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from an unlawful detention 108 where the original arrest was legal.100

110

SECTION 26. SEDUCTION. "Seduction" in its broadest sense means the inducement or incitement to wrongdoing of any kind; in its more specific significance it is the wrong of inducing a woman to consent to unlawful sexual intercourse, by the use of some influence, promise, art, or. enticement which overcomes her scruples or reluc

tance.111

“There is a great conflict of authority upon the question of the common law form of action to be brought for seduction. In a number of decisions, case has been approved,"? in others trespass has been held an appropriate remedy; 113 and according to some decisions, trespass is the only proper remedy.!!4 At least one decision takes the view that case, and not trespass, is the remedy if the offense takes place in the house of another person.'15

A few authorities approve either trespass or case, holding that trespass lies for the

115

209 Dress vs. Mallon, 46 Neb., 121;

Anderson vs. Beck, 64 Miss., 113; Tanenner vs. Morehead,

41 W. Va., 116. 109 For a more complete account

of what constitutes an unlawful arrest see Subject of Criminal Law and Criminal Procedure in

Volume X. 110 Webster's International Dic

tionary. 111 American & English Ency: of

Law Vol. XXV, p. 190; Marshall vs. Taylor, 98 Cal., 55; 35 Am. St. Rep., 144; Robinson

Vs. Powers, 129 Ind., 480. w Clough vs. Tenney, 5 Me., 446;

Briggs vs. Evans, 5 Ired. L.
(N. C.), 16; Fairmount, etc.,
Pass. R. Co. vs. Stutler, 54
Pa. St., 375,

113 Haynes vs. Sinclair, 23 Vt., 108;

Tullidge vs. Wade, Wils. 18. 114 Hobbell Vs. Wheeler, 2 Ark.

(Vt.), 359. Clough vs. Tenney, 5 Me., 446. Where the reasoning of the Court was as follows: “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 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.

) 116 117

118

case;

direct injury per quod servitium amisit, or case for the consequential damages."

Historically, it is perhaps more strictly accurate to consider this action as a species of trespass on the

but the subject is more conveniently treated under the head of trespass. Where the action is considered one of trespass, this view is generally sustained by the trespass involved in the entry into the plaintiff's home for the illegal purpose. “Trespass may be maintained where the defendant illegally enters the father's house, and debauching his daughter may be stated and proved as an aggravation of the trespass, although it may not have been followed by the consequences

of

pregnancy. Where the action is trespass, whether it be followed by pregnancy or not, the illegal entry is considered the gist of the action, and the loss of service, etc., merely as consequential.”' 119

The action of seduction can never be brought by the woman herself, as she has consented to the act." The general rule of the common law is, that the father of the woman seduced is the person who is entitled to bring an action of this character.121 This right continues even after the woman is of age, if she continues

120

FA

4

118 Woodward vş. Walton, 2 B. &

P. N. R., 476; Ditchan Vs

Bond, 2 M. & S., 436. 117 Encyclopaedia of Pleading and

Practice, Vol. XIX, p. 401. 118 "There was no express remedy

given by the law to redress the
wrong done the parent in the
seduction of his child. The
special action on the case was,
therefore, allowed in this as in
other instances where a wrong
was done and no 'original
writ', would be found in
chancery that would suit the
circumstances. This form of

aotion was early accepted
grounded on the idea that the
daughter bore the relation of a
servant to the parent; the
declaration alleging per quod
servitium amisit. Ellington

vs. Ellington, 47 Miss., 329.
119 5 Cow (N. Y.), 117.
190 There are one or two very recent

cases where the woman herself

has been allowed to recover.
11 Kendrick vs. McCrary, 11 Ga.,

603; Thompson vs. Young, 51
Ind., 599; Lamb vs. Taylor, 67
Md., 85; Comer vs. Taylor, 82
Mo., 341.

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129

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to live with her father.122 It has even been held in an extreme case, that this right in the father would exist where the daughter was married and living away from her father; 123 this case, however, probably carries the doctrine too far. The after-marriage of the daughter to a third person will not take away the father's right of action.124

A mother can never sue for the seduction of a daughter during the lifetime of the father; 125 but after the death of the father, the action may be brought by the mother.128 The action may also be brought under proper circumstances, by persons standing in loco parentis; thus the action has been maintained by the woman's guardian; 127 brother,128 brother-in-law,' grandfather,130 uncle,181, aunt,182 cousin,193 step-father," or father by adoption.185 A master can also recover for the seduction of his servant upon proof of actual damages.136

The right of the parents in such action, is, in fact, based, not upon the relationship in itself, but upon

the loss of services.187 Some loss of services must always be proved, but such loss may be very slight or even 12 Garreston vs. Becker, 52 Ill. App. 131 Emery vs. Gawen, 4 Me., 33, 16

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255; Davidson vs. Abbott, 52 Am. Dec., 233. Vt., 570.

132 Manwell vs. Thomson, 2 C. & P., Harper vs. Luffkin, 7 B. & C.,

303; 12 E. O. L., 136. 387, 14 E. C. L., 58.

1$$ Davidson vs. Goodall, 15 N. H., 124 Evans vs. Watt, 2 Ont., 166. 125 Patterson vs. Thompson, 24 194 Kinney vs. Langhenour, 89 N. C.,

Ark., 55; Hobson vs. Fullerton, 4 NI. app., 282.

136 Bracey vs. Kibbe, 31 Barb. (N. 136 Heaps vs. Dunham, 95 III., 583;

Y.), 273. Keller vs. Donnelly, 5 Md., 211. 138 Anderson vs. Ryan, 8 Ill., 583; 127 Ball vs. Bruce, 21 II., 161, but Hourland vs. Hourland, 114 guardianship alone is not suffi

Mass., 517. cient. Blanchard vs. Ikley, 137 Bennett vs. Allcott, 2 T. R., 166; 120 Mass., 487.

Torrence vs. Gibbins, 48 E. 128 Paterson vs. Wilcox, 20 W. C. C. L., 297; Doyle vs. JesP., 385.

sup, 29 I., 460; Stevenson 123 Bali vs. Bruce, 21 III., 161.

vs. Belknap, 6 Iowa, 97, 71 130 Cartwell v8. Hoyt, 6 'Hun. (N.

Am. Dec.. 392. Y.), 575.

423.

365.

nominal. After some loss of services have been proved, damages may be given for the disgrace, etc.198

Mere illegal sexual intercourse with a woman is not a sufficient basis for this action. It is said that there must be the use of arts, enticement, etc.39 Exactly what will constitute such arts and enticements, is difficult to ascertain with exactness. Mere praise or flattery is certainly not sufficient, and there must be something more than a mere reluctance on the part of the woman to commit the act.140 Threats of abandonment are not sufficient,141 nor is there any seduction where the woman is influenced by sexual desire or curiosity.142 On the other hand, threats to discharge the plaintiff from her position has been held sufficient.143 A false promise of marriage will sustain this action,"" and generally deceit of any character. Proof of former unchastity may be considered to show that the sexual intercourse was without enticement, artifice, persuasion, or solicitation.145 138 Simpson vs. Grayson, 54 Ark.,

683, 14 Am. St. Rep., 261; 404; Barbour vs. Stephenson,

Bradshaw vs. Jones, 103 Tenn., 32 Fed., 66.

331, 76 Am. St. Rep., 655. 139 Johnson vs. Holliday, 79 Ind., 143 Brown vs. Kingsley, 38 Iowa,

151; Hogan vs. Cregan, 6 Robt. (N. Y.), 138.

141 Fleetwood vs. Barnett, 11 Cole, 140 Marshall vs. Taylor, 98 Cal., 55.

Am., 77. 141 Baird vs. Boehner, 72 Iowa, 319. 145 Stowers vs. Surger, 68 S.W., 637. 149 Hawn vs. Banghart, 76 Íowa.

220.

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4.

CHAPTER V.

TRESPASS TO REAL PROPERTY.

SECTION 27. TRESPASS QUARE CLAUSUM FREGIT.

The law for the protection of real property against trespass is even stricter than that for the protection of the person. The reason for this rule, is probably, not, that the law puts a higher value on land than upon persons, but because of the greater need for the protection of the former; it is generally easier for a man to protect his own body than his land. Any person who as much as sets foot on the land of another without either the express or implied consent of the owner, or the authorization of the law, is a trespasser. Trespass on real property was redressed by the old form of the action of trespass known as trespass quare clausum fregit.? SECTION 28. ILLUSTRATIONS OF TRESPASS AGAINST

REALTY. The rule against trespassing upon another's land has been carried to such an extreme, that it has been held that if a person, who is mowing his own field, allows his blade to cut through into another field, he is liable in an action of trespass.'

The extent of this principle is well illustrated by the decision in one of the early leading cases on this point, known as the Case of the Tithes. In this case

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I "No man can set his foot upon

my ground without my license but he is liable to an action." Entick vs. Carington, 19 How. St. Tr., 102. • See subject of Common Law

Pleading, Volume XI, Subject

34. • Hicks vs. Paling, Mo. K. B., 297. 1 Y. B., 21 Henry VII, 27 pl. 5.

(1507).

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