that she should return to her father's when she quitted her service, unless she should go into another service. And Parke, B., says: "Here, the girl was in the actual service of another person, and her intention was, not to return at any definite time to her father's house, but only on her dismissal from her service, and in the uncertain event of her not going into another service. That an action for seduction will not lie under such circumstances, has been expressly decided in Dean v. Peel, 5 East, 45. In order to sustain this action, there must be damnum et injuria. The plaintiff not having shown any right to the services of his daughter at the time of the seduction, there is here damnum absque injuriâ." [JERVIS, C. J.-What is there more in this case than going to a friend's house for a short period? My Brother Parke, in the case you rely on, adds,-"A mere temporary absence undoubtedly would not be sufficient to defeat the action; but that is very different from a continued and regular service." MAULE, J.-The girl did not hire herself. The father (or the mother) agreed to lend the defendant his servant for a short time,-till his wife returned from the country.] If she was a hired servant of the defendant, the length of hiring was of no importance. The question is, whether this defendant could not have maintained an action if a third person had seduced the girl.

JERVIS, C. J.-My impression of the evidence was, *and is, *347] that the plaintiff's daughter was staying at the defendant's house rather in the character of a visiter that in that of a servant. The 88. which was given to her by the defendant's wife when she left, was rather by way of gratuity than as payment of wages.

MAULE, J.-I see nothing in the position which the daughter held whilst residing at the defendant's house, which should at all interfere with the relation of servant to her father. It seems to me that there was ample evidence of service to entitle the plaintiff to maintain the action.

CROWDER, J.-I am entirely of the same opinion. At the time of her seduction by the defendant, this young person was only temporarily absent from her father's roof. She still continued to form essentially a part of his family. The case very nearly resembles that of Speight v. Oliveira, 2 Stark. N. P. C. 493 (E. C. L. R. vol. 3), where A. having, with intent to seduce the servant and daughter of B., hired her as his servant, and by that means obtained possession of her person,-it was held, that B. might maintain an action against him for such seduction. Abbott, C. J., there says: "During the time that the girl was in her father's house, she was his servant: was there an end put to that service? It is alleged by the defendant that there was, because he himself hired her for the purpose of keeping his own house, at 78. per week. But, if he did not really hire her with that intention, but with the wicked view of seducing her, then I am of opinion that the relation of master

and servant was never contracted between them." I agree with the rest of the court in thinking that there should be no rule.

A father may have an action for the seduction of his minor daughter, though she resides out of his family, if he has not divested himself of the right to

Rule refused.

control her person or to require her services: Emery v. Gowen, 4 Greenleaf, 33; Vanhorn v. Freeman, 1 Halst. 322; Vossel v. Cole, 10 Missouri, 634.

*CUMBERLAND v. BOWES. Nov. 6.

[*348

A. held a farm of B., subject, amongst others, to the following covenants contained in a draft lease under which a former tenant had held,-1. to house the produce on the farm, and to thresh, feed, and fodder the same thereon, and not to sell or dispose of any part thereof, except us after mentioned,-2. that A. should be at liberty to sell hay and wheat straw (except that of the last year's produce), bringing back for every load of hay or straw two loads of manure,— 3. that A. should, on the determination of the tenancy, leave all the hay, straw, and manure arising during the last year of his tenancy for the use of B. or of the incoming tenant, being paid for the hay and wheat straw at a fair valuation,—these latter words "fair valuation" having been substituted in the draft lease for "consuming price."

In an action by A. against B. to recover the value of hay and wheat straw left by the former at the expiration of his tenancy, it appeared that a valuation had been made by an umpire, who was the only witness called at the trial, and who stated that he had valued, not at a "consuming price," nor a "market price," but at a "fair valuation ;" and the jury returned a verdict in accordance with his valuation :

Held, that there was nothing from which the court could see that the valuation had been made upon an erroneous principle; and, what was a "fair valuation" being a question for the jury, there was no ground for interfering with the verdict.

Whether the court could properly notice the substitution of the words "fair valuation" for "consuming price," in the draft lease,—quare?

Held, also, that the valuation of the umpire was not invalidated by the circumstance of his having altered it after he had delivered it out, by striking out an item which ought not to have been included therein.

THIS was an action by an outgoing tenant of a farm called Bury Farm, at Walden, in the county of Hertford, against his landlady, to recover compensation for certain hay, straw, and manure left by him on the farm. The defendant pleaded,—first, that the umpire did not duly value,―secondly, payment into court of 5201.

The cause was tried before Lord Chief Baron Pollock, at the last assizes at Hertford, when the following facts were proved, or admitted: ---The plaintiff's father, William Cumberland, in February, 1840, became tenant of the farm in question under a proposal for a lease in the terms contained in the draft lease hereinafter mentioned, and continued in possession thereof upon the terms of such draft lease until his death; and, after his death, his widow and the plaintiff, as his executrix and executor, continued to hold the farm upon the same terms as William Cumberland had held it, until the death of the widow; and, from that time, the plaintiff alone continued to hold down to March, 1852, when a

*349]

of

new agreement was entered into under which the plaintiff became tenant *from year to year upon the same terms in all respects, save the substitution of a corn rent for a money rent. The draft lease above referred to was as follows:Draft of an indenture of lease of the -, 1840, between Demster Heming and John Warwick, of the first part, the Right Hon. Thomas Bowes, Earl of Strathmore, of the second part, The Hon. Charlotte Lyon Bowes, commonly called Lady Glamis, widow, of the third part, and William Cumberland, of the fourth part. Demise of the farm and premises in question to William Cumberland, his executors, &c., from the 29th of September then next for four years thence next ensuing, and fully to be complete and ended, and thence from year to year, as yearly tenant thereof, until such tenancy shall be determined as after provided." The draft contained, amongst others, the following covenants:-" And also that he, the said W. Cumberland, his executors or administrators, shall and will manage and cultivate the said farm and land (except the pasture lands) according to the rotation of crops and in manner usual in the four-course system, so that no more than two white straw crops, such as wheat, barley, or oats, shall in any case succeed each other, but shall have a green or pulse crop or a fallow constantly intervene, and so that the arable lands shall have a summer-fallow every fourth year; nor shall more than one wheat crop be taken off the same lands in one course of four years: And also shall and will in each year make and continue fallow at least one-fourth part of the said arable lands as and for a summer-fallow; and shall and will in a proper and husbandlike way plough and dress the same, at the rate of ten loads per acre of good rotten dung, or equivalent manure: and shall and will in the last year of this demise leave the one-fourth part of the said arable lands which shall be in course for fallow for wheat, and shall and will permit and suffer the said D. Heming and John Barker, or other the person or persons for the time being entitled *350] as aforesaid, and their or his servants or workmen, or incoming tenant, in the last year of this demise, to enter the said lands so to be left for a summer-fallow, to prepare the same in such manner as to them or him shall seem meet: And also shall and will house, inbarn, and set up upon the said demised premises all the corn, hay, and produce which shall grow or arise from the said demised lands and grounds, or any of them, and there thresh, feed, and fodder out the same for the better increase and making of dung and compost there, and in a husbandlike manner spread, bestow, and lay all the dung, muck, stover, manure, soil, and compost that shall arise and be made upon the said premises, or any part thereof, during the continuance of his tenancy, in and upon the lands and grounds hereby demised, or some of them, where most needed, and shall not nor will sell or otherwise dispose of

the same, or any part thereof, except as after mentioned:(a) And it is agreed that the said W. Cumberland, his executors or administrators, are to be at liberty to sell and dispose of his hay and wheat straw (except that of the last year's produce) on the terms that he or they do immediately afterwards bring back and return upon the said premises, for every load of hay or straw sold or disposed of, two loads of good rotten dung or other equivalent manure, and spread and bestow the same in a husbandlike manner upon the said demised lands where most needed: And also shall and will, on the determination of his tenancy, leave on the said hereby demised premises all the hay, wheat straw, and all other straw, as shall not be used in fodder, arising from the last year's crop, and also all the dung, muck, stover, and compost as shall arise or be made upon the said premises in the last year of his tenancy, to and for the use of the said D. Heming and John Barker, their heirs or assigns, or other the person *for the time being entitled as aforesaid, or his or their succeeding or incoming tenant, being [*351 paid or allowed for the hay and wheat straw at a fair valuation :(b) And also that it shall and may be lawful to and for the said D. Heming and John Barker, their heirs or assigns, or other the person for the time. being entitled as aforesaid, or his or their succeeding or incoming tenant, and his and their servants and workmen, with horses and carts, in the last year of the tenancy hereby created, to enter into and upon so much. of the said arable lands as shall then be in course for a summer-fallow, and to plough, fallow, and manure the same in such manner as to them or him shall seem meet; and also to enter upon the dung, manure, and compost that shall then be in the yards and other parts of the said premises, and to take, carry out, and use the same in the said arable lands which shall then be in course for a summer-fallow as aforesaid; And also that the said D. Heming and John Barker, or other person entitled as aforesaid, or their or his tenant, shall be at liberty, in the last year of his tenancy, to sow grass-seeds on such of the said arable lands as shall then be sowed with lent or spring corn, and the said W. Cumberland, his executors or administrators, shall and will harrow the same in gratis, and preserve the same from harm or being fed off." The draft further contained all the covenants usual in a farming lease.

Upon the plaintiff's giving up the farm, at Michaelmas, 1853, a dispute arose between him and the defendant as to the valuation of the hay and straw left by him; the plaintiff insisting that he was entitled to be paid for them at a "fair valuation," as contradistinguished from a "consuming price," which the defendant contended for. Valuers were accordingly appointed on each side. They not agreeing, an umpire was appointed, who valued the hay, straw, &c., left on the premises,

(a) These words were in substitution of the words, "wheat, straw, and hay (except that of the last year's produce), only excepted."

(b) These words were in substitution of the words "consuming price."

VOL. XV.-32

at the sum of *774l. 11s. 3d., accompanying his valuation with *352] the following certificate,-I certify that I have valued the above at a marketable price in its present situation."

Eve, the umpire, who was the only witness called at the trial, stated that he did not value at a "consuming price," or at a "market price," but at a fair valuation."

It further appeared, that, after Eve had delivered out his valuation to the parties, he discovered that he had made a mistake, by including in his valuation a small quantity of old hay which he ought not to have valued, and accordingly he altered the valuation by striking off 21. as the value of the hay so improperly included.

The jury having returned a verdict for the plaintiff for 252l. 118. 3d., the difference between the sum paid into court, and the amount of the valuation as altered,

Channell, Serjt., on a former day in this term, pursuant to leave reserved to him for that purpose, moved to enter a nonsuit, or for a new trial. By the terms of the covenant, the tenant was bound to consume on the farm all the hay and straw, or, if any were carried off, to bring back an equivalent in manure. But, in the last year of the tenancy, he bound himself to leave the hay and straw at a fair valuation,-that is, regard being had to the other covenants, to be consumed on the farm by the incoming tenant. [JERVIS, C. J.-The universal rule is, that the tenant is to leave the hay and straw at fodder price. Unless that is controlled by the words here substituted, it means a consuming price. MAULE, J.--The substitution of "fair valuation" for "consuming price," would seem to show that something different was intended.] The next objection is, that there was no such valuation here as to entitle the plaintiff to recover. The valuation delivered out by the *353] umpire did not pursue his authority: and, though he afterwards *altered his valuation for the purpose of curing the defect, he was then functus officio. [MAULE, J.-The umpire was not functus: he had not valued at all until he gave out the perfect valuation. If a man does not communicate the value of a specific thing which he is employed to value, he does not value it.] That would cure every objection in the case of an award which is bad for excess. [MAULE, J.— Not so. The award is bad, not because the arbitrator has exceeded his authority, but because he has not done that which the parties had required him to do.] A rule nisi having been granted on the first point only,

Lush, on a subsequent day, showed cause.-The umpire had the draft lease shown to him, and he stated that he valued neither at a consuming price nor a market price, but at a fair valuation as between outgoing and incoming tenant. The fact of the words "fair valuation" having been substituted for "consuming price," shows that the parties contemplated