and lived with him, and acted as his servant. During this resi dence with her father she was debauched by the defendant, and had a child by him. It was holden (7), that the relation of master and servant might and did exist in this case; and that in the absence of any interference by the husband, it was not competent to the defendant, a wrongdoer, to set up the rights of the husband as an answer to the action.

Since the new rules, it has been holden, that in an action of trespass for seduction, the plea of Not Guilty does not put the plaintiff to proof of the service, but admits it (m).

Witness.-The daughter or servant is a competent witness to prove the case.

:

Plaintiff brought trespass against the defendant for breaking and entering his house (n), and debauching his daughter, by which he lost her service for a long space of time. Upon the trial it appeared, that the defendant was admitted in the way of courtship to visit the young woman: that proposals had been made on both sides that one night she went to bed, and left her chamber window open, and the defendant, by setting a ladder to her window, got into her chamber, and having lain with her, she became pregnant, and afterwards had a child, whereby the father was put to a great expense. These facts the judge at Nisi Prius admitted the daughter to prove; upon which the jury gave 1507. damages. A motion for a new trial was made, on the following grounds; 1st, Because the verdict was against evidence, there being no proof of any trespass committed in breaking the house, but on the contrary, that the window having been left open by the plaintiff's daughter, the defendant entered by virtue of a license from her, and so could not be a trespasser. Norton v. Jason, Styl. 398; Hunt v. Wotton, T. Raym. 260. 2dly, That the daughter, who was particeps criminis, and swearing for her father, and in consequence of that, swearing for herself, was not a competent witness. 3dly, That the damages were excessive, no loss of service having been proved, and the jury mistaken in their assessment of the damages, the girl having since the trial brought another action for breach of the promise of marriage. Sed per Curiam, as to the first ground, the defendant's entrance into the house without the privity of the father or mother, is plainly a trespass; as to the 2nd, the daughter was a competent witness, and no more interested in the question than servants in actions brought by their masters for beating them, per quod their masters lost their service, in which cases the servants are constantly admitted. 3rdly, The damages in this case are far from being excessive: the defendant being admitted in an honourable way, made a very ungenerous use of the acquaintance with the daughter, which is a great aggra

(1) Harper v. Luffkin, 7 B. & C. 387. (m) Torrence v. Gibbins, Q. B., M. T. 1843.

(n) Cock v. Wortham, B. R., M. 10 Geo. II., MSS., S. C. Shortly reported in Str. 1054.

vation of his offence, and it is hardly possible to estimate the damage of a father under such circumstances; and as to a loss of service not having been proved, that was quite immaterial, the rule being, that where the loss of service is the gist of the action, there it must be proved; as in trespass by a master for beating his servant; but where laid only in aggravation of damages, loss of service need not be proved; and here the action is founded on the trespass in breaking the house, and the loss of service is only consequential to it. As to the new action that has been brought, we cannot take any notice of it.

Witnesses cannot be examined, on the part of the plaintiff, as to the daughter's general character for chastity, except in answer to evidence adduced by the defendant of general bad character (0). A specific breach of chastity alleged on the part of the defendant will not afford ground for such examination (p). Nor does the mere cross-examination of the daughter to show that she had been guilty of improper conduct, entitle the plaintiff to call other witnesses to her character (q). The daughter is not bound to answer, in crossexamination, whether she had not previously been criminal with other men (r). Neither can evidence be admitted that the defendant accomplished the seduction by means of a promise of marriage (s). The defendant may give evidence not only of the general bad character of the plaintiff's daughter, but he may also examine witnesses to prove particular acts of sexual intercourse (t) between them and the daughter; this evidence, however, does not go to the verdict, but only in mitigation of damages, if the jury are satisfied that the defendant had such intercourse with plaintiff's daughter as caused him to be the father of the child alleged to have been gotten by him.

Money cannot be paid into court, stat. 3 & 4 Will. IV. c. 42, s. 21.

Of the Damages.

Liberal damages are usually given in an action for seduction, and the courts are disinclined to grant new trials merely on the ground of excess in that respect (u). From a laudable desire, as I conceive, to suppress the vice of seduction, against which our criminal code has not provided any punishment, many eminent judges have thought it proper to direct juries, in ascertaining the amount of the damages in this action, to have regard not merely to the injury sustained by the loss of service, a proper compensation for which might amount to a few pounds only, but also to the wounded feel

(0) Bamfield v. Massey, 1 Campb. 460. (p) S. C.

(g) Dodd v. Norris, 3 Campb. 519.

Ib.; but see Bate v. Hill, 1 C. & P. 100, Park, J.

(•) Dodd v. Norris, 3 Campb. 519.

(t) Verry v. Watkins, 7 C. & P. 308, Alderson, B.

(u) Tullidge v. Wade, 3 Wils. 18; Edmonson v. Machell, 2 T. R. 4; Bennett v. Allcott, 2 T. R. 166.

ings of the parent or party standing in loco parentis. In Southernwood v. Ramsden, Middx. Sittings after H. T. 19th Feb. 1805, which was an action by a custom-house officer against a cowkeeper for the seduction of the plaintiff's daughter, per quod servitium amisit, Lord Ellenborough, C. J., in explaining the nature of this action, said that it was laid as a trespass, and was founded on the injury done to the father by the loss of the service of the child; this was necessary to let in the case, but when this was established, further damages might be conceded for the loss which the father sustained by being deprived of the society and comfort of his child, and by the dishonour which he receives. The jury gave 3007. damages. Lord Eldon, C. J., had expressed a similar opinion at Bristol Summer Assizes, 1800, in the case of Chambers v. Irwin, where the action was brought by an aunt, for the seduction of her niece, against the defendant, a lieutenant in the navy. The chief justice told the jury, that in calculating the quantum of damages, they were not to look merely to the loss of service, which might amount only to a few pounds, but also to the wounded feelings of the party. The jury gave 2007. damages. From the amount of the damages in the preceding cases, it will be observed that due respect was paid by the jury to the direction of the judge. It may be remarked, that although this practice of giving damages for the wounded feelings of the party can scarcely be reconciled with the strict rule of law, which entitles a person to recover only secundum allegata et probata; yet when the nature of the vice of seduction, and the pernicious consequences which result from it, are duly considered, few persons, (however anxious they may be that the boundaries between civil injuries and criminal offences should be preserved as distinct as possible,) will regret that such a practice has been adopted. Since the first publication of the preceding remarks, an application was made to the court of B. R. to set aside an inquisition on the ground of excessive damages (x), where the plaintiff had declared against the defendant for the seduction of his adopted daughter and servant, and the jury had given 1007. damages, although it appeared that the only pecuniary damage which the party had sustained, was the being obliged to hire another servant for five weeks during the lying-in. The plaintiff had been a serjeant in a regiment of the line, and the servant was the daughter of a deceased comrade, whom the plaintiff had adopted and maintained. It was urged, that she could only be considered as a servant; and a case was cited as having been tried before Chambre, J., at Worcester, where, upon an action brought by a father for the seduction of his natural daughter, that learned judge told the jury they must consider her merely in the character of a servant, and award the plaintiff a compensation for the loss of service only. The court, however, in the present instance, refused the application, Lord Ellenborough, C. J., observing, that the

(x) Irwin v. Dearman, B. R., E. 49 Geo. III., MS., and 11. East, 23.

courts had uniformly expressed their reluctance to disturb the verdict in this action merely on the ground of excessive damages, and referred to Edmonson v. Machell, 2 T. R. 4,—that it was a case sui generis, where, in estimating the damages, the parental damages, and the feelings of those who stood in loco parentis, had always been taken into consideration; and although it was difficult to conceive upon what legal principles the damages could be extended ultra the injury arising from the loss of service, yet the practice was now inveterate, and could not be shaken. He added (y), that the action having been considered in Edmonson v. Machell to extend to an aunt, as one standing in loco parentis, he thought that the present plaintiff, who had adopted and bred up the daughter of a friend and comrade from her infancy, seemed to be equally entitled to maintain the action on account of the loss of service to him, aggravated by the injury done to the object on whom he had thus placed his affection.

(y) 11 East, 24, 5.

CHAPTER XXX.

NUSANCE.

I. In what Cases an Action for a Nusance may be maintained, p. 1118; and herein of the Right to Use of Light, p. 1122; Water, p. 1124; Way, p. 1126, 8; and Pew, p. 1129. II. By whom and against whom an Action for a Nusance may maintained, p. 1129.

III. Pleadings, p. 1131.

IV. Evidence, &c., p. 1133.
V. Costs, p. 1133.

be

I. In what Cases an Action for a Nusance may be maintained. AN action on the case lies for a nusance to the habitation or land of another; as, if A. build a house so as to hang over the land of B., whereby the rain falls upon B.'s land, and injures it, B. may maintain an action against A. for this nusance (a).

It would be an endless task to enumerate all the instances of nusance, for which an action may be maintained. It may be sufficient to observe, that the erection of anything offensive so near the house of another, as to render it useless and unfit for habitation, e. g., the erection of a swine stye (b), lime-kiln (c), privy (d), smith's forge (e), tobacco-mill (f), _tallow-furnace near a common inn (g), or the like, is actionable. The principle on which the rule of law proceeds, is, sic utere tuo, ut non lædas alienum (h), "enjoy your own property in such a manner, as not to injure that of another person. According to this rule, a party is liable for the consequence of his own neglect. Hence it has been holden (i), that an

(a) Penruddock's case, 5 Rep. 100, b.; 1 Rol. Abr. 107, pl. 18; 2 Rol. Abr. 140, pl. 11.

(b) Aldred's case, 9 Rep. 59, a.

(c) Per Wray, C. J., S. C.

(d) Jones v. Powell, Hutt. 136.

Bradley v. Gill, Lutw. 69.

Styan v. Hutchinson, London Sit

tings after M. T. 40 Geo. III., B. R., Kenyon, C. J., MSS.

(g) Morley v. Pragnell, Cro. Car. 510. (h) 9 Rep. 59.

(i) Vaughan v.

Menlove, 3 Bingh. N. C. 468; 4 Sc. 244, recognizing Turbervil v. Stamp, Salk. 13.