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SEDUCTION.

I. Of a Wife.

By the theory of the common law, a husband had a property in his wife's person, as well as a right to her society. Unlawful intercourse with the wife was therefore a trespass:

Tinker vs. Colwell, 193 U. S. 473.

The husband might for such injury also maintain an action upon the case, his grievance then being conceived as the loss of his wife's society consequent to the seduction.

Even in the absence of carnal intimacy between the defendant and the plaintiff's wife, the husband may maintain an action on the case for alienating the affections of his wife or for procuring her to absent herself from him. And it has been held that, where the defendant has, by statements and insinuations concerning the plaintiff, alienated the affections of the plaintiff's wife and caused her to leave him, it matters not that the statements made were true: "if the insinuations were true, and by means of those the defendant persuaded the plaintiff's wife to do an unlawful act, it was unlawful in the defendant": Winsmore vs. Greenbank, Willes, 577.

Since the husband has an absolute right in the personal integrity of his wife, the liability of one who has unlawful relations with her does not depend upon his knowledge that she is married or upon other circumstances; the liability attaches, for instance, even though the defendant be himself rather seduced than seducer, and yields to the solicitations of the woman. Accordingly, in an action for criminal conversation, the defendant cannot defeat the action by showing the bad character and loose conduct of the plaintiff's wife before her improper relations with the defendant; but evidence of such facts is admissible to reduce the damages by showing that the husband is not so greatly injured as he would have been had his wife been of better character.

It was at one time held, by LORD KENYON, that proof of plaintiff's adultery would bar his action for criminal conversation with his wife: Wyndham vs. Wycombe, 4 Esp. 16; but it has since been settled that the plaintiff's gallantries and his neglect of his wife go only in reduction of the damages: Bromley vs. Wallace, 4 Esp. 237.

The rule on the subject of damages in cases of this character is that stated by BULLER, J., in

Duberly vs. Gunning, infra, p. 229.

II. Of a Daughter.

The father has not, at common law, any such property in the person of his daughter as in that of his wife. The seduction of a daughter is, therefore, not per se a wrong to the parent, but becomes so only as it bears upon the relation existing between them of master and servant. If, by reason of seduction by the defendant, the daughter is disabled to perform the service to which her father-or, if he be dead, the mother or some other person in loco parentis-is entitled, the defendant is liable for such injury to the parent in his relation as master. Although in some cases, the action of trespass has been allowed to lie for the seduction of a daughter, the wrong consists not in the carnal intercourse but in the injurious consequences of that intercourse.

I. The Service. No action lies, therefore, for the seduction of a daughter merely as such, but only where the daughter can be recognized as a servant of the parent. On which subject these distinctions are to be observed:

1. If the daughter be an infant and resident in her father's family, she is deemed without further proof to be his servant, the paternal right to require service being conclusive as to the relationship.

2. If she be an infant and resident elsewhere than in the father's house, the English and the American cases hold differently as to her status. In England, if she leaves her father's home without the intention to return as a member of the family,

she ceases to be his servant, whether or not she be under contract to serve elsewhere:

Dean vs. Peel, infra, p. 231;

Hedges vs. Tagg, infra, p. 231.

In the United States the father's right to require the service of his infant daughter is held to continue the relationship of master and servant until she reaches her majority, and to be unaffected by the girl's absence from home or even by her being under contract for service elsewhere; therefore, if an infant daughter be seduced, her father may maintain an action there for, notwithstanding that she is not resident in his family, and although she may be in the actual service of some one else:

Martin vs. Payne, infra, p. 231.

Even in England, in the case of an infant daughter in service away from home, so soon as her employment is terminated, her father's relation of master is instantly renewed; and he may recover against one who seduces her before she returns to his home:

Terry vs. Hutchinson, infra, p. 233.

3. If the daughter be of age when she is seduced, the right of her father to recover depends upon the actual relationship of master and servant. In the case of an adult daughter not resident in her father's family, there can be no recovery. If she is living with her father and performing service for him, she may be recognized as his servant so as to entitle him to damages on account of her seduction. In such a case it is not necessary to show a binding contract for service; and even where the daughter is married, but has left her husband and returned to her father's house, the father may recover as master against one who seduces her.

The relationship of master and servant being establishedwhether from the daughter's mere minority or from her rendition of service after full age-it is not necessary that the service actually rendered be at all substantial, but any very slight discharge of domestic duty will suffice. Thus, in Bennett vs.

Alcott, 2 T. R. 166, the daughter was thirty years of age and only occasionally did acts of service, but her father was allowed to recover against one who seduced her; and Buller, J., said:

"But in actions of this kind, the slightest evidence is sufficient; even milking cows. Here instances of actual service were proved, and therefore it is immaterial whether the daughter were of age or not. Neither is it material whether the servant be or be not hired for a year, or whether she has any wages; it being sufficient that she is a servant de facto."

II. The Damage. Since the seduction of a daughter is not in itself a legal injury, but becomes a tort only by reason of its injurious consequences, the father or other person standing in parental relation cannot maintain an action for such a grievance unless it is followed by some actual damage, in the sense of material loss caused by the impairment of the daughter's ability to render service. And that loss must, in most jurisdictions, be some direct and natural result of the intercourse, it being generally requisite to show disability and expense occasioned by pregnancy, though in some American cases venereal infection or other sexual disorder has been recognized as a disability properly referable to seduction. If, therefore, pregnancy does not occur or perhaps some disease directly caused by the carnal intercourse-the seducer is not made liable by showing other detrimental consequences from his act, such as impairment of the girl's reputation, or mental distress, though such distress should cause depression of health or even actual bodily malady: as where a young woman who had been seduced became ill by reason of the seducer's subsequent abandonment of her:

Boyle vs. Brandon, 13 M. & W. 738.

On this point, however, there is authority to the effect that any incapacity to render service caused by the seduction will be sufficient damage, though there be neither pregnancy nor venereal disease:

Abrahams vs. Kidney, 104 Mass. 222.
Bigelow on Torts, p. 272.

Though the character of the father as master is theoretically the ground upon which he is entitled to damages for the seduction of his daughter, and though there must be some colorable proof of such character, the relationship "is little more than a legal fiction used as a peg to hang a substantial award of damages on, as compensation, not to the master, but to the head of the family": Simpson vs. Grayson, 54 Ark. 404. Accordingly, once the fact of service is shown, together with damage legally deemed to result from the seduction, the jury are left very much at large to assess damages without reference to the value of the daughter's services or the actual pecuniary loss to the father, but according to their appraisement of the injury done to the father, the family and to the girl herself in the way of impaired reputation, mental distress and the other incidents of the affair.

III. Defences. The action may be defeated by showing that the plaintiff consented to, or connived at, the improper relations between his daughter and the defendant, or was so indifferent to their indecorums as in effect to license the seduction: thus where the practice of bundling, which is mentioned in Irving's Knickerbocker, was continued (so late as 1804), and a girl was thereby seduced, it was held that the father's culpable negligence in the matter disentitled him to recover, notwithstanding evidence that such familiarity was the custom of the country:

Seagar vs. Slingerland, 2 Caines Cases, 219.

Seduction of a Wife.

Duberley vs. Gunning, 4 Term Rep. 652. King's Bench (1791).

This was an action for criminal conversation, at the trial of which it appeared that there had been many indecent familiarities between the defendant and the plaintiff's wife in the presence of the plaintiff, who was, himself, at the same time engaged in like indecorum with another woman, and that the plaintiff kept a mistress. Notwithstanding these facts, the jury

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