Caldwell County NcArchives Court.....Robert B. Sudderth, Ellen E. Hood V. 1892 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Connie Ardrey n/a December 18, 2011, 10:15 pm Source: N C Reports Written: 1892 Ellen E. Hood v. Robert B. Sudderth Seduction - Arrest and Bail - Party in Interest - Feigned Issues - Constitution - Code - Breach of Promise - Fraud - Deceit 1. An action for seduction may now be brought by the woman seduced. 2. An order for the arrest of the defendant may be granted in such action. 3. "Feigned issues" being abolished by the Constitution, the woman, when of age, and not her father, is the real party in interest. 4. When the complaint in setting forth a breach of promise to marry shows facts sufficient to make out a case of seduction, the action may be treated as one for seduction. 5. Seduction is such an injury to "Person or character" as authorizes arrest under section 291, of The Code; and involves also "fraud" and "deceit," ex vi termini. (Shepherd J., dissenting) This was a Civil Action, begun in Caldwell County, and heard by Graves, J., at Chambers, on motion to vacate order of arrest. It is allowed in the complaint that the plaintiff, being an inmate of the home of the defendant, and a dependent and employee of his mother, was seduced by the defendant under promise of marriage. It is alleged that the defendant and plaintiff, being engaged to be married to each other, the former repeatedly solicited sexual intercourse, saying that they would soon be married; that it would make no difference and would be no harm; which solicitations the plaintiff repulsed, but that after repeated solicitations her resistance was overcome, and "about the first of April, 1891, upon his urgently begging her to submit to him, saying that in a short time they would be man and wife, and they were already as good as married, she did submit to his embraces, fully trusting to his most solemn declaration that he would marry her in a month from that time, 'before anybody would ever find out anything,' as defendant solemnly promised and declared; that fully believing and trusting in the honor and faith of the defendant that he would marry her in a month, she allowed the intercourse between them to go on for three or four weeks, until it became evident to her that she was most probably with child, which fact she communicated to defendant, and begged him to save her from shame and ruin, as he had promised to do," whereupon defendant appointed the 24th day of May, 1891, for the marriage, and procured the marriage license, but subsequently left the county and refused to marry her. It is further alleged that "by reason of the belief she had in his honor and good faith, and because of his contract and agreement to marry her at an early day, she was seduced, and as a consequence of such seduction, is now pregnant, and will in due time become the mother of a child of which the defendant is the father. And that by reason of his forsaking and abandoning her, and refusing to marry her as he contracted to do, and solemnly promised to do, she has been put to great distress and suffering - suffering mental anguish and bodily pain - and bringing sorrow and distress upon herself and her family, and in consequence of which she has been greatly damaged." In the affidavit it is set forth "that the said Robert Sudderth did, under promise of marriage, seduce and lead her astray, in consequence of which she is about to become the mother of a child of which he is the father, and that he refuses to comply with his agreement and contract." The defendant moved before the Clerk to set aside the order of arrest which had been issued in this case, and that he be discharged from custody on the ground - "1. That the facts stated in the complaint filed in this cause, and in the affidavit also filed herein, do not entitle the plaintiff to have the defendant arrested, and do not justify an order for arrest of this defendant. "2. That this being an action for damages for breach of contract of marriage, the order of arrest was improvidently granted and should be vacated. "3. That this is not one of those cases where an order for the arrest of the defendant could be granted." The motion was refused by the Clerk, and defendant appealed. On hearing the appeal, his Honor, Graves, J., affirmed the ruling of the Clerk, and the defendant appealed to this Court. Edmund Jones for plaintiff S. J. Ervin for defendant NC Supreme Court Justice Clark, J. - The Code, #291(4), provides that the defendant may be arrested in a civil action when he "has been guilty of a fraud in incurring the obligation for which the action is brought," or "when the action is brought to recover damages for fraud and deceit." If the allegations are taken to be true (and they must be for the purposes of this motion), the defendant, by false and fraudulent representations as to the nature and consequences of the act he solicited, and by means of undue influence, taking advantage of the position of the plaintiff as his affianced wife, the trust and confidence thereby obtained, and her absence from her relatives and friends and natural protectors, and her isolation in his home and dependant position there, inflicted this gross wrong and outrage upon her, and thereafter abandoned her, leaving his home for a distant place and refusing to marry her. Taking the allegations to be true, it needs no argument or citation of opinions of other courts to show that the defendant has wronged the plaintiff, and that in accomplishing his purpose he has been guilty of "fraud and deceit." The word seduction ex vi termini, imports as much. It is true that the complaint may be construed as an action for breach of promise to marry, with the aggravation of seduction. But it may also with equal justice be construed as an action for damages for "fraud and deceit," or for "injury to character and person," or also for "seduction." This being so, the plaintiff was entitled to any relief justified by the complaint and proofs, whether demanded in the prayer for relief or not. If the complaint may be construed either as an action in tort or in contract, the plaintiff may elect. The facts stated in the affidavit present a case which authorized an order to issue for the arrest of defendant, and in refusing to vacate the order, the Court below committed No error NC Supreme Court Justice MacRae, J.: I concur in the conclusion arrived at, that there is No error (see court case for judge's full findings) Additional Comments: In the NC Supreme Court September Term 1892 File at: http://files.usgwarchives.net/nc/caldwell/court/robertbs2152gwl.txt This file has been created by a form at http://www.genrecords.org/ncfiles/ File size: 7.0 Kb