Norton and Jason.
Mich. 1653. Banc. sup.
Trin. 1651. rot. 935.
IN an Action upon the Case for entring into the Plaintifs house,* 1.1 and ma∣king an assault upon his Daughter, and getting a Bastard Child upon her, the Iury found a special verdict, upon which the Case was this. Nor∣ton sojourned in the house of Jason, and during his sojourning there he got his Daughter with Child; Four years after I••son brought an action up∣on the Case against Norton for assaulting his Daughter, and getting her with Child, per quod servitium amisit. The question here was, whether because no Action was brought by the Daughter for the wrong done to her within four years, and thereby she was barred by the Statute of limitati∣ons of A••tions to bring her Action, Iason the Father might now bring his Action upon the Case for the damage done to him by the loss of his Daugh∣ters service, or should be also barred by the Statute. Powis argued, that he was not barred though the Daughter was, because in many cases the Law gives two Actions for one thing, and cited 19 H. 6.45, 46. a. and Hill. 1649. Norburies case adjudged in this Court, and said, that though the Trespas and the Assault was done to the Daughter, yet here is a per quod servitium amisit declared of, which doth belong to Iason the Father. Roll chief Iustice, This Action is an Action brought for the damage done to the Master, and though the servant will release the battery, yet the Master may have an A Aion for the damage caused to him by the Battery, and although the Daughter cannot have an Action, her Father may, al∣though not for entring into his house, because it was with his leave, nor for assaulting his Daughter, and getting her with child, because this is a wrong particularly done to her, yet for the loss of her service caused by this, he may have an Action, but it is a pretty case, and fit to be argued, there∣fore bring us books, and we will advise upon it. At another day the case was again spoken unto by Baldwin of the Inner Temple on the Defen∣dants part, and he made the question to be, whether this be an Action of Trespass vi et armis, or an Action upon the Case which is here brought, and he argued that it is a Trespasse vi et armis, and not an Action upon the Case which is here brought,* 1.2 and cited Nat. Brev. 86. & 17 Ed. 3. and 12 H. 4. and the 9 Rep. the Earl of Shrewsbury case, and said, that the matter here alleged is not Causa causans, but Causa causata, and he agreed that one may be lyable to divers Actions for one Trespass in divers re∣spects, but here all the matter is jumbled together, and it cannot be an A∣ction upon the Case, for the judgement ought to be quod defendens capia∣tur, which is the Iudgement in a Trespass vi et armis, and not in a Trespass upon the Case, Hob. Rep. Wheatly and Stones Case, And although the Action conclude with a per quod servitium amisit, yet it sounds more in Trespass than to be an Action upon the case and then he is barred by the Sta∣tute of limitations, for not bringing it within 4 years, and here are ••ntire damages also given for all, which ought not to be, for the Defendant was a sojourner in the Plaintifs house, and had licence to enter into it, & by consequence is is not guilty of the vi et armis declared, of Hob. Andrews and