
    CONSTITUTIONAL COURT, COLUMBIA,
    NOV., 1806.
    Rebecca Frost v. George Marshall.
    A nonsuit may be directed, although evidence be given to prove the issue, if it clearly appear that there is no cause of action appearing on the record; and although advantage might be taken of that circumstance in arrest of judgment.
    Special action on the case, Plaintiff set forth in her declaration that the defendant, pretending to address her, in order to prevail on her to become bis wife, seduced her affections, debauched her, and got her with child; and afterwards deserted her and married an. other woman. Plea not guilty.
    The plaintiff proved at the trial, before Brevard, J., in New-berry District Court, that the defendant app'ied to the brother and sister, and brother-in-law of the plaintiff, (her parents being dead,) for their permission to pay his addresses to the plaintiff, professing a great regard for her, and a desire to marry her; and obtained their approbation ; under the cover of which he visited the plaintiff, and persuaded her that his intentions were honorable and sincere; and by false pretences and seductive practices, seduced and debauched her, (as the witnesses, from circumstances, declared they believed.) That the defendant afterwards married another woman; five months after which the plaintiff had a bastard child, (which the witnesses declared they believed was begotten by the defendant.) It was also proved that the plaintiff was regarded as a virtuous and modest girl prior to her acquaintance with the defendant. But it appeared from the cross examination of the plaintiff’s witnesses, that she was ac. customed to permit the defendant to take liberties with her, which modesty ought to have forbidden ; and that when he was married, she was invited and was present at the nuptial ceremony, and ap. patently cheerful and contented. , When the evidence for the plain, tiff was closed, the judge who presided, stated to the plaintiff’s counsel, that in his opinion, the cause stated and proved would not support an action, and advised the plaintiff to suffer a nonsuit, and move in the Constitutional Court, if she should think proper to do so, for a new trial. The proposal was agreed to, and now the plain, tiff’s counsel moved for a new trial, before all the judges, except Bay, J., absent.
    Brevard, J., reported the case, and stated the following grounds upon which he had founded his opinion that the action could not be sup. ported: 1. Although an action will lie on mutual promises of marriage, yet, the evidence given in this case, from which the jury might have inferred mutual promises, could not apply to the action as brought, which is ail action of trespass on the case, founded, not on contract, but on wrong, and wherein the plaintiff claims consequential damages. 2. Although an action of trespass, or trespass on the case, lies on behalf of a father for debauching his daughter, laying the damages to be consequential for the loss of her service, yet no such action is maintainable by the daughter herself, for suffering herself to be debauched, and for the consequential inconvenince and injury resulting therefrom, by seducing her affections, disappointing her hopes, and getting her with child. Therefore, inasmuch as the declaration in this case might have been demurred to, and the verdict (in case the plaintiff should obtain oue in her favor) might have been avoye(j a motion in arrest of judgment, the presiding judge said he would order a nonsuit, and prevent the unnecessary trouble and delay of hearing further evidence, and the consumption oí time which would be occasioned by many long arguments to the jury i not on the ground that there was no evidence to support the case as laid in the declaration, but on the ground that the case, as laid and proved, did not intitle the plaintiff to recover, and were insufficient to intitle her to a judgment, in case the jury should give a verdict in her favor.
    
      Note. Trespass vi et armis for an assault upon the plaintiff’s daughter, and getting her with child, per quod servitium amisit. Plaintiff being twenty three years of age, hired herself to one Saul, &e.; after being with child, Saul turned her away, and she returned to her father, who brought the action. The action not maintainable. 3 Burr. 1878. Because she was above twenty-one, and was In service of another merely. An action will not lie by the father for debauching Ins daughter. 2 Ld. Raym. 1032. If the father maintains her in his own house hs is intitled to her service, and may maintain an action for the loss of her service. See 1 Bnlstr. 373. 2 Lufw. 1497. Cro. Eliz. 769. Sir T. Raym. 259. 6 Mod. 127. 1 Sid. 225. ' '
    
      The judge, further in stating his opinion on that occasion observed, that on general principles of law and good policy, no damages ought to be allowed to be recovered for such a cause as the plaintiff has declared for in this case ; that it would be allowing her to take advantage of her own frailly and turpitude ; and might have a tendency to encourage lewdness; as the law might be made in some measure subservient to the designs of artful women of loose morals, who may be inclined to sacrifice their virtue on slight solicitations, listening rather to the suggestions of their own libidinous passions, than trusting to the promises of a favored lover. That it would be directly contrary also to a settled maxim of law, which declares that where both parties are equally in fault, the condition of the defendant shall be preferred. In pari delicto potior est conditio defendentis. (Volenti non fit injuria.)
    
    28th November, 1806. The motion argued before all the judges, except Bat, J., absent, by Ckeswell, for the motion, and Faeeow. They cited 3 Bl. Com. 1 Bac. Abr. 44. The court adjourned the case for consideration.
   Columbia, April, 1807. All the judges present.

Wilds, J.,

delivered the resolution of the whole court, approving the determination of the District Court, and recognizing the same reasons and arguments used by the District Court, as above stated.

Motion discharged.

In trespass vi et armis against defendant, that he assaulted A. B., daughter and servant of the plaintiff, &c., whereby plaintiff lost the benefit of her service, &c. in giving damages, the jury are not to consider the injury done to_ A. B. as to promising her marriage. The daughter being called as a witness, swore that defendant promissed her marriage, and got her 'with child. That she lived with her father as a servant; and that she was thirty years of age. Plaintiff recovered. 3 VVils. 18. Tullidge v. Wade.

In an action by a father for deflowering his daughter, the daughter may be a witness. 2 Str. 1044. So in the case of any other servant, where trespass is brought for beating him per quod servitium amisit. 1 Str. 595. Sed vid. 1 Str. 414, contra. See 2 Str. 944. Apprentice a witness.

Trespass for breaking and entering plaintiff’s house, debauching his daughter and getting her with child per quod servitium amisit. It appeared the daughter was thirty years of age, and occasionally did acts of service. It was objected, that as no contract, for service was proved, the action could not be maintained, she being above the age ol twenty-one. But overruled; instances of actual service being proved; a servant de facto. Bennett v. AUcott, 2 D. and E. 166. Per Buller. An action merely for debauching a man’s daughter, by which he loses her service, is an action ott the case. But where the offence is accompanied with an illegal entry of the father’s house, he has his election to bring trespass for breaking and entering, and lay the debauching of the daughter and loss of her service as consequent-al; or he may bring the action on the case merely for debauching his daughter per quod servitium amisit. See 2 Ld. Raym. 1032.

In the case of Foster v. Scoffield, Johnson’s Rep. New-York, p. 297, which was an action for assaulting, beating, sedu'eing, debauching, and getting with child the plaintiff’s daughter, per quod servitium amisit; it was adjudged that the daughter could not be a witness to prove a previous promise of marriage in aggravation of damages, for she had her own right of action for the broach of promise. 3 Wils. 18.

In Bedford v. M’Kowl, 3 Esp Rep. 119, Lord Eldon said, In point of form it only purports to give a recompense for loss of service; but we cannot shut our eyes to the fact, that the action is by a parent for an injury to her child.”

See 5 Binney’s Reports 320, observations of Breckenridge, J., in Morgan v. Stall

fhe present Chief Justice of the King’s Bench in England, says that “when it is clear the action will not lie, the judges are in the habit of directing a non-suit. even although the objection appears on record, and might be taken advantage of on a motion in arrest of judgment.”  