
    
      Elizabeth Villepigue v. David Shular.
    
    An action on the case per quod servitimi rnnisit, will lie against a seducer in favor of a widowed mother, living with her daughter who is over twenty one years of age, and is owner of the establishment, but renders service to the mother and family.
    
      Before O’Neall, J. at Kershaw, Spring Term, 1849.
    This was an action on the case for seducing and getting with child the plaintiff’s daughter, Charlotte E. Yillepigue.
    The case, made by the proof of the daughter, who was' the only witness, was in substance as follows: At the birth of the child, 12th June, 1848, she was in her 23d year. She owned the house and lot in and on which her mother, herself and family lived; all the property was her’s. She said, previous to and at the begetting of the child, she had been working for her mother and the family, and this she continued to do as long as she was able. The family, she said, consisted of her mother, herself, a brother who fell in Mexico, a younger brother now fifteen years of age, and a sister now twelve years of age. She said she had been sick for more than a year before the trial, and had suffered great mental anxiety. She said she had known the defendant for more than three years. He is a widower and member of the Baptist Church, and had sustained a good character. He visti- { ted her as a professed admirer, and solicited her hand in marriage, and was accepted. This engagement, the young lady said, she broke off in consequence of something which, she understood Mrs. Cuttino, the mother-in-law of Shular, said about her. He again proposed to marry her, and then succeeded in seducing her. He never, she said, renewed the proposition of marriage after her seduction ! She admitted, that she had said Shular was a gentleman up to a period within two months of the birth of her child, though, she said, she then knew better in her heart. On the 12th of June, 1848, she was delivered of a male child, of which she said the defendant was the father. The child, in consequence of notice from the defendant, was brought into Court and exhibited to the jury.
    2 T. R. 166.
    At the close of the plaintiff’s case, the defendant moved for a non-suit, on the ground that the young lady was more that 21 years of age, at the conception of the child, and did not live with the mother, but that the mother lived with her.
    Upon the authority of Bennett v. Allcott, referred to in 2 Esp. Dig. 279, the Circuit Judge refused the motion, and held that no contract of hiring need be proved, if she in any way appeared to have acted as a servant.
    That in this case, though the house and property were the daughter’s, yet the mother, living with her, was the proper head of the family, and the proof was abundant, that she ' “acted as” her “servant,” in working for her and the other members of the family.
    The case was submitted to the jury, who found a verdict for the plaintiff for $750.
    The defendant appealed, and renewed his motion for a non-suit, upon the ground that this action could not be maintained, because Charlotte Yillepigue, the daughter of the plaintiff, whom it was alledged the defendant seduced, was over 21 years of age, and resided in her own house, and was the owner of every thing about the premises at the time when she was seduced.
    And for a new trial, on the same ground, and because the verdict was against the law and evidence of the case.
    ARGUMENT.
    
      Smart, for the motion,
    said case could not be sustained where the daughter lived alone, or was twenty one years of age ; cited Mercer v. Wamsley, 5 Harris and Johnson, 27 ; Nickleson v. Stryker, 10 Johns. 115; Tullege v. Page, 3 Wilson, 18; 3 Stephens N. P. 2350, and cases there cited; 3 U. S. Dig. 403; Carr v. Clark, 18 E. C. L. Rep. 328; Dean v. Peel, 5 East, 47.
    
      2Brev.R.275. w'fc/Jy ' t ■’ ' '
    
      ¿ i erm, roo.
    ll East, 24.
    
      Kershaw, contra,
    said case was the most usual form of action, no matter how the parties live ; cited Bennett v. All-cott, 3 T. R. 166. That if the daughter is over twenty one years 0f ag6j proof of service de facto was sufficient; Horn-ketrh v. Barr, 8 Sergt. and Rawl. 36. And if under twenty one years, no service need be proved, whether she live with the father or not. Vanhorne v. Freeman, 1 Halsted, 322; Briggs v. Iredell, 16; Harper v. Huff kin, 7 Barn, and Cress. 58; Ford v. Wilson, 5 Esp. 55; 5 East, 45; 11 East, 24; Kirkpatrick v. Lockhart, 2 Brev. 276.
   Wardlaw, J.

delivered the opinion of the Court.

The questions of fact have been settled by the verdict, and upon them the appellant’s counsel has not here insisted.

All the evidence in the case came from the injured daughter of the plaintiff; if it has not shewn enough to sustain the action, a non-suit should be ordered.

Judge Brevard, in Kirkpatrick v. Lockhart, contrary to Satterthevaite v. Duersb, intimates his opinion, that in either trespass or case, brought by a parent for the seduction of a daughter, there need be no allagation of special damage. Without deciding that point, we see that here a per quod servitium amisit has been laid, and that the allegation, even if it is unnecessary, having been made must be sustained by some proof. Proof that the daughter was under 21 years of age, in absence of evidence that the paternal control had in some legal way ceased, would raise a presumption that she was the servant of the father, sufficient to sustain the action by him. When the daughter is above 21, some slight evidence of actual service rendered by her must be given : but very gpght evidence will suffice, for the loss of service is well understood to be little more than a legal fiction, which has been introduced to secure compensation for outraged feelings. The same right of action which ordinarily a father has, devolves upon any one standing loco parentis.

Here the daughter lived with her widowed mother, who was the natural head of the family, and rendered valuable service to the mother and family. That the daughter was owner of the establishment may serve to shew her merit and her mother’s destitution, but did not render the injury which has been done more tolerable to the mother, ana could defeat the action only upon principles which would apply to every case where ample means of living raised the daughter above the necessity of rendering menial services to the parent. The house which has been made wretched, was the home of the mother; that the opportunity of there enjoying the daughter’s society, and the means of living, have come to the mother from the filial piety and industrious exertion of the daughter, seems to shew that there is more than fiction or formal averment in the allegation of services lost.

The proof of injury in such cases, it is Said, usually depends upon the testimony of the person most injured, and,, therefore, the action should be kept within close bounds.— This observation applies as well where the daughter is under twenty one, as where she is over. In all cases the jury must judge of the credit due to the witness, and of all the circumstances of aggravation or mitigation.

It has, sometimes, been thought extraordinary that any action should lie to a person on account of incontinence between two others, both of whom may be of full age : but if vicious inclinations of a daughter have brought disgrace upon herself and her family, a parent ought not to recover the damages which would be awarded in a case of seduction. The dreadful sufferings which a daughter’s seduction must bring upon a parent, can have no adequate punishment by law, without this action of the parent, and, therefore, the action, in a proper case, should be made effective.

The motion is dismissed.

The whole Court concurred.

Motion refused.  