Whitney. Elmer.

observe the rules prescribed by law to secure an impartial jury, if their minds are to be subjected to the influence of illegal evidence after they are impanneled. It does not follow that impressions thus obtained will have no effect, although the judge directs them to disregard the evidence. A juror is never made competent by the direction of the judge to disregard any opinion he had formed previous to taking his seat. Such direction has never been thought sufficient to protect a party from its effect. An opinion derived from illegal evidence upon the trial, would be equally prejudicial.

It is useless to conjecture what the effect of the evidence of the promise of marriage, or the charge of the judge thereon, may have been on the verdict. Both were

erroneous.

III. The counsel for the defendant requested the court to charge the jury that they should not consider the evidence of a promise made by the defendant to marry Sarah Whitney, with the view of increasing the damages to be given to the plaintiff. The court refused so to charge, and the defendant excepted. This was error. It embraced an undeniable proposition, which had not been before charged, and should have been given to the jury.

IV. The counsel for the defendant requested the court to charge the jury, that if they should find that the defendant promised to marry Sarah Whitney, that fact should not be taken into consideration with a view to increase the damages to be recovered by the plaintiff. The court refused so to charge, and the defendant's counsel excepted to such refusal. This refusal was error.

V. The counsel for the defendant requested the court to charge the jury that if the jury should find that the defendant promised to marry said Sarah, and that the defendant refused to perform, and broke that promise, such refusal and breach of promise could not be taken into consideration by the jury, with a view to enhance the damages to

Whitney v. Elmer.

be recovered by the plaintiff in this action. The court refused so to charge the jury. To which refusal to charge the counsel for the defendant excepted. This refusal was error. Evidence was given, on the trial, showing that at the time of the promise of marriage, and from June 1867 until after the seduction and carnal knowledge of Sarah, the defendant was sole and unmarried. Evidence was also given tending to prove that after the seduction and carnal knowledge of said Sarah, by the defendant, the defendant broke his promise to marry Sarah, by marrying another person. This request was therefore founded upon evidence given in the case. The request squarely presented the distinct question, whether the father, in an action against the defendant, for the seduction of his daughter, can recover damage for the breach of a marriage contract, made by the defendant with the daughter; and the defendant was entitled to an unequivocal charge upon that point. The jury might, and would, regard the judge's refusal so to charge, as an instruction to them to give the father damages for the breach of promise. The judge had charged that the jury might consider the defendant's promise to marry the plaintiff's daughter with the other circumstances attending the seduction, and they might also regard it (the promise) as one of the circumstances of the case, in determining the damages to be recovered. by the plaintiff, and incidentally said, "not for the purpose of giving damages for a breach of promise of marriage," &c. He did not inform the jury, by his charge, that they could not consider the evidence of a breach of the promise with the view to increase the damages. He in no way informed the jury what effect was to be given to the evidence of a breach of the promise, except by his refusal to charge as above stated.

VI. The judge refused to charge the jury on the subject of the evidence given of a promise made by the defendant to marry said Sarah, or on the subject of the

265 41 509

118a 4

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damages to be given by reason of such promise, otherwise than as charged by him as herein before stated, and declined to charge the above proposition for that reason. To which refusal and decision the counsel for the defendant excepted. This refusal was error. This refusal was error. At the time the judge made this final decision, the counsel for the defendant was about to request him to charge the jury that if they should find that the defendant made the promise of marriage in good faith, and without any design or expectation that the promise should or would in any way contribute or lead to the seduction of said Sarah, and that such promise did not, in fact, in any way, induce or contribute to the accomplishment of her seduction, then, and in such case, the jury should not regard the fact of the promise of marriage, to enhance the damages to be recov ered by the plaintiff. But after the judge had made and announced his decision, and the defendant had excepted thereto, further requests to charge upon the subject were useless, and might have been well regarded as disrespectful to the court. After the evidence of the promise was given, and after the judge's charge, and after the judge had, in the presence of the jury, refused to charge these several requests, it is not difficult to see the effect of the promise, and its breach, upon the verdict.

not of itself a cause There is no adjudged promise may be given

H. Chalker, for the respondent. I. The promise of marriage is of action in behalf of the daughter. case where the point, whether the in evidence to show which was the seducer, has been passed upon or examined. But all the intimations are in favor of such rule. On principle, there can be no ruling against it, for,

II. The having carnal intercourse with a daughter, does not of itself give the parent a cause of action; nor can he maintain the action where the daughter is the se

Whitney v. Elmer.

ducer. It is only the seductive arts practiced that give the action.

III. How can that which was practiced by the defendaut be shown to be a seductive art, but by showing what that thing was? If that thing was a promise, to exclude it is to exclude proof of the very gist of the action. It will be borne in mind that a breach of that promise is quite another thing, and is irrelevant to any seduction. It is held in many cases that there may be proof of "paying respectful attentions," (cases cited in 5 Denio, 368,) from which to infer a promise of marriage; then why not show the promise itself? To admit proof of the "respectful attentions," and exclude proof of a promise, is to prefer remote and equivocal testimony to the direct and certain. Again, Webster defines seduction to be "the act or crime of persuading a female to surrender her chastity," the "means leading astray," the "instrumentality to evil." Is it not, then, proper to show what was the act persuading, the means leading, the instrumentality? The act proved in this case was, simply, the promise of marriage, and not the breach of it. The defendant showed that, and the plaintiff is not responsible for that evidence.

IV. The rule is laid down in 2 Wend. 459, and sustained in banc, "that there could be no seduction without evidence of an intention to marry," and what better evidence. than proof of the promise is possible? In 8 Barb. 325, the court says "the seduction" was "got by cheat." Is it not, then, competent to show what the cheat was, so that the jury may see which party was in the wrong?

V. To review the cases; all in this State are founded on 3 Camp. 519, and 3 Wils. 18, without examination, and certainly not to the point involved here. In 1 John. 297, the evidence was offered as a ground of damages, quoting 3 Wils. (supra,) and which distinguishes that case from the present. The objection there is, that for breach of the promise the daughter has a right of action. And another

Whitney v. Elmer.

objection, by Kent, is that the daughter is an interested witness to prove that promise. Now, here, the plaintiff showed no breach of promise, and the promise was shown, not as a ground of damages, but for another purpose; and the objection that the daughter is an interested witness, is now done away with by the Code. Those two are the only objections ever taken. The first, a breach of promise, was neither shown by the plaintiff, nor offered as a ground of damages, and the second is abolished by law. The case in 2 Wend. 459, quotes 1 John. without examination. In 7 Wend. 193, the proof was offered as a ground of damages, and therefore rightfully excluded, but the court there say there are many cases where the proof was admitted and the court refused to set aside the verdict. The case in 5 Denio, 367, rightly viewed, is in our favor, and here the court refused to set aside the verdict where such evidence was given. In 7 Wend 193, the proof was offered as a ground of damages, and does not touch the present case, and there the court says that in many cases such has been given, and the courts have refused to set aside the verdicts.

VI. Now, that the daughter has a right of action for a breach of promise, has nothing to do with this case. The plaintiff here did not prove a breach of promise, and what he did show was but a part of a cause of action, for which the daughter may sue. That the daughter may use the same proof in an action by her, is not a valid objection; for when an action is brought by a master for beating his servant, per quod servituim amisit, evidence of the battery is proper, although the servant may use the same evidence. in an action brought by him to recover damages for the assault and battery. Even in 8 Barb. 323, the action was by the daughter for a breach of promise, and the court held proof of a seduction admissible. Vice versa, when the parent brings the action for the seduction, may not the promise, to say nothing of the breach of it, be given.