all cases. We think such a construction would, in a majority of cases, necessarily prevent a verification by the state's attorney, and in not a few cases prevent a verification by any witness; in which event, of course, no information could be filed, as all informations are required by the statute to be verified. It rarely occurs that the state's attorney has such personal knowledge of the essential facts of a crime as will permit him to swear to their existence in positive and unqualified terms. In many cases the crime can only be proven as a result of the testimony of several witnesses, each giving testimony as to separate links in the chain of evidence necessary to convict. In such cases no witness would be prepared to testify to all the essential facts constituting the crime positively and without qualification. This view is sustained by the Michigan cases. Mentor v. People, 30 Mich. 91: Washburn v. People, 10 Mich. 372. See also State v. Montgomery, 8 Kan. 351; State v. Nulf, 15 Kan. 404. We think the verification sufficient, and hence overrule the assignment of error on that point. But we limit the decision to the facts of this case, and do not wish to indicate in advance what we should hold in a case where it appeared that the information had been veri- | fied on information and belief as a foundation for issuing a warrant of arrest, or by a witness or person other than the state's attorney, or in a case where no preliminary examination had been held or waived.

The remaining assignment of error presents a question of great difficulty. The information was first attacked by a motion to set it aside, and, that motion being denied, defendant demurred to the information, and the demurrer was overruled. Subsequently the fendant moved the court to arrest the judgment. In all these modes of assailing the information defendant's counsel claimed, among other things, that the information is invalid, because it does not appear by the information that the prosecution of this defendant is carried on either in the name of the state of North Dakota or by its authority. The information is not entitled in an action in which the state appears as a party, nor in any action, nor does the information aver in terms or indirectly that the defendant is prosecuted either in the name or by the authority of the state. It does appear on the face of the information that it was filed by the acting state's attorney of Richland county in the district court of said county and state of North Dakota. In support of his contention defendant's counsel cites section 97, art. 4, of the state Constitution, which contains the following language: "All prosecutions shall be carried on in the name and by the authority of the state of North Dakota." In support of the information the attorneygeneral cites the case of Davenport v. Bird, 34 Iowa, 525. This case is one where the city prosecutes under its charter for violating a city ordinance forbidding loud and unusual noises in the streets. The Supreme Court of Iowa, construing a section of the Constitution of Iowa substantially like that above quoted, says in effect, that such prosecution is not one which should be had in the name of the state,

because the language in the Constitution does not relate to such prosecutions, but has reference wholly to cases brought in the courts established by the Constitution, and for offenses arising under the criminal laws of the state. For this reason the prosecution was sustained, but the court says further: "It is fitting and appropriate that prosecutions for the violation of criminal laws of this state should be carried on in the name of the government." We think the case tends to sustain the position of defendant's counsel. See Saine v. State, 14 Tex. App. 144; note to 10 Am. & Eng. Encyclop. Law, p. 708; Jefferson v. State, 24 Tex. App. 535; Hay v. People, 59 Ill. 94; Gould v. People, 89 III. 216; Calvert v. State, 8 Tex. App. 538; Donnelly v. People, 11 Ill. 552. The omission in the information could, before trial, on leave of court, have been readily supplied by amendment (10 Am. & Eng. Ency clop. Law, p. 709); but nothing appears in the record showing that leave to amend was asked by the prosecutor. We are aware that the caption or commencement of indictments and informations is merely preliminary and formal, and not a part of the accusation proper, and hence courts have gone a great length in construing such formal parts, and have uniformly held that informalities and omissions in them are curable by amendment, and comparatively of small account, inasmuch as they cannot prejudice the substantial rights of the accused upon the merits. But in the case at bar the omission to state, either directly in the information or indirectly by means of entitling it in an action, that the prosecution of the case is carried on in the name of the state and by its authority, is nothing less than a plain violation of the explicit mandate of the state Constitution. It may be that the requirement is formal and arbitrary, and that to disregard it would not prejudice the defendant in his substantial rights, but we do not feel at liberty to completely ignore any provision of the organic law. On the contrary, our duty is to give effect to all of its terms. Our conclusion is that the information in this case is invalid, because it does not conform to the requirements of the state Constitution. An indictment, moreover, is required, among other things, to contain the title of the action specifying "the names of the parties." Section 213, Code Crim. Proc.; section 7241, Comp. Laws. Informations are to be tested, as near as may be, by the statutes regulating indictments. Chapter 71, Laws 1890.

Defendant objected to being tried before the new jury impaneled after the discharge of one of the original jurors on account of his illness, and based his objection upon the theory of a former jeopardy. But the discharge of the juror, when he became unable to perform his duties, was entirely proper, as it was occasioned by an obvious legal necessity. In such cases, the plea of former jeopardy cannot be allowed under the modern decisions. Wharton, Crim. Pr. & Pl. 9th ed. § 508, and cases cited.

The judgment will be reversed, and a new trial ordered.

All concur.

James H. BAKER

Hempstead v. Des Moines, 63 Iowa, 86; Fifield v. Edwards, 39 Mich. 267; Freeman,

(........Mich.........)

1. A judgment in favor of a minor in an action brought by his father as next friend, which includes damages for loss of earning capacity from the time of injuries occasioned by defendant's negligence is a bar to an action by the father personally to recover for loss of services of the son during minority.

2. The question whether or not parents allowed their son to play about a railroad track and depot grounds so as to be regarded as having contributed to injuries received by him there, is for the jury where they testify that they had forbidden him so to do after receiving notice that such was his habit and were ignorant that he was there at the time he was hurt.

ERR

(April 8, 1892.)

RROR to the Circuit Court for Bay County to review a judgment in favor of plaintiff in an action brought to recover damages for loss sustained by, and expense caused to, plaintiff, by reason of the injury of his minor son through defendant's alleged negligence. Reversed.

The facts are sufficiently stated in the opinion.

Mr. T. A. E. Weadock, with Mr. William L. Webber, for plaintiff in error:

Where the parent has been, as in this case, carelessly negligent of his parental duties, it is against public policy to reward him for such neglect.

Bellefontaine & 1. R. Co. v. Snyder, 18 Ohio St. 399,98 Am. Dec. 175; Bellefontaine R. Co. v. Snyder, 24 Ohio St. 670; 2 Thomp. Neg. 1191, 37; Glassey ▼. Hestonville, M. & F. Puss. R. Co. 57 Pa. 172; Beach, Contrib. Neg. p. 137, § 44; Smith v. Hestonville, M. & F. Pass. R. Co. 92 Pa. 450, 37 Am. Rep. 705; Pennsylvania R. Co. v. Bock, 93 Pa. 427; Williams v. Texas & P. R. Co. 60 Tex. 205; Isabel v. Hannibal & St. J. R. Co. 60 Mo. 475, Koons v. St. Louis & 1. M. R. Co. 65 Mo. 592; Daley v. Norwich & W. R. Co. 26 Conn. 591; Birmingham v. Dorer, 3 Brewst. 69; Walters v. Chicago, R. 1. & P. R. Co. 41 Iowa, 71; Albertson v. v. Keokuk & D. M. R. Co. 48 Iowa, 292; Wright v. Malden & M. R. Co. 4 Allen, 283; Pittsburgh, Ft. W. & C. R. Co. v. Vining, 27 Ind. 513; Chicago v. Major, 18 Ill. 349, 68 Am. Dec. 553; Louisville & P. Canal Co. v. Murphy, 9 Bush, 522.

If the plaintiff, James H. Baker, included in the first suit any part of his personal claim, then he is precluded from asserting other items which might have been included.

NOTE. The decision that a judgment obtained by a person as next friend for his minor son binds him personally so far as to prevent a subsequent recovery in his own behalf upon the same demand is a plain exception to the rule that a party is bound by a judgment only in the same capacity in which he was a party to it. But the real basis of 16 L. R. A.

Messrs. Simonson, Gillett & Courtright, with Mr. W. C. Green, for defendaut in error:

In case of an injury to a minor, two causes of action arise; one in favor of the infant for his personal injuries, and one in favor of the parent for loss of service by him or her.

Sibley v. Ratcliffe, 50 Ark. 477; Durkee v. Central Pac. R. Co. 56 Cal. 388; Lehigh Iron Co. v. Rupp (Pa.) 7 Am. & Eng. R. R. Cas. 25; Shearm. & Redf. Neg. § 608; Smith v. Smithson, 48 Ark. 261.

Can these two actions be united? Clearly

not.

In the son's suit the only damages alleged were such as were personal to the son and in this action only such damages are alleged as are personal to the parent.

It was not necessary to allege that the injury was occasioned without any fault or negligence on the plaintiff's part.

Black, Brief and Pleading in Accident Cases, 208, § 143; Holt v. Whatley, 51 Ala. 569; Lopez v. Central Arizona Min. Co. 1 Ariz. 464; Chicago & N. W. R. Co. v. Cos8, 73 Ill. 394; Wilson v. Denver South Park & P. R. Co. 7 Colo. 101; May v. Princeton, 11 Met. 442; Hocum v. Weitherick, 22 Minn. 152; Lee v. Troy Citizens Gas Light Co. 98 N. Y. 115; Urquhart v. Ogdensburg, 23 Hun, 75; Street R. Co. v. Nolthenius, 40 Ohio St. 376; Lee v. Union R. Co. 12 R. I. 388, 34 Am. Rep. 668; Texas & P. R. Co. v. Murphy, 46 Tex. 356, 26 Am. Rep. 272; Baltimore & R. R. Co. v. Whittington, 30 Gratt. 805; Snyder v. Pittsburgh, O. & St. L. R. Co. 11 W.Va. 14; Fowler v. Baltimore & O. R. Co. 18 W. Va. 579; Kelley v. Chicago, M. & St. P. R. Co. 50 Wis. 381.

There was no sufficient evidence of contributory negligence in this case.

Morgan v. Illinois & St. L. Bridge Co. 7 Cent. L. J. 311. See also Isabel v. Hannibal & St. J. R. Co. 60 Mo. 475; O'Flaherty v. Union R. Co. 45 Mo. 74; Kay v. Pennsylvania R. Co. 65 Pa. 276, 3 Am. Rep. 638; Philadel phia & R. R. Co. v. Long, 75 Pa. 257.

The negligence of the parents or guardian of a child in allowing it to stray away or go out unattended is one for the jury to determine, and no rule of law can be laid down which interferes with the jury judging each case on its own merits.

Battishill v. Humphreys, 7 West. Rep. 806, 64 Mich. 504; Keyser v. Chicago & G. T. R. Co. 56 Mich. 559, 56 Am. Rep. 405; East Saginaw City R. Co. v. Bohn, 27 Mich. 503; Rajnowski v. Detroit, B. C. & A. R. Co. 74 Mich. 21; Frick v. St. Louis, K. C. & N. R Co. 75 Mo. 54; Boland v. Missouri R. Co. 36 Mo. 484; O'Flaherty v. Union R. Co. 45 Mo.

the decision seems to be an equitable estoppel rather than any technical conclusiveness of the prior adjudication. Having actively aided a recovery by another person he is clearly estopped thereby from claiming that he himself is the only person who is lawfully entitled to such recovery.

1h v.

90; Mulligan v. Curtis, 100 Mass. 512, 97 Am., Dec. 121; Lynch v. Smith, 104 Mass. 52; Slattery v. O'Connell, 10 L. R. A. 653, 153 Mass. 94; McGreary v. Eastern R. Co. 135 Mass. 363, 352; Com. v. Metropolitan R. Co. 107 Mass. 236; Hunt v. Salem, 121 Mass. 294; Callahan v. Bean, 9 Allen, 401; Mangam v. Brooklyn R. Co. 88 N. Y. 455, 98 Am. Dec. 66; Kunz v. Troy, 6 Cent. Rep. 493, 104 N. Y. 344; Birkett v. Knick erbocker &C. Co. 110 N. Y. 506; Cosgrove v. Ogden, 49 N. Y. 255, 10 Am. Rep. 361; Fallon v. Central Park, N. & E. R. Co. 64 N. Y. 13; Prendegast v. New York Cent. & H. R. R. Co. 58 N. Y. 652; Bahrenburgh v. Brooklyn City, H. P. & P. P. R. Co. 56 N. Y. 652; Thurber v. Harlem Bridge, M. & F. R. Co. 60 N. Y. 326; Drew v. Sixth Ave. R. Co. 26 N. Y. 49; Oldfeld v. New York & H. R. Co. 14 N. Y. 310; Forty-second St. & G. St. Ferry R. Co. 47 N. Y. 317, 7 Am. Rep. 450; Pittsburgh, Ft. W. & C. R. Co. v. Bumstead, 48 11. 221; Chicago & A. R. Co. v. Gregory, 58 Ill. 226; Gavin v. Chicago, 97 Ill. 66; Chicago v. Hesing, 83 Ill. 204; Pittsburg, A. & M. R. Co. v. Pearson, 72 Pa. 169: Kay v. Pennsylvania R. Co. 65 Pa. 269, 3 Am. Rep. 628; Pennsylvania R. Co. v. Lewis, 79 Pa. 33; Hoppe v. Chicago, M. & St. P. R. Co. 61 Wis. 357; Johnson v. Chicago & N. W. R. Co. 49 Wis. 529; Ewen v. Chicago & N. W. R. Co. 38 Wis. 614; Dahl v. Milwaukee City R. Co. (Wis.) 19 Am. & Eng. R. R. Cas. 121; Johnson v. Chicago & N. Y. R. Co. (Wis.) | 8 Am. & Eng. R. R. Cas. 471; Karr v. Parks 40 Cal. 188, 193; Schierhold v. North Beach & M. R. Co. 40 Cal. 447; Payne v. Humeston & 8. R. Co. 70 Iowa, 584; Smith v. Atchison, T. & S. F. R. Co. 25 Kan. 738; St. Louis, I. M. & S. R. Co. v. Freeman, 36 Ark. 41; Robinson 7. Cone, 22 Vt. 213.

In the following cases the court refused to disturb the verdict:

Roller v. Sutter St. R. Co. (Cal.) 19 Am. & Eng. R. R. Cas. 333; East Saginaw City R. Co. v. Bohn, 27 Mich. 503; Chicago & A. R. Co. v. Becker, 84 Ill. 483; Collins v. South Boston R. Co. 142 Mass. 301, 56 Am. Rep. 675; Bliss v. South Hadley, 5 New Eng. Rep. 124, 145 Mass. 91.

It has been held not to be contributory neg. ligence in parents to permit a child of eighteen months to play in close proximity to a railroad line under the guardianship of another child eight years old.

Pittsburg, A. & M. R. Co. v. Pearson, 72 Pa.

169.

Or to permit a boy eleven and one half years of age to drive a team by night, accompanied by a younger son of nine years.

Parish v. Eden, 62 Wis. 272.

Or to permit young children to play upon the sidewalk unattended.

Barry v. New York Cent. & H. R. R. Co. 92 N. Y. 289, 44 Am. Rep. 377; Minick v. Troy, 83 N. Y. 514; Barker v. Savage, 45 N. Y. 191. 6 Am. Rep. 66.

Or to permit a boy four years of age to go upon the street with his sister only eleven years old.

Collins v. South Boston H. R. Co. 2 New Eng. Rep. 649, 142 Mass. 301, 56 Am. Rep. 675.

Or to send a child six or seven years of age,

accompanied by an older brother into a village through which a railroad track runs.

Chicago & A. R. Co. v. Becker, 84 Ill. 483. When children are old enough to go to school, the question whether or not it is safe for them to go through the streets unattended, is usually for the jury.

Lynch v. Smith, 104 Mass. 52; Mulligan v. Curtis, 100 Mass. 512, 97 Am. Dec. 121; Hunt v. Salem, 121 Mass. 294; Schierhold v. North Beach & M. R. Co. 40 Cal. 447.

It has been held that poor parents of infant children are not contributorily negligent if they do not prevent their infant children from stray. ing into the public streets or upon the lines of railways.

*

Pittsburg, A. & M. R. Co. v. Pearson, 72 Pa. 169; Philadelphia & R. R. Co. v. Long, 75 Pa. 257; Pennsylvania Co. v. James, 81 Pa. 194; Pennsylvania R. Co. v. Lewis, 75 Pa. 33; Hoppe v. Chicago, M. & St. P. R. Co.61 Wis.357; Isabel v. Hannibal & St. J. R. Co. 60 Mo. 475; Walters v. Chicago, R. I. & P. R. Co. 41 Iowa, 71; O'Flaherty v. Union R. Co. 45 Mo. 70; Frick v. St. Louis, K. C. & N. R. Co. 75 Mo. 542.

The father has a right of action for loss of services and expenses occasioned by injuries to his minor child, while the child by his next friend, may recover damages for the injuries.

Sibley v. Ratcliffe, 50 Ark. 477; Wilton v. Middlesex R. Co. 125 Mass. 130; Texas & P. R. Co. v. Morin, 66 Tex. 133; Houston & G. N. R. Co. v. Miller, 51 Tex. 275, 49 Tex. 322: Central R. Co. v. Brinson, 64 Ga. 475; Durkee v. Central Pac. R. Co. 56 Cal. 388; Little Rock & Ft. S. R. Co. v. Barker, 33 Ark. 350; Covington St. R. Co. v. Packer, 9 Bush, 455, 15 Am. Rep. 725; Ohio & M. R. Co. v. Tindall, 13 Ind. 366; State v. Baltimore & O. R. Co. 24 Md. 84; Cregin v. Brooklyn City R. Co. 75 N. Y. 192, 31 Am. Rep. 459; McGovern v. New York Cent. & H. R. R. Co. 67 N. Y. 417; O'Mara v. Hudson River R. Co. 38 N. Y. 445; Pennsylvania R. Co. v. Butler, 57 Pa. 335; Oakland R. Co. v. Fielding, 48 Pa. 320; Pennsylvania R. Co. v. Zebe, 33 Pa. 318; Ewen v. Chicago & N. W. R. Co. 38 Wis. 613; Evansich v. Gulf, C. & S. F F. R. Co. 57 Tex. 123; Rains v. St. Louis, 1. M. & S. R. Co. 71 Mo. 164; Cumming v. Brooklyn City R. Co. 24 N. Y. S. R. 718; Shearm. & Redf. Neg. 608; Patterson, Railway Law, 411; Dicey, Parties, 349; Thomp. Neg. 1242; Sawyer v. Sauer, 10 Kan. 519; Cooley, Torts, 682.

To constitute a bar, the former judgment must have been upon the merits and for the same causes of action and between the same parties.

Tucker v. Rohrback, 13 Mich. 73; Beeson v. Comly, 19 Mich. 103.

A parent cannot release her child's right of action for an injury by the admission that it had been warned to avoid the danger.

Power v. Harlow, 57 Mich. 107.

The services of a minor during minority be long to the parent and when a minor is injured so that his ability to labor is decreased, the parent alone can recover damages for the decreased ability of the minor to labor during minority.

Texas & P. R. Co. v. Morin, supra.

Parents are required to exercise such care a

Isabel v. Hannibal & St. J. R. Co. 60 Mo. 475; Walters v. Chicago, R. 1. & P. R. Co. 41 Iowa, 71; Pittsburg, A. & M. R. Co. v. Pearson, 72 Pa. 169; Philadelphia & R. R. Co. v. Long, 75 Pa. 257; Glassey v. Hestonville, M. & F. Pass. R. Co. 57 Pa. 172; O'Flaherty v. Union R. Co. 45 Mo. 70; Kay v. Pennsylvania R. Co. 65 Pa. 260, 3 Am. Rep. 628.

Long, J., delivered the opinion of the court:

This is a suit to recover damages sustained by plaintiff, arising out of the same accident that resulted in his son, Oscar, losing his leg by being run over by defendant's train of cars on November 5, 1886, at Eleventh Street depot in Bay City, which case is reported in 68 Mich. 90. The facts are so fully stated in that case that it becomes unnecessary to restate them here. The claim of damages in the present case is for the loss of Oscar's services during minority, and money expended for nursing, medicine, and professional treatment for him. There are but two questions raised upon this record which we need discuss. They relate to the ruling of the trial court, and its charge to the jury upon the questions: (1) Whether the plaintiff is estopped from recovery for loss of his son's services during minority by reason of a claimed recovery for the same services in Oscar's suit, where the plaintiff appeared as his next friend. (2) The ruling of the court upon the question of the plaint iffs' contributory negligence as affecting his right of recovery. As touching the first question, it appears that the defendant, under its plea of the general issue, gave notice that the said Oscar Baker mentioned in plaintiffs declaration heretofore brought suit in said court, claiming damages for the same cause of action set forth in the declaration in this cause; that said suit was duly tried by said court and a jury, and judgment was rendered therein in favor of the plaintiff; that judgment and costs of said suit have been paid by the defendant herein to the said James H. Baker as next friend to his said son, Oscar Baker; and that said James H. Baker has signed a receipt therefor in full satisfaction of said judgment and costs. After the jury had been impaneled in the present case, and plaintiff had offered testimony to support his action, defendant's counsel objected to any proof being received under the declaration for the reason that in this court, prior to the commencement of this suit, the same plaintiff, James H. Baker, had commenced a suit for the injury of his son, Oscar, in which suit he recovered verdict and judgment, which suit was taken to the supreme court, and there affirmed, and that judgment had been satisfied by the defendant; that in that suit plaintiff had recovered damages for the boy, or for himself as next friend to the boy, for his crippled condition, and his loss of ability to labor, and therefore plaintiff is estopped from maintaining this suit. The court overruled the objection, and rejected the offered proof,

the testimony the counsel for defendant, in his second request, asked the court to charge the jury as follows: "The plaintiff in this case cannot recover, because he has failed to make out a case, in that (a) he previously brought a suit in this court as next friend for his son Oscar Baker and recovered, and in his declaration in that suit he complained of the same injury sued on here, and did not limit the claim for damages to those accruing only to said Oscar Baker; (b) because the uncontradicted evidence in this case shows that Oscar Baker was guilty of contributory negligence; (c) because the uncontradicted evidence in this case shows that the plaintiff and his wife, parents of said Oscar Baker, were guilty of contributory negligence." These requests were refused, and the court charged the jury: Then comes the loss of the boy's services for the fourteen years without lapse between the time of this accident and the time he would arrive at the age of twenty-one. On the amount of this you have no direct evidence, but you have the evidence derived of an inspection of the boy himself, and the father, and the whole family. ... One question to be got at in the case of damages is: How much worse off in dollars and cents will this plaintiff, James H. Baker, be by reason of the boy having been crippled in the way he is, counting in the loss of his services, and the expenses of taking care of him while he was sick and in the curing of his wound, and the expense of the nurse?" The court further directed the jury that, as none of the items involved in this suit could be legally proved or recovered for in the suit brought by Oscar, therefore the plaintiff would not be barred from recovering such damages in this action.

We have looked into the former record,— the suit of Oscar against the defendant company,-and find that the declaration in that case contains two counts. The allegation as to damages in the first count is, after stating the injury and the disorders arising therefrom: "He so remained for a long space of time, to wit, from thence hitherto, during all of which time the plaintiff suffered great pain, and was injured and prevented from doing any work and from attending school, and is still so prevented, all to the damage of the plaintiff," etc. In the second count it is stated that "he so remained for a long space of time, to wit, from thence hitherto, during all of which time he, the plaintiff, suffered great pain, and was and is injured and prevented from doing any work and from attending school, and is, and always will be, injured and disabled from earning his own living; wherefore the plaintiff says he is injured and has sustained damages," etc. Evidence was introduced under that declaration by the plaintiff to sustain his cause of action, and the court charged the jury as follows: "If you conclude that the plaintiff is entitled to recover, consider then the extent or the amount of damages that he has suffered. Now, in determining that question the jury are to take into considera

The case therefore did not involve the question involved in the present suit, and no such rule is contended for there as here. In Central R. Co. v. Brinson, supra, the

As we have before stated, the sole ground upon which the plaintiff's counsel now contends for the right to recover damages in behalf of the father, which have once been recovered in behalf of the child by his next friend, is that the child had no legal right to recover for such damages in the action brought by him. In the case of Texas & P. R. Co. v. Morin, supra, the action was brought by the minor, by his father as next friend, against the company for personal injuries. The trial court charged the jury that in estimating damages they had a right to take into consideration his capacity to earn money. This was held error, for the reason that the services of the infant belonged to the parent during his minority, and not to the infant, unless it was shown that the child had been emancipated by the parent; and the court cited in support of this Houston & G. N. R. Co. v. Miller, 51 Tex. 275, and Sawyer v. Sauer, 10 Kan. 519. The question of the right of the father to recover such damages, though the same had been recovered by the infant in another action, was not involved in the case.

ID Durkee v. Central Pac. R. Co. the action was by the father to recover damages for negligent injury to his infant son, and it was said by the court that "whatever was merely personal to the infant should not enter into what was the father's damages, because for them the son would have a right of action;" and that the court states the rule laid down by Shearman & Redfield, in their work on Negligence, (§ 608,) as follows: "The damages recoverable by a parent, guardian, or master for a negligent injury to the person of his child or servant are strictly limited to an amount fully compensatory for the consequent loss of services for a period not exceeding the minority of the child, or the term of service of a servant, and the expenses which the plaintiff has incurred in consequence of the injury, such as

his son, to recover damages for negligent injuries. To this suit was filed the plea of the general issue, and a special plea in bar, which was that the father of the plaintiff had brought his individual suit for the same cause of action and for the same injury which was then pending and undetermined in the same court. On motion this plea was stricken out, and the cause proceeded to trial under the general issue, and plaintiff had judgment. It was held that the striking out of this plea was not error, for the reason that a minor, being damaged in his person, may bring suit to recover for any permanent injury which he has sustained reaching beyond his majority, while the father may sue for trespass done or damage sustained whereby he loses the services of the child, as also for any expense incurred in and about the healing and restoring of said child's health. It will be noticed that the question involved in that case is not the same as that involved in the present case; the court holding that it would not bar the infant's right of recovery simply because the father had brought his action in the same court, and had set up in his complaint or declaration a claim for damages of like character as those claimed by the infant in his suit, the court laying down the proper rule of damages under which each might recover.

In Wilton v. Middlesex R. Co., supra, the action was by the father for the loss of services of Ellen Wilton, his daughter, occasioned by her being run over by one of defendant's cars. At the trial it appeared that Ellen, in the name of her father as next friend, had brought an action and recovered $5,000 for the injuries done her by this accident. This case is reported in 107 Mass. 108. The trial court was asked to rule upon this that, the former action having been brought by the plaintiff, and money having been paid to him as next friend, he could not bring an action for any loss of service, because he had already been paid therefor. The trial judge refused so to rule, and held the plaintiff entitled to recover the reasonable value of Ellen's net earnings to her father over and above what, but for the accident, her support would have cost, and gave judgment for the plaintiff. The court said of that case: "The previous suit is