4 Cow. 412 | N.Y. Sup. Ct. | 1825
The relation of mistress and servant, between the plaintiff and her daughter, was sufficiently made out at the trial. The slightest acts of service are sufficient, as merely milking cows. (Bennet v. Allcott, 2 T. R. 168.) So it is said making tea for, or attention to the plaintiff, during sickness. (2 Phil. Ev. 157.) Mr. Philips very judiciously remarks, that otherwise- the action might be confined to families in the lower ranks of life, where the daughter is literally a servant; and could never be extended to the higher order, where it is generally more wanted ; and where the injury is often of a more aggravated kind. (Id.)
As to the form of the action : in England, trespass vi et armis, seems to have predominated. (Woodward v. Walton, 5 B. & P. 476. Ditcham v. Bond, 2 M. & S. 436. Reeve’s Dom. Rel. 293.) Yet the right to bring case, laying the injury with a per quod servitium amisit, has there, not only been judicially recognized, but very able writers upon English law treat this as the most proper form. (Saterthwaite v. Duerst, 5 East, 47, note (a). 1 Chit. Pl. 137,138. 2 id. 267, note (u), and cases there cited. Christian’s notes to 1 Bl. Com. 429, and 3 id. 142.) Mr. Chitty has given the precedent of a declaration in this form of action. (2 Chit. Pl. 267.) Case is uniformly brought in Connecticut. (Reeve’s
New trial refused.