewith, otherwise have been; and the plaintiff says that he, forwarded relying on the due fulfilment of the said bargain by twenty tons of the superphosphate of lime from my the defendant, and not knowing that the said super-friends Messrs. Philip, Hare and Co., 36, Mark-lane, phosphates did not contain 30 per cent. of phos- London, shall be sent to you in lieu of the blood manure." phate of lime, and believing and having reason to believe the contrary, resold a portion thereof to one Joseph Robins as and being such superphosphates, containing 30 per cent. of phosphate of lime, and that afterwards and before suit he, the plaintiff, was compelled by reason of the premises to compensate the said Joseph Robins for and in respect of the said deficiency of phosphate of lime in the said superphosphates so sold to him as aforesaid; and the plaintiff claims 1007. Pleas-1. That the defendant did not contract with the plaintiff as alleged. 2. That the said superphosphates delivered by the defendant to the plaintiff as in the declaration mentioned did contain 30 per cent. phosphate of lime according to the said contract. It appeared at the trial that the defendant was a dealer in artificial manures, and in the year 1857 he employed as his agent in the sale of manure a person of the name of Wilson, who was also an agent for the Blood Manure Company. As agent for the latter company, Wilson had sold to the plaintiff some blood manure, with which the plaintiff appeared not to be satisfied; and the plaintiff, who is also a dealer in manure, had complained to Wilson respecting this blood manure. In consequence of such complaint, Wilson Awrote to the plaintiff as follows: - There was further correspondence between the parties, during which the plaintiff received from Wilson certain pretended analyses of the manure, and twenty tons of the manure were finally sent to the plaintiff. When the manure arrived it was found that ten tons of it were of a grey powder, and ten of a black powder. The grey The plaintiff afterwards disposed of the whole of Of the black manure a the manure among various customers. manure turned out well. Mr. Robins, a farmer, purchased 2 tons, 3 cwt. 3 qrs. and 13 lbs., which he used on his farm. It turned out badly, and Robins claimed compensation from plaintiff, The plaintiff wrote to who had sold the manure to Robins as containing 30 per cent. of phosphates. the defendant, under the name of Philip, Hare and Co., about the matter, and a correspondence took place between them, in which the defendants recognised Wilson as their agent for the sale of manure, but denied that he had any authority to guarantee. The plaintiff afterwards investigated the claim of Mr. Robins, and agreed to allow him the sum of 201. as a compensation. A sample of the manure sold to Robins was afterwards analysed by Dr. Voelcker, who, in a "You letter stating the result of his analysis, says, will perceive, as is no wonder, that such a manure gave no satisfaction, for it scarcely contains any soluble phosphate, and only 6 per cent. of bone earth "Dear Sir,-In reply to your favour of the 2nd or insoluble phosphate, and little more than a half per inst., I can only refer you to my previous letters, but I cent. of ammonia; on the other hand a great deal of cannot understand how it is that you are the only and gypsum, much sand and salt, all cheap materials." single exception in complaining of the blood manure. I The manure was not worth more than two guineas per This action was afterwards brought to recover am confident there must be some mistake in the matter, ton. or it has not been properly applied; however, as you do damages from the defendant for the loss occasioned to not want the manure, leave the matter with me, and I the plaintiff by the manure being of so inferior a The points made at the trial for the Will you take twenty quality. will try to get out of it for you. tons superphosphates instead? Guaranteed 30 per cent. defendant were that Wilson was not authorised to guarantee the quality of phosphate of best quality, and just the same as I sent by the defendant you last year. As a matter of course, for my own sake, the manure, and that the defendant, therefore, to secure your orders for another season, I should send was not liable; and further, that the contract, as you an article inferior to none, and which on trial you shown by the letters, was a contract with Wilson pershould find equal to Lawes' or any other. Now this is sonally, who was to change this manure for the blood truth-price per ton, 51. 5s., f. o. b., three months' manure, and that the contract, therefore, was not a will, if contract by him as agent for the defendant. The acceptance, or cash, less one and a quarter. learned judge told the jury that they must find that there was a warranty on the part of the defendant, and gave the defendant leave to move to enter the verdict for him on that issue. In the course of his summing up, he asked the defendant whether it was usual to The plaintiff was then asked the sell these manures with a warranty. The defendant said it was not. same question, and he said it was; and that no mer "Feb. 4, 1857. I I can, send you ten tons of the bone phosphate to C. B.] BAYNE. HARE. [Ex. chant would buy them without. The learned judge contain two separate contracts on the part of Wilson: finally left these questions to the jury:- Was there anyone, that he will take back the blood manure; and authority to guarantee? Are these manures ordinarily another, for the sale by him of the superphosphates as sold with a warranty? As to the damages he left it agent for the defendant. Those contracts are quite to them to say whether the goods were of a merchant- distinct, and the question is, whether he was authoable quality, and, if so, what they were really worth, rised by the defendant to warrant the superphos and to fix the dainages to which they thought plaintiff phates. I should think that there was a strong preentitled. The jury answered all the questions in sumption that a person generally authorised to sell an favour of the plaintiff, and they gave him 301. as article on behalf of another is authorised to warrant it. damages; being, as they stated, the difference between But besides that, there is a great deal of evidence that the actual value of the 10 tons and the price at which he was authorised. Wilson was not called, and I it was sold. A rule was afterwards obtained by think there was evidence to go to the jury that he had O'Malley, Q.C., calling upon plaintiff to show cause authority to warrant. Then as to the damages, the why the verdict should not be set aside and a verdict notion in my mind is, that a person who sells to entered for the defendant; or why the damages should another to sell again is answerable to him if an action not be reduced by the sum of 201., pursuant to leave is brought against him for selling an inferior article. reserved, on the grounds that there was no evidence to But we do not put it on that ground. The manure go to the jury in support of the first issue; that, upon was analysed, and there was abundant reason for the a fair construction of the contract made by Wilson, it jury finding the damages they did, being the difference ought not to be held that Wilson made the warranty on between what the goods were sold to the plaintiff for behalf of the defendant; and that the damages were not and their real value. warranted by the evidence. Huddleston, Q.C. and Prentice showed cause against the rule. There is no doubt there was a warranty by Wilson; and, as to that, the question was, was he authorised to warrant by Hare. The jury have found that he was authorised, and the only question now is, was there any evidence to warrant the finding of the jury? The defendant said he never authorised Wilson to sell with a warranty, but expressly told him not to do so. Wilson was not called. The defendant also said that it was not usual to sell superphosphates with a warranty; the plaintiff said it was, and that merchants would not buy it without; and the jury found that such manure was usually sold with a warranty. Then, although Wilson was an agent both for the defendant and the Blood Manure Company, and offered to take back from the plaintiff the blood manure on condition that the plaintiff would take the superphosphates, he was making two distinct contracts, one of which he was making as agent for the defendant. (They cited Addison on Contracts, 4th ed. 632; and Jones v. Robinson, 1 Ex. 454.) As to the point made by the defendant, that the damages are too remote, the case of Hudley v. Burendale, 9 Ex. 341, and the cases which follow it, show that damages may be given for a loss which might be in the contemplation of the parties at the time of the contract. (They cited upon this, Smeed v. Foord, 28 L. J. 178, Q.B.; Mainwaring v. Brandon, 8 Taunt.; and Portman v. Middleton, 4 C. B., N S. 322.) The plaintiff was a dealer in manure, and it must be taken to have been in the contemplation of the parties that he would sell the manure again. O'Malley and Lewis in support of the rule.-As to the damages, ten tons only of the manure were inferior; those were sold to different persons. In the case of two tons he had to pay money to Robins, in the case of the others he had to pay nothing. [BYLES, J.-He may still have to pay to the others. ERLE, C.J.-And this matter might do him a great injury among the farmers.] As to the warranty, the defendant is attempted to be made out the principal and agent; in the same contract he is principal as taking back the blood manure, and they say he is an agent in respect of the sale of the superphosphate. cannot be principal and agent in the same contract. If Wilson was not authorised by the defendant to give the guarantee, the defendant is not bound. A private person who sends his servant with a horse to be sold in a market, is not bound by the servant giving a warranty without authority from him: (Governor and Company of the Bank of Scotland v. Watson, Dowes' H. of L. Cas. 40.) A man ERLE, C.J.-I am of opinion that this rule ought to be discharged. I am of opinion that the letters CROWDER, J.-I am of the same opinion. It is said that this was entirely Wilson's contract, but it appears that Wilson contracted to supply the plaintiff with these superphosphates and to take back the blood manure. Then the sale of the superphosphates took place entirely through Wilson. He was agent to the defendant in selling them. It is said that he had no authority to guarantee, and that there was no evidence of such authority; that the plaintiff and defendant were asked whether it was usual to warrant this manure; the defendant said it was not, the plaintiff' said it was, and the jury have found that it was usual. Then Wilson was authorised to sell, and must be taken to be authorised to do what is us al in such sales. I think, therefore, there was a warranty on which defendant was liable, and we are induced rather to believe this, Wilson not being called as a witness. As to the damages, I think the jury were right in finding the damages they did. BYLES, J.-I am of the same opinion. First, with respect to the letters, they really show that the agent, who was agent for two distinct parties, was willing on the part of principal A. to make a bargain with the plaintiff if he would also make a bargain with him as agent of principal B. Then the evidence shows that the defendant ratified some of the terins of the bargain, for he acted on it. It might therefore be inferred that Wilson had communicated to him all the terms of the bargain. It is true defendant denies that he gave Wilson anthority to give a warranty. The jury might not have believed him. When a man has no authority from his principal, but has the semblance of authority communicated to him by his principal, upon which other people act, then the principal is bound by the contract of the agent. The jury have chosen as the measure of the damages the difference between the contract price and the value, and I think that is correct. Rule discharged. COURT OF EXCHEQUER. Friday, Nov. 4. BAYNE v. HARE. I O U given as a guarantee or an actual payment—- This was an action upon an IO U for 30%. under these circumstances:-The plaintiff was mortgagee of a certain leasehold paper-mill and premises, near Tottenham. Defendant's brother was second mortgagee. Rent being in arrear at Michaelmas, the land Nov. 19, 1859-REPORTS.] Ex.] BAYNE v. HARE [Ex. lord subsequently distrained; and on the 23rd Dec., Parry, Serjt. now moved accordingly, and also on Parry says no, that is not the right view of the case: that the true view of the case is that the IO U does not mean "I do owe you;" but it meant that, if the plaintiff on realising his security should not have enough to pay him what was originally advanced and the 30%., part of the 607., then the defendant would repay him to the extent of 307.; in other words, instead of being "I owe you," it should have been "I shall owe you up to 301., provided you do not realise enough to secure the 601. you advanced, the original sum due to you." If there were any plausible ground for saying that that was the transaction in fact, be would open to the contention I think it If the real that the document is an IO U, because it is account stated. The pro- only evidence of an It is said that the transaction was not an account stated, the defendant would be at liberty to show it. facts do not warrant that contention on the part of the defendant, because there is evidence that the plaintiff undertook that he would not enforce this I O U if he realised enough aliunde to pay the debt; but to my mind there is no satisfactory evidence on which the jury ought to have found that it was anything in the shape of an undertaking on the part of the defendant. I view as a-what shall say-not an honourable enNov. 5.-POLLOCK, C.B. delivered judgment.-Igagement, because he was under no obligation to make There is it; but I view it more in the nature of a sort of pro"You are not a am of opinion that there should be no rule. no occasion for an amendment of the declaration. I mise that a fair man would make : think that under the circumstances of this case the debtor here, and I will not make you pay unless there money may be recovered upon the account stated. The is a necessity for it." That is what everybody ought to question is, whether the IO U was given as a guaran- do perhaps without saying so; and I do not think the tee only or as an actual payment; and after hearing expression he is supposed to have used amounted to the notes read, I am of opinion it is abundantly clear anything more than that. That is my view of it; but but I am so satisfied that if that it was originally given in substitution of money as I am inclined to think, on the evidence, this question was scarcely open; an actual payment and as part of the 607. intended to be paid. It was given as an IOU to represent so there was a trifie of evidence, or there was a trifle on much money, not as a guarantee, in which case, no which the jury ought not to have acted, I feel so doubt, if that had been the case, it would have been strongly the inconvenience of a man who, like the void, but given as an actual payment of so much defendant, ought to know better, giving a document money; and I think what was suggested as passing and then saying, "I do not mean what it purports to between these parties about not enforcing it if the mean," that it seems to me the jury ought not to have money was obtained elsewhere, does not at all vary the acted on it. original terms on which it was given. And I must say I think there was nothing to leave to the jury upon which there was any pretence for their finding that this was given as a guarantee. It is suggested that that point ought to have been put to the jury. There is no note of anything of the kind on my brother Martin's note of the evidence; if it had been put, in my judgment, the jury clearly ought to have found that it was given as a payment, and to represent so much a guarantee; and there being money, and not as nothing on the learned judge's notes of the trial from which we could infer that the question was raised at all at the trial, I do not think we ought to interfere and grant a rule in order that that may be put which, if it were put, I think ought to be answered that it was not a guarantee intended for the payment of the money. BRAMWELL, B.-I am of the same opinion. I understand the facts of the case to be these:-The plaintiff had taken possession of some property; the defendant desired, no matter for what reason, that it should not be removed; the plaintiff was willing that it should not be removed provided a sum of 607. he (the plaintiff) had advanced to pay some rent due to the owner of the premises where the goods were, should be reimbursed to him, and the defendant was willing to reimburse ot him the 60%. in consideration of the plaintiff not removing the goods, but he had not got the entire money to do it with; accordingly, they agree that the defendant shall reimburse the plaintiff the GO., but in this way, that he should pay 307. down, and owe the other 307; accordingly he gives the IO U. That view of the case, to my mind, makes the whole transaction consistent with the written document. My brother Even if there had been legal evidence that they might do so, I should not like to decide that Ex.] BAYNE HARE. for interfering. I wish to say the ground of my judgment is this: here is the IO U, if you suppose the transaction to be, "I will pay you 607., and, having got 30., I owe you 307," it is intelligible. WATSON, B.-I am entirely of the same opinion, and never had the slightest doubt upon it. The case was this:-A sum of 607. had been paid; the defendant was to pay 607. to the plaintiff in consideration that he would not remove the goods; he was not prepared to pay 607., he paid 30%. in money, and for the other 30. he gave an IO U. These IO U's have been very common, and sometimes they are meant as a sort of security; in this case it is actually given instead of the 301. being paid, the IOU is given for it. That is the result of the evidence, and it is clear the plaintiff is entitled to recover upon it. The next question is this-and this is the point my brother Martin reserved-whether this could be recovered on an account stated under the circumstances. All I can say is, if it cannot be recovered on an account stated, it cannot be recovered at all; if he owed that 30. under the promise he had made, and this represented the acknowledgment of the money being due, is that not an account stated? If that was not the transaction, but it was a guarantee, he could not recover at all, because there is no medium; the Statute of Frauds has nothing to do with it. It is a complete transaction; instead of money being paid, it is a matter to take place, about which this is the representative of money. It was held in many instances where a person acknowledges a debt, as used to be the case of bills of exchange for a long period of time, where the slightest variance defeated the plaintiff's claim, the acknowledgment of the debt was held to be an account stated, and it is a grievance of the law that these minute objections should prevail. I find it very clearly laid down in Highmore v. Primrose, 5 M. & S. 85, that an acknowledgment of a debt is evidence of an account stated. An account stated does not mean divers sums of money, as Holroyd, J. says; it is an acknowledgment of an account admitted. Then, as to the other point, on the evidence it is this, that after he had given his acknowledgment, this I OU, he said, "Do not enforce this until you have sold all the things;" on which he said, "I shall not enforce it until I have sold all the things," and the other person says much the same thing; he then understood everything was sold: "I sold all the things." That is not to qualify the engagement of the party. It is merely a concession made on the part of the plaintiff that he would be indulgent towards him, and see what the goods realised, and not put it in force. That is the whole account of it. What is that to leave to the jury? Are you to leave it to the jury to say the parties did not mean what they have said they do mean? Then look again what a state we should get into. Here the plaintiff says this lease was of no value; the object is to realise money; the defendant says it was of some value. What value? A farthing, what? Was it worth the expense of putting it up? Nothing of the kind. We should get into a strange muddle if we were to take that as matter for a jury which was really not a matter for them. Then there is another thing you inust do; unless there is some note of an objection of that kind, the court cannot entertain the motion. I dare say my brother Martin answered, "There is nothing for the jury;" and nothing more was said upon the subject- -no note by himself that he raised such an objection-no note that there was such an objection made; for this reason, that the parties did not persevere in it. Unless I can see that such an objection was intended to be made and insisted on, we cannot entertain it. It would have been on my brother Martin's note if really raised; but there is no note on the brief that he refused to do so. I think it or | [Ex. would be a great injustice to the parties if we were to entertain the motion on that ground. MARTIN, B.-I think the rule ought to be refused.. The facts of the case were these:-The plaintiff had obtained a mortgage on leasehold premises and the property upon it-of a paper-mill near Tottenhamand it seems that the defendant Hare had a brother, who had advanced money on a second mortgage of it. The premises were leasehold premises, and subject to a rent. The Michaelmas quarter's rent becaine due; and previous to the 23rd Dec., the landlord distrained for the rent. On the 23rd Dec. an agent of the plaintiff, being desirous to prevent the property being sold under a distress, paid the rent, amounting to 60%.; and, another quarter's rent being about to fall due at Christmas, he declared his intention of removing the property from the mill, and the defendant, thinking it would be injurious to his brother, came to him to request him not to do so. He stated he would do so except he was paid the 607. he had paid to the landlord for the rent upon that morning; and thereupon the defendant stated that he had not the means of paying the whole 601., but had the means of paying 30%., and did pay 307., and he gave an IOU for the other 30%. Another question was, whether or not the bargain was this-that this 307. was not to be enforced until the property was realised and sold. These are the facts of the case, and, as far as I can see, there is no difference whatever in the statement made by the witnesses on the one side and the witnesses on the other, except as to the value of the lease, for the property was all sold; the plaintiff's witnesses said it would be worth nothing, and the defendant said the lease would fetch something. That is the only point on which there is any difference in the evidence. Now, my brother Parry moved, and made three objections. He first stated that this transaction was a case under the 4th section of the Statute of Frauds, that the contract itself not being in writing was not enforcible. Now, assuming for the purpose of argument, when a person does enter into a contract which is within the 4th section of the Statute of Frauds, but thinks proper to give an IO U-which means a then present existing debt, and that takes the case out of the statute-assuming that to be so, and that there must be an agreement in writing, or a document in writing, under the 4th section, if the contract itself is within that section, I am clearly of opinion that the real contract between these parties is no more within that section than any other contract that can by possibility be imagined. The 4th section enacts that, after a given day, no action shall be brought whereby to charge the defendant on any special promise to answer for the debt, default or miscarriage of another person;" and ever since the enactment of that Act of Parliament it has been uniformly held that for the purpose of bringing a contract within that enactment, it must be a promise directly to answer for the debt, default, or miscarriage of another, and the circumstances of the contract heredo not bring the case within the statute at all. case it is perfectly clear the contract was the original contract that is described; the 607. the plaintiff had paid on the morning of that day shall have reference to no other liability of any sort; but the simple object was, "in consideration of you not removing the goods on the premises, I undertake to repay you 60%. you paid this morning." That is nothing more than a perfectly independent contract, and the circumstance that it would release part of the 60l. would not have· the effect of bringing it within this section. next it is said that there should have been a special. count, and I reserved that point for Mr. Gibbons, for I find "leave to move on an objection to the declaration." But, as to that point, I am clearly of opinion that this account stated will do, because the party has thought fit himself to make it in writing as an accomplished thing, as a debt existing at the time at which he says, In this Then Ex.] THOMPSON r. Ross. [Ex. the defendant on the second issue, that the daughter of the plaintiff so alleged to have been seduced was not the servant of the plaintiff. A rule nisi having been obtained accordingly, "I owe you that money," and doing that it seems he has | own mother in the making of those shirts. The cause for himself stated an account. If you look to the was tried in Middlesex before the Lord Chief Baron, whole form of the count on the account stated you will when a verdict was found for the plaintiff, damages find this to be the form, that the person being liable 50l., leave being reserved to the defendant to move to he entered into an agreement with the party and un-set the same aside and enter a nonsuit, or a verdict for dertook to take a certain sum of money. I do not say there might not have been a count on the special facts of the case. I think it is clear now that the plaintiff is entitled to recover on the account stated. Now, with respect to the other matter, speaking for Pearce showed cause.-The question in this case is, myself personally, so far I should have preferred that whether the assistance rendered by the plaintiff's the rule was granted upon it; but I really do not re- daughter to the plaintiff in helping her, with her miscollect what took place. I remember Mr. Gibbons tress's knowledge and consent, to make these shirts at pressing the point on the Statute of Frauds, and on her leisure time, or after she had done her mistress's the plea of fraud, but I have no recollection of any-work of an evening, was not such work as to make the thing being done with it. I do not recollect what took | defendant liable to the plaintiff for the loss of service place with respect to it, but my learned brothers are of by seduction. In actions of this this kind the slightest opinion that when once a defendant has himself entered evidence of any service done has been held sufficient, into a present engagement to pay, or any agreement of even that of making tea or milking cows. [POLLOCK, that sort with respect to a lease being realised as some-C.B.-Those were cases where the party lived in the thing collateral to it, the parties must be taken to house of those whose servant she was called. mean what the written document expresses, and any [WATSON B.-Suppose the master or mistress of a objection, if there be an objection of this kind, would domestic female servant allowed her to go home for an not become available. As I have already said, as far hour or so in the evening, and when at home the seras my opinion goes, I myself should be better pleased vant does, either for her own inclination, or her parents' to hear what counsel on the other side have to say, for pleasure, some trifling act, is she to be considered their I have no recollection about the Statute of Frauds or servant?] For the purpose of supporting such an acanything being said on the trial about it. I have tion as this, she may then be deemed their servant; the no doubt it was, and that I have possibly over- inclination of the courts of law has been to hold the looked it or said something of it to the jury, smallest act of service sufficient to enable plaintiffs, which I really forget. My brothers are of opinion, under such circumstances, to maintain actions for seducif a person thinks fit to give an IO U as an tion-making tea, for instance. In Bennett v. Allcott, existing debt, that excludes any defence of this kind, 2 T. R. 167, Buller J. says: "It is not material and the ordinary rule would apply. I do not think fit whether the servant be or be not hired for a year, or to dissent from that, nor desire that there should be a whether she has any wages;" it being sufficient that new trial in this case, especially as I am perfectly she is a servant de facto." And in Irwin v. Dearman, confident, if that point had been left to the jury, they 11 East, 23, damages ultra the mere loss of service would have found a verdict for the plaintiff. When you having been given against the defendant for debauching find, if it was sold and would fetch something, the other the adopted daughter and servant of the plaintiff by parties having said it would fetch nothing, I cannot which he lost her service, the court refused to set aside doubt the verdict for the plaintiff; and on the substan- the inquisition. Lord Ellenborough said, this has tial point of fraud they would have found also upon always been considered as an action sui generis where that for the plaintiff. Rule refused. a person standing in the relation of a parent, or in loco parentis, is permitted to recover damages for an injury of this nature ultra the mere loss of service. In this case the plaintiff's daughter rendered her mother material assistance in the course of her engagement and contracts to make the shirts, and it was such a service as would enable her mother to support this action against the defendant for his seduction of the daughter, and the loss to the mother of the daughter's service. Friday, Nov. 11. THOMPSON v. Ross. The plaintiff's daughter was the domestic servant of This was an action brought by the plaintiff Mrs. Thompson for the seduction of her daughter by the defendant. The plaintiff's daughter was in the service of the defendant's father as a domestic servant, and living in his house. The plaintiff had a contract with the Messrs. Nicolls, of Regent-street, for making shirts, an employment in which she had been by them engaged for some time. Her daughter, in the evenings after she had finished her work for Mrs. Ross, her mistress, used to help (with her mistress's knowledge and consent) her own mother in the making of these shirts. The alleged seduction by the defendant was said to have been when she was the domestic servant of the defendant's mother, and occasionally occupied for her D. D. Keane, contra, in support of the rule, was not called upon. POLLOCK, C.B.-I am of opinion this rule should be made absolute. There was really no service in this case rendered by the daughter to the plaintiff that can enable her to support an action, even such an action as this against the defendant for what is called the loss of service-slight evidence of service would do no doubt, but then it must have been a true genuine service, such as a master or mistress may command. This was, to make the most of it, but a mere helping of her mother with the consent of the lady who was at that time her real mistress; she lived with Mrs. Ross, the mother of the defendant; and the point mentioned by my brother Watson during the discussion of the case seems to me to be decisive of it in the defendant's favour. Suppose a female domestic servant, on a Sunday evening, was permitted by her master and mistress to go home, and she went home, and when there made her father's tea; that would be a similar case, but surely not enough to constitute such service as would enable her father to maintain an action of this kind as for the loss of service. Here the service performed for her mother might, at any moment, have been withdrawn from her mother by her master or mistress, |