Evidence of pro service, resulting from the act complained of. Hence the action will fail unless some loss of service can be shown (n). And where the loss of service arose from the illness of the daughter, which was not caused by the seduction, but by grief at being subsequently abandoned, the Court doubted whether the action could be maintained (o). The logical result would be, that damages could be given on no other ground. This is not the case however. It has been laid down, that actions of this sort are brought for example's sake, and although the plaintiff's loss may not really amount to the value of twenty shillings, yet the jury do right in giving liberal damages (p). And so Lord Kenyon said, “In point of form the action only purports to give a recompense for the loss of service, but we cannot shut our eyes to the fact, that this is an action brought by the parent for an injury to her child. In such a case I am of opinion that the jury may take into consideration all that she can feel from the nature of the loss. They may look on her as losing the comfort, as well as the service of her daughter, in whose virtue she can feel no consolation; and as the parent of other children, whose morals may be corrupted by her example (g). And not only the wounded feelings of the plaintiff, but also the dishonour resulting from the act, may form part of the estimate of damages" (r). Damages ought to be governed by a due regard to the situation in life of all the parties (s). The circumstances of premeditation or fraud, by which the mise of marriage. act was accomplished, will of course weigh heavily with the jury in assessing damages. It has been said, however, that evidence cannot be received that defendant effected his object by means of a promise of marriage. Lord Ellenborough said, "You may ask her whether he paid his addresses in an [(n) In the case of a minor, a right to the service is sufficient; and when she ceases to be under the control of a real master, and intends to return to her father's house, she is constructively in his service; Terry v. Hutchinson, L. R. 3 Q. B. 599; 37 L. J. Q. B. 257.] (0) Boyle v. Brandon, 13 M. & W. 738. (p) Per Wilmot, C. J., Tullidge v. Wade, 3 Wils. 18. (9) Bedford v. M'Kowl, 3 Esp. 119. (r) Southernwood v. Ramsden, Selw. N. P. 1127, 12th ed.; Andrews v. Askey, 8 C. & P. 7. [See Berry v. Da Costa, ante, p. 376.] (s) Andrews v. Askey, ubi sup. honourable way; to admit evidence of a direct promise of marriage, would be to allow the mother to recover damages for a breach of that promise, upon the testimony of the daughter" (t). But the evidence has been received in several cases, on the ground that otherwise it might appear to the jury that the daughter was a wanton (u). In one case the distinction was said to be, that such evidence could not be relied on, as a prominent part of the case, for the purpose of obtaining specific damages, but that it might be used collaterally to the main object of the action, with a view to the vindication of the young woman's character (x). No evidence of general good character for chastity is Evidence of admissible in aggravation of damages, until an attempt has general chastity. been made to prove the contrary (y). It has even been laid down, that imputations cast upon her good fame in crossexamination are not sufficient ground to admit evidence in rebuttal (z). The contrary rule has been laid down in some later cases. In one, the cross-examination of the girl went to show that she had conducted herself immodestly towards the defendant before the seduction, and kept improper company. In the other, she was questioned as to her having had criminal intercourse with other men. The plaintiff was allowed to prove her general good character and modest deportment, and the general respectability of the family (a). Evidence may be given, in reduction of damages, of the general indelicacy and levity of character of the female seduced (b); and specific instances of intercourse between her and other men may be deposed to (c); but the daughter herself cannot be questioned as to such acts (d). Any declarations made by herself, as for instance, that a third person (t) Dodd v. Norris, 3 Camp. 519; Tullidge v. Wade, Wils. 18. (y) Bamfield v. Massey, 1 Camp. 460. (2) Dodd v. Norris, 3 Camp. 519. (a) Bate v. Hill, 1 C. & P. 100; Murgatroyd v. Murgatroyd, 2 St. Ev. 307; Brown v. Goodwin, Ir. Cir. Rep. 61. (b) Bamfield v. Massey; Dodd v. Norris, ubi sup. (c) Verry v. Watkins, 7 C. & P. 308. (d) Dodd v. Norris, ubi sup. [But, from the analogy of the decisions in affiliation cases, it would seem that such questions may be put, and even evidence be given in contradiction, if it goes to show that some one else may have been the father of the child; Garbutt v. Simpson, 32 L. J. M. C. 186; and see R. v. Gibbons, 31 L. J. M. C. 98.] Mitigation of damages, immodest conduct. Negligence of the plaintiff. Seducing from service. Adultery. was the father of the child ascribed to the defendant, may however be proved, provided she has been given an oppor tunity of explaining or denying them (e). Gross negligence on the part of the plaintiff may also be proved, with the same view. In one case, where he had suffered the defendant to continue his visits, as a suitor to his daughter, though he knew him to be a married man, on an alleged probability of his obtaining a divorce, and after he had been cautioned against him, Lord Kenyon directed a nonsuit (ƒ). Damages for the mere seducing away of an actual servant from the employment of the master, of course rests upon quite a different basis. They would be regulated by the actual money loss resulting from the act, unless where strong evidence of malice was shown. In estimating the injury sustained, the jury are not limited to the time during which the servant was bound to continue with his master. Where the workmen of a piano-maker were enticed away from him; it appeared that they were engaged for no fixed time, but worked by the piece. His income from his trade was 8001. per annum, and a verdict for 16007. was held not to be excessive (g). No action will lie against the seducer of a servant, when the master has recovered against the latter a stipulated penalty, agreed on in case of his leaving the service (h). 10. [By the act which established the present Divorce Court, 20 & 21 Vict. c. 85, actions for criminal conversation were abolished (i). It is, however, by the same act provided that a husband may in a suit for dissolution of marriage, or for judicial separation, or in a petition limited to such object only, claim damages from any person on the ground of adultery with the petitioner's wife; and the claim is to be tried on the same principles, and subject to the same rules, as actions for criminal conversation were previously tried and decided in Courts of Common Law. After the verdict the (e) Carpenter v. Wall, 11 A. & E. 803. (g) Gunter v. Astor, 4 Moo. 12. [The action lies for enticing away the [(i) S. 59.] 1 Court has power to direct in what manner the damages are to be applied, and to direct the whole or a part to be settled for the benefit of the children of the marriage, or for the maintenance of the wife (k)]. The general principles upon which damages were given Grounds of damage in in crim. con. were laid down with great clearness by an crim. con. eminent judge. He said, "The action lies in this case for the injury done to the husband in alienating his wife's affections, destroying the comfort had from her company, and raising children for him to support and provide for; and as the injury is great, so the damages given are commonly very considerable. But they are properly increased or diminished by the particular circumstances of each case. The rank and quality of the plaintiff; the condition of the de fendant; his being a friend, relation, or dependant of the plaintiff; or being a man of substance; proof of the plaintiff and his wife having lived comfortably together before her acquaintance with the defendant, and her having always borne a good character till then; and proof of a settlement or provision for the children of the marriage, are all proper circumstances of aggravation (1)." It will only be necessary to add a few words in elucidation of this summary. As almost the whole foundation of this action consisted in the loss of the wife's society and affection, it was most important with a view to damages, to ascertain what the extent of this loss was, and how far it had been caused by the acts of the defendant. tween husband and wife. Where the plaintiff had entirely given up the society of his Separation bewife, he could not sue in respect of acts of adultery subsequent to the separation (m); but it was different where, though separated, he had still retained a right to the assistance of his wife, in the management and care of his family (n). It [(k) S. 33. See Comyn v. Comyn and Humphreys, 32 L. J. P. M. & A. 210. The insertion of a claim for damages does not affect the discretion as to costs given to the Court by s. 51; West v. West and Parker, L. R. 2 P. & D. 196; 40 L. J. P. & M. 11.] (1) Bull. N. P. 27. [In Bell v. Bell and Marquis of Anglesey, 29 L. J. P. M. & A. 159, the jury were allowed to take the marriage settlement into consideration in assessing the damages, there being no children of the marriage, and the Court therefore having no power to deal with the settlements under 22 & 23 Vict. c 61, s. 5.] (m) Weedon v. Timbrell, 5 T. R. 360. Evidence of the terms upon which they lived. was bill ww, that enen a ermplete separation, if without dend valide or Tan anation since there was nothing to prenemo the plans finxirring a sait to regain the society of hawls, G worse the same rule applied more strongly where the seDANDIC WAS a mere matter of mutual convenezer & where the bushand and wife were living in diferent Amilles på Solb fats, bowever, would go strongly to reduce the damages. So it was considered in one case, where the platon had married an actress, but concealed his marriage, and vited ber very seldom, she continuing to live with her mother, and pursue her profession. Tindal, J. C., sall, - There appears in this case to have been less of that interstarse between husband and wife, to compensate for the loss of which suits of this nature are instituted, than I have ever met with There is a car as case in which the husband had never known of his wife's infidelity till the eve of her death, when she herself disclosed it to him, and he then continued to treat her kindly till she died. It was held that the action was maintainable. Celerie, J., said, in charging the jury, "The only grounds on which you ought to give damages to the plaintiff are, the shock which has been given to his feelings, and the loss of the society of his wife down to the time of her death" (r). Another mode of testing the loss sustained by the husband, was to ascertain the amount of enjoyment he used to derive from the society of his wife, and the terms upon which they lived with each other. With this view, not only their conduct when they were together, but even their letters were admissible, since the latter constituted the only mode of proof when they were separated. Letters were evidence for this purpose, even though written to a third party, and containing other matter which would not be evidence (s). But it was necessary to show that the letters were written at the time they bore date, and (0) Graham v. Wigley, per Abbott, C. J., 2 Rop. Husb. & W. 323. (p) Edwards v. Crock, 4 Esp. 39. (q) Calcraft v. Lord Harborough, 4 C. & P. 499. (r) Wilton v. Webster, 7 C. & P. 198. (a) Willis v. Bernard, 8 Bingh. 376. [As to letters between husband and wife, see Stone v. Stone and Appleton, 34 L. J. P. M & A. 33.] |