By the court, Mason, J.
The judge at circuit, in my judgment, committed two errors in giving the rule of damages to the jury. In the first place, he charged the jury that, if the plaintiff was entitled to recover, their verdict should be the value of the services of his son for the full term of three years, if living, and advised them that they would probably find he was living; and to this the defendant’s counsel [454]*454excepted, and requested him to charge the converse. This proposition cannot be sustained. The plaintiff’s son enlisted in September, 1863, and this suit was commenced in the spring of 1864, and the cause was tried in December, 1864. The case of Hambleton agt. Veere (2 Sound. R. 169), holds that in this action for enticing away the plaintiff’s servant, that he can only recover for the loss of service up to the time of the commencement of the suit. The case was most ably argued, and the King’s bench, tota curia, as the report shows, gave' deliberate judgment, holding that the plaintiff could only recover for the loss of service up to the time of the commencement of the action; setting aside the verdict, because damages had been for the whole residue of the term. Three reasons were- assigned against allowing the damages for the unexpired term. The first was, that the apprentice might return to his master, and so the plaintiff have the benefit of his sendees; secondly, the master might compel his return; and, third, that the apprentice might die during the term, and the plaintiff could not then recover, because the death happened by the act of God. This case has never been overruled, but was approved by Littledale, Justice, so late as 1840, in pronouncing the opinion of the court in Hadsell agt. Stallebross (11 Adol. & Ellis, 361; 3 Eng. Com. Law. 94, 96).
I have not been able to find, after the most careful examination, that the case of Hambleton agt. Veere has ever been overruled or questioned, so far as the general rule there laid down is concerned.
The rule is laid down in Eubois agt. Allen (Anthon’s Nisi Prius, 94), that, in an action on the case for enticing away the plaintiff’s servant, the general rule of damages is the value of the service during the time the servant has been in the defendant’s employ.
I know there are cases, where the action is brought to recover for the loss of service resulting from assault and battery, or persona! injury, committed upon the servant, that the courts have allowed a recovery for The full unexpired [455]*455term, but they are cases where the proof showed the injury was permanent. Those cases have no application to the case at bar, for the servants were actually shown to be disabled.
It may be said that the case under consideration is not like ordinary cases of this kind, for enticing away a servant, for the reason that the defendant caused or procured the plain-till’s son to enlist in the army, and he is bound to military service, and cannot act his free volition in regard to returning. This argument is good for what it is worth. There are very many probable contingencies upon which he maybe discharged before the end of- three years. He may become sick, and the government discharge him; he may be disabled by wounds to serve in the army, and be discharged. His enlistment was clearly illegal, being procured upon a forged written consent of his father. It became, therefore, the duty of the secretary of war, under the act of congress and articles of war, to discharge him, on his father’s making proof of this fact. The plaintiff, therefore, might procure his discharge.
There is still another answer. The enlistment was to end with the war, and the law will not presume in such a case that the war will continue three years. The law presumes that a fact continuous in its character still continues to exist, until a change is shown, as that a life still continues, or that a partnership proved to exist still continues (1 Cow. & Hill's Notes, 295); and so a state of war proved to exist three years ago is presumed in law to be still existing, unless the contrary be shown, but the law indulges no presumption at the present time "that it will continue three longer. On the contrary, war is not the normal, but an exceptional state of society, and is generally regarded as a thing not to be desired either by individuals or nations. Peace is desirable, and not war, and the presumption is that men and nations will do that which is for their interests, and act with reference to them. The law, however, will not indulge in any presumption in regard to a future condition of war or peace. Gfod alone knows what the future has in store for nations, and [456]*456finite courts, whose visions cannot penetrate the future, should not speculate as to its probabilities, much less attempt to' solve them and make them the basis of their judgment.
The rule is reasonable which presumes the continuance of an existing fact at the time of the trial, for the other party * can overthrow it by proof if it be not so; but when it presumes a future continuance, the party has ho ability to unfold the future and give an answer by his proof. The only safe rule, in cases of this kind, is'to limit the loss of service up to the commencement of the suit, as was done in Hambleton agt. Veere, or, at the furthest, up to the time of the trial.
The judge left it to the juiy to say whether, from the evi dence, the plaintiff’s son was dead or not, and then in this connection charged the jury that, if they should find that he is dead, and that the defendant enticed him into the army when he knew he had no. right to do so, that they might award such vindictive damages to the plaintiff as they should think would be right for the punishment of the defendant, and as a compensation of the time and trouble of the plaintiff in prosecuting this action; and this was excepted to by the defendant’s counsel. This portion of the charge certainly is erroneous. It is well settled that the master cannot recover in an action, even for the loss of service, where the defendant has beaten his servant to death. (Higgins agt. Butcher, Yelv. 39 90; 1 Browl. 205; Ney. 18; Ld. Raym. 259; 12 Petersdorf Abr. 406, 594, note; 15 N. Y R. 432; 23 N. Y. R. 478; Reeves’ Dom. Rel. 376, 377.) The rule is also well settled that in trespass, for an assault upon the child or servant of the plaintiff, per qiiod servitum amisit, the measure of damages is the actual loss which the plaintiff has sustained, and that exemplary damages cannot be given, although the assault be of an indecent character upon a female, and under circmncumstances of great aggravation. (4 Den. R. 461; 34 W. R. 429.) Now, if the law will not give to the parent exemplary or vindictive damages, against a person who insultingly assaults and beats, with great circumstances of aggravation, his [457]*457daughter, but confines him simply to his claim for loss of services, I can see no reason why it should give him exemplary damages simply for enticing him away from his service and placing him in circumstances where there is simply a possibility he may be injured or killed by others.
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By the court, Mason, J.
The judge at circuit, in my judgment, committed two errors in giving the rule of damages to the jury. In the first place, he charged the jury that, if the plaintiff was entitled to recover, their verdict should be the value of the services of his son for the full term of three years, if living, and advised them that they would probably find he was living; and to this the defendant’s counsel [454]*454excepted, and requested him to charge the converse. This proposition cannot be sustained. The plaintiff’s son enlisted in September, 1863, and this suit was commenced in the spring of 1864, and the cause was tried in December, 1864. The case of Hambleton agt. Veere (2 Sound. R. 169), holds that in this action for enticing away the plaintiff’s servant, that he can only recover for the loss of service up to the time of the commencement of the suit. The case was most ably argued, and the King’s bench, tota curia, as the report shows, gave' deliberate judgment, holding that the plaintiff could only recover for the loss of service up to the time of the commencement of the action; setting aside the verdict, because damages had been for the whole residue of the term. Three reasons were- assigned against allowing the damages for the unexpired term. The first was, that the apprentice might return to his master, and so the plaintiff have the benefit of his sendees; secondly, the master might compel his return; and, third, that the apprentice might die during the term, and the plaintiff could not then recover, because the death happened by the act of God. This case has never been overruled, but was approved by Littledale, Justice, so late as 1840, in pronouncing the opinion of the court in Hadsell agt. Stallebross (11 Adol. & Ellis, 361; 3 Eng. Com. Law. 94, 96).
I have not been able to find, after the most careful examination, that the case of Hambleton agt. Veere has ever been overruled or questioned, so far as the general rule there laid down is concerned.
The rule is laid down in Eubois agt. Allen (Anthon’s Nisi Prius, 94), that, in an action on the case for enticing away the plaintiff’s servant, the general rule of damages is the value of the service during the time the servant has been in the defendant’s employ.
I know there are cases, where the action is brought to recover for the loss of service resulting from assault and battery, or persona! injury, committed upon the servant, that the courts have allowed a recovery for The full unexpired [455]*455term, but they are cases where the proof showed the injury was permanent. Those cases have no application to the case at bar, for the servants were actually shown to be disabled.
It may be said that the case under consideration is not like ordinary cases of this kind, for enticing away a servant, for the reason that the defendant caused or procured the plain-till’s son to enlist in the army, and he is bound to military service, and cannot act his free volition in regard to returning. This argument is good for what it is worth. There are very many probable contingencies upon which he maybe discharged before the end of- three years. He may become sick, and the government discharge him; he may be disabled by wounds to serve in the army, and be discharged. His enlistment was clearly illegal, being procured upon a forged written consent of his father. It became, therefore, the duty of the secretary of war, under the act of congress and articles of war, to discharge him, on his father’s making proof of this fact. The plaintiff, therefore, might procure his discharge.
There is still another answer. The enlistment was to end with the war, and the law will not presume in such a case that the war will continue three years. The law presumes that a fact continuous in its character still continues to exist, until a change is shown, as that a life still continues, or that a partnership proved to exist still continues (1 Cow. & Hill's Notes, 295); and so a state of war proved to exist three years ago is presumed in law to be still existing, unless the contrary be shown, but the law indulges no presumption at the present time "that it will continue three longer. On the contrary, war is not the normal, but an exceptional state of society, and is generally regarded as a thing not to be desired either by individuals or nations. Peace is desirable, and not war, and the presumption is that men and nations will do that which is for their interests, and act with reference to them. The law, however, will not indulge in any presumption in regard to a future condition of war or peace. Gfod alone knows what the future has in store for nations, and [456]*456finite courts, whose visions cannot penetrate the future, should not speculate as to its probabilities, much less attempt to' solve them and make them the basis of their judgment.
The rule is reasonable which presumes the continuance of an existing fact at the time of the trial, for the other party * can overthrow it by proof if it be not so; but when it presumes a future continuance, the party has ho ability to unfold the future and give an answer by his proof. The only safe rule, in cases of this kind, is'to limit the loss of service up to the commencement of the suit, as was done in Hambleton agt. Veere, or, at the furthest, up to the time of the trial.
The judge left it to the juiy to say whether, from the evi dence, the plaintiff’s son was dead or not, and then in this connection charged the jury that, if they should find that he is dead, and that the defendant enticed him into the army when he knew he had no. right to do so, that they might award such vindictive damages to the plaintiff as they should think would be right for the punishment of the defendant, and as a compensation of the time and trouble of the plaintiff in prosecuting this action; and this was excepted to by the defendant’s counsel. This portion of the charge certainly is erroneous. It is well settled that the master cannot recover in an action, even for the loss of service, where the defendant has beaten his servant to death. (Higgins agt. Butcher, Yelv. 39 90; 1 Browl. 205; Ney. 18; Ld. Raym. 259; 12 Petersdorf Abr. 406, 594, note; 15 N. Y R. 432; 23 N. Y. R. 478; Reeves’ Dom. Rel. 376, 377.) The rule is also well settled that in trespass, for an assault upon the child or servant of the plaintiff, per qiiod servitum amisit, the measure of damages is the actual loss which the plaintiff has sustained, and that exemplary damages cannot be given, although the assault be of an indecent character upon a female, and under circmncumstances of great aggravation. (4 Den. R. 461; 34 W. R. 429.) Now, if the law will not give to the parent exemplary or vindictive damages, against a person who insultingly assaults and beats, with great circumstances of aggravation, his [457]*457daughter, but confines him simply to his claim for loss of services, I can see no reason why it should give him exemplary damages simply for enticing him away from his service and placing him in circumstances where there is simply a possibility he may be injured or killed by others. And as the " rule is well settled that the master of parent cannot sustain an action at all for loss of service, against one who kills his servant outright, it cannot be guilty of the inconsistency of punishing the party with exemplary damages, simply that he induces the servant to place himself in circumstances where his life is simply in danger, and in consequence of which he loses his life. .
This is not a case where the law allows punitive or exemplary damages. The foundation of the action is the loss of service, and the recovery should be the damage sustained. The guilt and moral turpitude is greater to commit a gross and inhuman assault and battery upon a servant, and thus disable him, or to commit an indecent assault and battery upon a female, than is the conduct of the defendant in this case, Who simply paid the plaintiff’s son $200 to induce him to go into the army as a substitute for him, after being informed that the young man desired to enlist and go for a bounty from some one. The act, to be sure, is an illegal and wrongful act, as regards the father, unless his consent is obtained; that obtained, and there is no wrong in it.
The services to be rendered are respectable and honorable, and if rendered in defense of his government and his country, are commendable, and the only thing about it is the legal wrong of depriving the father of the services of his child. This, I mean, is all, so far as the plaintiff is concerned. He cannot have his wounded feelings solaced by any award of damages at the hands of the jury. . (Cowden agt. Wright, 24 W. R. 429.) Now why should the plaintiff be entitled to • exemplary damages of the defendant, if his son is killed? I r know of no other reason only as a solatium to his wounded feelings. The defendant has done precisely the same wrong, [458]*458whether the plaintiff’s son is killed in battle or survives to return to his friends.
The case of Gunter agt. Astor and others (4 J. B. Moore’s R. 12; 15 Eng. Com. Law R. 357), is relied on as holding a different rule, and as justifying the charge of the judge in the case at bar. The head note of the case declares that, “ in an ' “ action on the case for enticing away the plaintiff’s servants, “the measure of damages is not to be ascertained at the “ actual loss he sustained at the .time, but for the injury done “ him by causing them to leave his employment.” The case was a peculiar one, and attended with circumstances of great aggravation. The plaintiff was a manufacturer of piano fortes, and the defendants conspired together to entice away the plaintiff’s servants and employees in a body. They invited the plaintiff’s servants to a dinner and got them drunk, offered them higher wages and induced them to sign an agreement to leave the plaintiff’s service and go into their service, and they all left the plaintiff accordingly; by which the plaintiff’s business was broken up, and he nearly, if not absolutely ruined. And the judge left it to the jury to ascertain what damages the plaintiff had sustained by the misconduct of the defendants, and the jury found a verdict for the plaintiff for ¿61600 ; and the court sustained the verdict and denied a new trial. The complaint charged the defendants with a conspiracy, and the jury so found from the evidence. The case rests upon its own peculiar circumstances, and is no authority as controlling the rule of damages in the action generally, or in a case like the present, where the plaintiff’s son, while working away from home, went and sought the defendant and offered to go as a substitute for him, learning that he wished to procure one. And the case seems to have been sustained upon the ground that the jury found that the plaintiff had actually sustained that amount of damages. Be that as it may, it can hardly be regarded as an authority overruling a rule of damages so long established as has been the rule, in this action especially. No reference is made in the decision [459]*459to the prior adjudged cases. The case, to say the least, is of questionable authority, as the servants were not bound to the plaintiff for anytime of service, but were only to work by the piece. If the verdict can be sustained at all, it must be bn the ground of fraud and conspiracy alone.
I am of opinion the charge of the judge was wrong in both respects, and that a new trial should be granted.
Parker, J., concurred.