right to services and the duty to protect.

At com

mon law the parent recovered only to the same extent that a master would recover for loss of services of his servant.

Damage to the parent may arise by injuries that diminish the child's ability to serve, or by wholly depriving the parent of its services; and the latter may occur by enticing the child away or by causing its death. The last named wrong has been treated in a former section.

§ 458. Physical injuries to the child.-Any one who by a wrongful act injures the child so as to deprive the parent of its services, or to cause loss through care and attendance upon it, is liable to the parent therefor. If the injury is of a continuing nature, the parent recovers not only the value of the services actually lost, but for the deprivation or impairment of services up to the age of twenty-one. In estimating the value of services the expense of supporting the child must be considered. It is only for loss of services that the parent recovers; for mere loss of happiness, comfort and society of the child, except so far as they can be viewed as services, there can be no recovery. The parent's anxiety, grief and sympathy for the child's injury are not elements of damage in a legal sense. For the child's suffering, mental anxiety and permanent injury or disfigurement, the parent has no right of action for his own benefit, the action for all such damage being in the name of the child itself and the recovery being for its own benefit.

§ 459. Enticing away the child.—The parent is entitled to the custody as well as the services of the

child; and if a wrong-doer get possession of it, the parent may by legal proceedings have it restored to him.

Whoever by force or artifice takes a child away from its parent is liable to the parent for the loss of its services. The recovery in such case is based upon the relation of master and servant, rather than upon the parental relation. For if the parent has emancipated the child, that is, given to it the right to enjoy all the profits of its services, so that there is no longer the relation of master and servant, there is no right of recovery in favor of the parent.

§ 460. Seduction.-The wrong by seduction of a female child has some elements that distinguish it from other wrongs. The law has labored under some difficulties from which it has emerged but slowly. Under the common law the right of action was based purely upon the parent's right as a master to the services of his daughter as a servant. It followed from this, that while he could recover against a seducer, if his daughter resided at home, or was not actually in the service of some one else, he could not recover if another person were lawfully entitled to her services by contract. The law permitted the father to recover for the shame and humiliation consequent upon the seduction, but only in cases where he was entitled to recover on account of loss of services. Consequently, when she was in the service of another, the only damages recoverable were the loss of her time and the expenses, and these were recoverable by the person who was entitled to the serv ice or who paid the expenses. The anomaly was that the action was made to depend upon loss of services,

which generally were merely nominal, whereas the real injury for which the substantial damages were given was the shame and disgrace.

To remedy this inconsistency statutes have been. passed in most of the states giving the parent a right of action for the seduction of the daughter, whether or not the daughter be living with the parent, or the parent be entitled to her services. A further right of action is given to the woman seduced to sue for her own seduction.

CHAPTER XXXV.

GUARDIAN AND WARD.

§ 461. Kinds of guardianship.-A guardian is one who has the care and management of either the person or property, or both, of a child during minority. At common law there were many kinds of guardianship, which have become obsolete. States at present the law relating to guardianship is much the same for all the states.

In the United

The following are to be considered: 1st. Natural guardians. 2d. Testamentary guardians. 3d. Legal guardians. 4th. Guardians ad litem. 5th. Prochein ami or next friend.

§ 462. Natural guardian.-By this is meant the father, or, on his death, the mother. None other can be natural guardian. The natural guardian has control of the person of the child, but not of its property. The title is, in fact, nothing more than another name for the natural right of a parent to the custody and control of the child. It adds nothing to the legal right. There is no action that may be brought for an infant by natural guardian, and whenever parent sues as such on account of any injury to the child the recovery is for the benefit of the parent only.

§ 463. Testamentary guardian.-By this is meant the person named in a parent's will to be the guard(290)

ian of a child. Such person simply has a preference to be appointed the legal guardian, if all other things are equal. He has no powers unless appointed by the court, and when legally appointed his status is that of an ordinary legal guardian.

§ 464. Legal guardian.—By this is meant the person appointed to be guardian by the court having jurisdiction. Generally the father has the preference, then the mother, then the next of kin in order. The legal guardian always has exclusive control of the ward's property and sometimes of the ward's person. So long as the parent claims the custody of the child's person, the legal guardian has no right to it. But if the parents are dead, or unfit, the legal guardian is entitled to custody.

The guardian's duty is to see that the ward is cared for and properly educated. As to the ward's estate, the guardian is bound to exercise care and diligence in managing it; must account from time to time to the court appointing him, and upon maturity of the ward must pay over and deliver to the ward the entire estate. The guardian is held to strict accountability. Unauthorized acts of the guardian may be adopted if beneficial, or rejected if detrimental to the estate; and a guardian is not permitted to reap any personal benefit whatever out of the management of the estate, except what is allowed by the court as compensation for his services. Frauds of the guardian have been treated in a previous chapter.

Among the guardian's duties are the collection of debts and the defense of all suits against the ward. What suits must and what may be brought in the name of the guardian for the infant, is regulated by