Page:The American Cyclopædia (1879) Volume XIV.djvu/776

 750 SEDUCTION been by the deliberate act of the lawgivers, though, like the Roman laws, they throw the strongest defences against violence around the chastity of women, yet denounce no penalties against the mere seducer. But though the common law does not hold the seducer to any 'direct responsibility, yet indirectly it does reach him. The seducer who renders a female ser- vant incapable of her usual labor and service is bound to make indemnity. This is the princi- ple and basis of almost all suits for seduction ; they are actions on the case, and rest immedi- ately on the loss of service consequent upon the seduction. By a fiction of the law the relation of master and servant is conceived to exist between parent and child, and thus a fa- ther may have an action for the seduction of his daughter. The father may also found his suit on the seducer's illegal entry upon his premises, and may then state the seduction and loss of service in aggravation. But it is essential to this mode of proceeding that the daughter lived with the father at the time of the seduction, or, if away, was subject to recall at his will ; and it is therefore inapplicable to very many cases. In the more usual form to which we have referred, namely, of case, the consequential injury being the ground of ac- tion, it is unimportant whether the seduced lived with the father at the time of the seduction or not. -It is now the general rule that exemplary or punitory damages are properly given in such a case, and the amount of them is very much in the discretion of the jury. One of the earli- est cases in which such damages are recom- mended by the court is a case of the year 1800, in which Lord Eldon, at that time chief justice of the common pleas, told the jury they were to regard not merely the loss of service but the wounded feelings of the parent. In 1805 Lord Ellenborough said that redress was to be given to the father not only for his loss of the socie- ty and comfort of his child, but also for the dishonor which he received; and in 1811 that, though it was difficult to conceive on what legal principle the damages could be extended beyond the injury resulting from loss of ser- vices, yet the practice was now inveterate and could not be shaken, and that the feelings of parents and of those who stood in loco parentit were always to be taken into consideration. In all cases then, if the suit is at the common law, however the damages may be increased by other considerations, some loss of service must always be alleged in the declaration, and proved. The English law requires that the actual relation of master and servant shall have existed between the plaintiff and the person seduced at the time of the seduction ; so that where a daughter under age was seduced by her master, while living in service away from her father's house with his consent, and with no intention of returning to it, the father was held to have no ground of action. The rule is not so strict in the United States; and in a leading case in New York, where a daughter under age, with the consent of her father, lived with her uncle, who agreed to pay her for such work as she chose to do, but made no agree- ment with her for any fixed time of service, and while in her uncle's house she was seduced and returned to the house of her father, who paid the expense attending her confinement, it was held that, as the father had made no con- tract binding out his daughter, he could still control her services ; the fact that the daugh- ter had no intention of returning could not affect the father's right ; she was his servant de jure; and as the defendant had done an act which deprived the father of services that he had the right to exact, he must respond in damages. The father's legal right to the ser- vices of his daughter extends to her majority, which at the common law is the ago of 21 years. If she is living with her father during her minority, proof of this fact alone suffices to maintain the issue in respect to the fact of service ; service is presumed. If the daughter is already of full age, there must be proof of service in fact rendered to the father. Proof of very slight service suffices, if she is still liv- ing with him ; but if she is absent from home under a contract made by herself since attain- ing her majority, the father has no right of suit. His action, however, will not be defeated if the defendant hired the daughter for the purpose of getting her into his possession and out of the father's control, even though she were of full age at the time of the hiring, provided she were then living in her father's family. The hiring being fraudulent and therefore null, the relation of master and servant was never con- tracted between the daughter and her seducer, and so was never interrupted as between her and her father. The action may be maintained by any one who stands in loco parentit^ by a guardian, for example, or by a relative who has adopted the female as his own child, in the same cases and under the same conditions that give a cause of action to the natural parent. A mother cannot maintain an action for the seduction of her daughter during the father's life, though the child be not born until after the father's death. There must be an actual or constructive right to the daughter's service at the time the injury is committed, that is to say, at the time of the seduction. If the rela- tion of master and servant first arises after the injury has been done, there is no ground to claim indemnity for the resulting loss of ser- vice. Upon the trial of the cause, the fact of the seduction may be proved by the woman herself. Her general character for chastity is considered to be in issue, and may be im- peached by general evidence on the part of the defendant, and be supported by the plaintiff in like manner. But though the evidence dis- closes the woman's previous criminality with others, it will avail nothing if the jury are sat- isfied that the defendant is the father of her child, and so the cause of the plaintiff's loss of service. It has been held that if an attempt