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1816.

PROSSER

to them. If that can be main is clear, therefore, that this tained as to an assignment, a commission, standing on a condenial by agreement between certed act, cannot be supported. the creditor and the debtor I should be inclined to give to must be considered equally another creditor, not a party. liable to objection, as a con

to that act, the opportunity, certed act of bankruptcy. It if he can, of sustaining it.”

SMITH.

1816.

YORK
SUMMER ASSISES, 56 GEORGE III. 1816.

FARMER V. JOSEPH,

July 92.

the

THIS was an action for the seduction of the

In an action plaintiff's daughter. The only point was the brought by a manner in which the cause was conducted on the seduction of

his daughter, part of the plaintiff, who was a working man, and it is not neces. had nine children. The eldest, for whose seduc- the action,

sary, to sustain

that the daughtion the present action was brought, had been

ter should be at service in the family of the defendant's uncle. produced as a Suspicion had attached upon her intercourse trial. with the defendant; she was in consequence removed to another situation, from which she returned to her father's house. Here she was again in the habit of receiving her seducer with the privity of her father, and of sitting up with him at late hours of the night, after the family had retired to rest. A younger daughter of the plaintiff proved the acknowledgment of the defendant that he had seduced her sister, and that he was the father of a child which she had borne. After some evidence of the defendant's circumstances, the plaintiff's counsel rested the case here, and the girl herself was not produced as a witness.

1816.

FARMER

JOSEPH.

Hullock, serjeant, for the defendant, contended, that the case of the plaintiff, left so bare of evidence, should be dealt with upon the strict legal principles on which this action was founded; and that the damages should not exceed the value of the service actually lost. He admitted that, in most cases of this sort, the condition of service was regarded as a mere conveyance to the action. It was the form through which the injury was presented to the Court; and, having obtained its admission upon legal principles, it brought along with it, as parts of itself, all the circumstances of

But, where the object of seduction was not herself produced, the strongest suspicion attached to the quality of the injury. He contended, therefore, that the Jury ought not to estimate the damages upon the ordinary principles which obtained in cases like this.

the case.

Mr. Baron WagD.---The plaintiff has his right of action for the loss of the services of his daughter; a loss which he says he has sustained by the seduction of the defendant. It was not necessary to produce the daughter, though the withholding of her is open to observation. In strictness, this action being founded on the loss of service, the damages ought to have a reference to the extent of the service withdrawn. But an injury of this kind is always complicated with circumstances; and it is difficult to separate one part from the other. Un, doubtedly, if the girl had been produced, the case in all its bearings would have been better understood. But the plaintiff's counsel had a right to exercise their discretion upon this subject,

The Jury found a verdict for the plaintiff, da

1816.

mages 3001.

FARMÉR

Josepii.

Scarlett and Williams, for the plaintiff.

Hullock, serjeant, and

for defendant.

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In the ensuing term, Hul- loss of service, is employed, as tock, serjeant, moved for a

we see, merely to bring the new trial, upon the ground of matter into the Court; merely excessive damages, and dwelt as a name and legal term for strongly upon the circumstance the injury, which the jury may of the plaintiff's not producing estimate according to all the his daughter at the trial. The circumstances before them. Court said, that the fact of And as this loss of service is emnot calling the girl as a wit- ployed only for the purpose of ness was only matter of ob. producing the action into Court, servation to the Jury; and it seems to be considered, after they refused to grant a rule the action is so introduced, as to shew cause on the point merely formal. Therefore, the of the damages.

actual loss of service, like the

quo minus in the Exchequer The action of seduction, in process, is almost impertinent its present extent, may be re to the action itself; and the garded almost as the happy in Courts will accordingly envention of the last fifty years; tertain the action in cases an invention by which the where such service is in itself courts have assisted and sup- totally without value, and in ported the interests of mo its quantity a mere single act. rality, whilst, at the same But the fact of service, howtime, by adhering to the forms ever small, must exist - The of law, and a reasonable fic action must

have footing tion, they have not departed ground. from the necessary precision of Thus, for example, in the legal principles. The reason case of a distant relation, live able fiction, namely, that of ing with a male friend, in loco

1816.

FARNER

JOSEPH.

common

sense

parentis; or an orphan in the the more remote character of a same manner; and in a condi protector, or domestic benefaction of life (such as that of a tor, from Christian duty. gentleman) where no actual We have conceived it necesservice can be imagined, in sary to explain the nature of the

of that this action, as cases are ocword : the Courts, however, curring every day in which will, in all these cases, admit more importance is assigned the action; it will suppose to the mere formal part of the suoh a service as that of a action than belongs to it. Vide daughter to a father ; a do Dean v. Peel, 5 E. R. 45. and mestic attendance and obedi. the cases cited in the

argument ence; and, upon

this

ground, and the notes. Bennett v. All. will not suffer the question of cott, 2 T. R. 166. 3 Burr. service, and therein the juris 1878. Fores v. Wilson, Peake diction of courts of law over N. P. 55.; and Irwin v. Dear. the action, to be disputed. man, 11 East 23., in which it And with respect to the rela was held, that this action could tion of the parent, guardian, be maintained for the seduction protector, or master, bringing of an adopted child. And in the action, the law is equally Edmonson v. Machell, 2 T. R. satisfied with any thing ap 4., it was adjudged that it proaching to the nature of a might be brought by an aunt pater familias ; or even with for the seduction of her niece,

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