3 N.J.L. 583 | N.J. | 1809
The declaration in this case, as it is seen, charges the defendant with having, on the 15th of March, 1806, and at divers other days and times, between that day and the 15th of December, in the same year, debauched Elizabeth Moffitt, the plaintiff’s daughter and servant, per quod, ifc.
The testimony is, that an illicit intercourse between the defendant, and the said Elizabeth, took place in March, 1806, in the life time of the father of said Elizabeth, and while she lived in bis bouse: that she was, during that time, debauched and got with child by the said defendant; but that no such intercourse existed between them after the death of her said father.
The first question is, whether the mother can, now that the father is dead, maintain an action for this injury: — And I am of opinion she cannot.
In the case of Postlethwaite, v. Sparks, in 3 Bur. 1878, the facts were these.—
The daughter of Postlethwaite, the plaintiff, being- twenty three years of age, hired herself to one Saul, as a servant. During her service, she was debauched, and got with child by the defendant, Parkes; and becoming unable to perforar; her duties, Saul, her master, [*] paid her her wages, and discharged her. The plaintiff, her father, received her when no one else would, and boarded and lodged her in his house. He also provided for her, and maintained her in her lying in, at
And the reason why it would not lie, is, not because the daughter was above the age of twenty-one years, as a late writer has supposed, (for it was agreed on all hands that that makes no difference) but because the daughter, at the time she was debauched and gotten with child, was not the servant of the father, but of another person.
Ever since this case, I take it to be perfectly well settled that this action will not lie, unless the daughter he proved, in some way or another, to have been, at the time of the seduction, the servant of the plaintiff.
For debauching the daughter, simply, an action will not lie by the father; but if there be loss of service consequent thereupon, then the action will lie; and hence the loss of service has been called the gist of the action; so that in all these cases, the daughter must also be the servant of the plaintiff, at the time of the injury done. It is true, that the very slightest evidence of service, lias been thought to be sufficient, as the milking of cows, &c. And indeed, the law will sometimes raise up a constructive service, as in consideration of maintenance, &c. But here there is no such evidence, no circumstance from which such constructive service can be raised; Nay, the very contrary is stated on the face of the record. Elizabeth Moffitt, the daughter, was at the time of the seduction, the servant of the father, living inhis house, occupied in his business: he is now dead, and the mother brings this action.
In the case cited from Burrow, the father was obliged to receive the daughter into his house, and [*] not only sustained the loss of her service, while lie maintained her there, but also was put to great charge and expense in her lying in; but because she was not his servant at the time of the seduction, no action would lie.
So in the case before us; the daughter, at the time of the seduction, was living in the house of her father, and occupied in his service. After his death, the mother brings this action, endeavoring to connect the original injury, done in the life time of the father, with the special damage arising to herself, after his death, and so by putting the two together, to make out a causeof action. She has been illy advised; the action will not lie; she ought to have been non suited.
I am well aware, that actions of this kind have been highly favored in courts of justice; that they have been made merely the form of getting at the violatoi’s of female chastity and honor ; that the loss of service laid in the declai-ation, is by no means the measure of damages, but that that being once
Having said this much on the matter contained in the bill of exceptions taken to the opinion of the court [*] below, in refusing to non suit the plaintiff I forbear to animadvert upon the charge to the jury. This, besides that it goes upon the principle above investigated, contains other matter altogether inadmissible, but which it would be unprofitable to make the subject of argument in deciding this case. In my opinion, the judgment must be reversed.
It is universally admitted, that a parent cannot maintain an action for the seduction and getting with child his daughter, though attended with the most aggravated circumstances and poignant distress. But courts, to give a remedy for so great an injury, have permitted parents, in such situations, to bring actions for the actual loss of service of a child so seduced, and the expenses they have been put to in maintaining them. This action has undergone a variety of modifications, since its first introduction into courts of law, unnecessary to trace on the present occasion. But I consider the rule is now settled, that if a daughter, let her age be what it may, living with, and under the control of a parent, is begotten with child, such parent may maintain an action against the seducer, for the loss of service, and expenses he may he put to, in consequence of such getting with child; and juries, according to the circumstances of the case, are more or less liberal, in a verdict for damages.
In the present case, the daughter was seduced in the life time of the father, but no loss of service happened in his life time, nor was lie put to any expense on that account. He then could not have maintained an action. On his death, every parental right, and every parental duty, immediately devolved on the mother; she justly claimed all the benefit of her daughter’s services, and was, if able, obliged to maintain her. She actually suffered all the loss of service, and
As my brothers do not agree; and the Case is important in point of principle, and attended with some difficulty, I shall give my opinion at considerable length.
The questions in controversy in this cause, arise on A record .brought up- by writ of error, from the Somerset Common Pleas. The action below, was an action brought by the mother, for assaulting her daughter, and getting her with child, per quod servitium amisit. The facts, as they áre disclosed by the first bill of exception, arc, that in September or October, 1805, the defendant began to pay his addresses, by way of courtship, to the daughter, at her fathers house, lie being then living. That he continued his visits, and in March following, seduced her, and got her With child,ánd still continued his visits. - That in the latter part of the summer following, the father died, on which the defendant discontinued .his visits. The daughter continued to live with her mother, from the [*] death of her father, till the trial. The mother was at the expense of her lying in. .
It is contended by the defendant below,; the plaiiitiff hi error, that the mother cannot maintain this action, as the assault and getting’ with child, was done during the life time bf the father. This is the first question for us to decide. If the mother cannot maintain this action, it is evident that no one else can. The father is dead; and the' right of action, if he líád any; died with him, and does not survive to his representatives. If therefore, the mother cannot maintain this action, there is evidently a wrong without a right; an
There is, however, another decisive answer to the ground of error alledged under this bill of exception, which is, that it is bottomed on the court’s refusing to nonsuit the plaintiff. The court not being bound to nonsuit, I apprehend their refusing to do it, cannot be assigned as error.
The question brought up by the next bill of exception, is, Whether the Court of Common Pleas over-ruled legal testimony? It appears that the plaintiff below called a witness to prove the general good character of the daughter before the seduction: — That the counsel for the defendant put the following question to the witness: — What was the general character of the said Elizabeth among the young men, before her connexion with the defendant? On an objection to the question, the court over-ruled it. The character of the
The third and last bill of exception, brings up for the consideration of this Court, the charge of the Court of Common Pleas to the jury. As to this, the court charged the jury, that in this action the plaintiff could only recover damages for the injury which she had sustained since the death of her husband, and since her right accrued to the service of her daughter. So far the plaintiff in error cannot have any reasonable or legal ground of complaint. But the charge continues as follows: “But if the daughter sustained a fair character before her connexion with the defendant, and he had seduced her, in consequence of which, she had become loose and abandoned in her conduct, and that the plaintiff had sustained any injury by the loss of reputation or otherwise, since the death of her husband, that it was competent for the jury to take such loss into their consideration, as the ground of the verdict they might find.”
I think that the opinion contained in this part of the charge, is not law. There is no doubt a material distinction between the formal technical part of the action to which the observations on the first objection principally apply, and the substantial injury intended to be redressed by these actions, which, as I apprehend, is to recompence the father for the injury done to his feelings by the wanton and lawless breach made upon the peace and happiness of his family, by the dishonorable and faithless conduct of the defendant. An opinion is also entertained, and as I apprehend, sanctioned by universal practice, that the jury [*] may take into their consideration a wrong done to the daughter, and remunerate her in damages for the injury done to her feelings and reputation, by the perfidious arts practised upon the weakness of her sex, under the seducive and insidious disguise of love
There is nothing in the evidence disclosed by the several bills of exception to which this jiart of the charge could apply. But as the whole of the evidence is not necessarily put into the bills of exception, some evidence of the kind may have been given, and the jury possibly misled by this part of the charge. For this reason, I am of opinion, that the judgment of the Common Pleas be reversed; and that a venire facias de novo issue. I have the less reluctance to this, that if the whole of the evidence is contained in the bills of exception, the jury have not assessed adequate damage. On the other hand, if the defendant below has a better cause than what appears by this record, he may have another chance with a jury of 1ns country.
Judgment reversed, and venire de novo awarded.