Clough v. Tenney, 5 Me. 446

Clough v. Tenney

5 Me. 446 | Me. | 1828

Weston J.

delivered the opinion of the Court at the ensuing term in Washington.

This action is in form an action of trespass vi et armis, and contains two counts The first is guare claumm. for breaking and outer - *448ing the plaintiff’s house, and there assaulting his daughter, Lydia Clough, and getting her with child, whereby he lost her service. The second is for assaulting the daughter, and getting her with child,, whereby he lost her service; without alleging that the defendant broke and entered the defendant’s house, and there did the injury. A motion is filed in arrest of judgment, upon the ground that the injury set forth in the second count, to which alone it is averred the evidencé applied, being in its nature consequential, the proper remedy is case, and not trespass vi et armis. The judge, who presided at the trial, has certified from his notes, that the evidence adduced went in support of the second count only; it appearing that the seduction took place, not in the house of the plaintiff, but elsewhere.

The legal ground upon which the parent, or he who stands in the place of the parent, is permitted to. recover damages against the seducer is, a real or supposed loss of service on his part, occasioned by the injury. This being the consequential and not the direct effect of the seduction, according to the distinctions now well settled between case and trespass, redress must be sought in the form of an action on the case. Where, however, the injury has been done in the house of the plaintiff, an action of trespass quart clausum may be sustained; in which damages may be recovered for the unlawful acts which followed, by way of aggravation. And it is well settled that where there has been an actual breaking of the plaintiff’s close, dam'ages may be recovered for many acts consequent thereupon, for which, if they had stood alone, case would have be§n the proper remedy.

In looking into the old authorities, it is observable, that these distinctions are often overlooked ; and actions of trespass have been sustained for injuries which, according to more modern decisions, were the proper foundation for actions on the case. Since the time of Lord Mansfield, the boundaries between these actions have been more accurately marked, and more strictly defined, and the necessity of adhering to them been illustrated and enforced. And the more modern authorities upon this point, have been received, and regarded as law, in Massachusetts, and in this State. We are aware that the ground upon which this motion is urged, does not go to the merits or justice of the-*449case; but as the forms of judicial proceedings are in so many instances essential to the due administration of justice, great injury would arise to the community by relaxing them. It would occasion a want of precision in practice, which would overturn the rules of pleading, which, although abounding in technicalities, are admirably adapted to present clearly the point in issue between the parties. For these reasons, we are constrained to sustain the motion, and to arrest the judgment. We must, have come to the same result, independent of the certificate of the judge, a general verdict being returned, and one of the counts being bad. Judgment arrested.