Rutherford County NcArchives Court.....M'Clure's, Executors V. Miller 1825
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Source: Nc Reports Vol 11, 1825
Written: 1825

December Term 1825

M'CLURE'S EXECUTORS v. MILLER. 

From Rutherford.

An action by a father for the seduction of his daughter, abates by the death 
of the father, and cannot be revived by his executors.

This was an action on the case, brought by Arthur M'Clure against the 
defendant for the seduction of his daughter.

After the cause was at issue. Arthur M'Clure died, his death was suggested on 
the record, and his executors were made parties; and at the last term, when 
the cause was reached in order, Nash, Judge, who presided, upon motion of 
defendant's counsel to dismiss, held, that by the death of Arthur M'Clure the 
suit had abated, and gave judgment accordingly; whereupon the executors 
appealed.

Carson, for appellants.—The question is, whether an action for loss of the 
services of a servant abates by the death of either party. There is no 
difference in (134) principle between this action and any other for the loss 
of service. In the case of Bennet v. Allcot (2 Term R., 168), Justice Buller 
says, that it is perfectly settled since the case of Postlethwaite v. Parks (3 
Burr., 1878), that the action will not lie by the father, unless the daughter 
be proved in some way or other his servant; slight services will do, milking 
cows, &c. In the case of Edmondson v. Machell (2 Term R., 4), the seduction 
happened while the daughter was on a visit to her mother, yet being the 
servant of her aunt, the action was brought in the aunt's name.

Paley, in his Moral Philosophy, says, the injury is threefold, to the woman, 
to her family, and to the public, but that, by the English law, no redress is 
given except to the family for loss of service.

In considering whether this is one of that class of cases which may be revived 
under the statute, the Court would not be influenced by any circumstances 
going to show it to be one of more or less aggravation, it has nothing to do 
with it. The first act which is here material, is that of 1797 (New Rev. ch., 
532). No action of detinue or trover, or action of trespass where property 
either real or personal is in contest, and such action of trespass is not 
merely vindictive, shall in any cause or court abate by the death of either 
party. This is amended by the act of 1805 (New Rev. ch., 679). Whereas doubts 
are entertained whether, by the above recited act, actions for injury done to 
real or personal property can be revived, where the property itself shall not 
be in dispute; be it enacted, that no action of trespass vi et armis, or on 
the case to recover damages done to property either real or personal, shall 
abate by the death of either plaintiff or defendant. And it would seem clear 
that withholding or destroying the services of one's servant, is an injury to 
personal property within the meaning of this act.

We have no other property in our slaves, but their services; and an action for 
the loss of those services, has been held to be within the words of the act in 
the case of (135) McAllister's administrator v. Spider's executor. (Conf. R., 
91.) 

If it should be said, that this is an action given to the parent to repair his 
wounded sensibility, and that the legislature meant to exclude it when they 
named trover, detinue, &c.; it may be answered, that this would be giving to 
the act, which requires a liberal construction, a very limited one. The words 
in the body of the act embrace this case unequivocally, and go farther than 
the preamble; all injuries done to property either real or personal. The 
services of a servant are doubtless property personal, and their loss is an 
injury; the words real and personal, as here applied to property, are used in 
their strict legal sense, and intended to embrace every species of property, 
to the enjoyment of which one may be entitled, and in being deprived of which 
he may be injured. The preamble of the act cannot, on any admitted rule of 
construction, control the plain declarations of the enactment clause. If the 
words real and personal, be omitted, the act would read thus, all injuries to 
property, &c., and then there could be no doubt, because services are property.

The failure of actions by the death of parties was viewed as a mischief, and 
the legislature has manifested its solicitude to cure the evil; the 
construction ought, therefore, to aid, and not thwart their views.

The stat. 4, Ed. 3, made for a like purpose with our own, has always been 
liberally construed. Wheatly v. Lane (1 Saund., 216, note).

As to the construction to be put on our statutes, see farther, Brown v. Blick 
(7 N. C., 511).

Wilson, contra, insisted that this was such an action as the legislature meant 
to include under the phrase vindictive, and consequently could not be revived.

Taylor, Chief Justice.—This case depends upon the construction of the act of 
1805, ch., 679; the words (136) of which, so far as they relate to this case, 
are, "that no action on the case for damage done to personal property, shall 
abate by the death of either plaintiff or defendant."

This is an action on the case, brought bv a father for the seduction of his 
daughter, and the question is, has it abated by his death? Considering the 
nature of the action, and the extent of injury and suffering which usually 
follow the crime of seduction, I should be gratified to discover a 
satisfactory ground for the opinion that the action might be revived. I think 
tho plaintiff's counsel has presented the case in the strongest point of view 
it admits of; yet after all it must be admitted, that the action is but in 
form and sound for an injury done to property, but is in substance for a wrong 
done to tho person of the child, and to obtain satisfaction for the wounded 
feelings of the parent. The loss of service is in most cases imaginary; for 
though some evidence must be given of acts of service to satisfy the form, yet 
in the estimate of damages the jury usually look beyond this to the injury 
done the child. The probata are much more extensive than the allegata, and 
damages may be given as a compensation for the loss which the father has 
sustained, in being deprived of the society and comfort of his child, and for 
the dishonor which he receives. Hence evidence is admissible, as to the 
circumstances of the father's family, their general good conduct, and the 
number of his children. Actions of this sort are brought for example sake; and 
although the plaintiff's loss may not amount to twenty shillings, the jury do 
right in giving liberal damages. (3 Wills., 19.)

It is said, in the case of Bedford v. M'Kowl, that, "in point of form, the 
action only purports to give a recompence for loss of service; but we cannot 
shut our eyes to the fact, that this is an action brought by a parent for an 
injury to his child; in such a case I am of opinion, the jury may take into 
their consideration all that he can feel from the nature of the loss. They may 
look upon (137) him as a parent losing the comfort as well as service of his 
daughter, in whose virtue he can feel no consolation, and as the parent of 
other children whose morals may be corrupted by her example." (3 Esp. R., 119.)

As the child herself has no remedy, and the offence is only indictable under 
peculiar circumstances, it would pass with impunity, were not these forced 
circumstances employed to give the Courts cognizance. It is characterized by a 
sensible writer as one of the quaintest fictions in the world, that 
satisfaction can only become at by the father's bringing the action against 
the seducer, for the loss of his daughter's service, during her pregnancy and 
nurturing. (Paley, Mor. Phii., 200.)

From these considerations, it appears to me that this action must be 
considered as a tort done to the person, unaccompanied by any injury to 
personal property, and it is accordingly so classed by writers on pleadings (2 
Chitty, 268), it is therefore abated by the plaintiff's death.

Hall, Judge.—The sole question here is, whether this action survives to the 
plaintiffs, or abates by the death of their intestate. There is no doubt but 
it abated at common law. By the act of 1799, New Rev. ch., 532, it is declared 
that no action of detinue, or trover, or action of trespass, where property 
either real or personal is in contest, and such action of trespass is not 
merely vindictive, shall abate, &c., by the death of either party, but the 
same may be revived, &c. The present action is one in form brought to recover 
damages for the loss of the services of the daughter; but it is in substance 
brought to recover damages for the disgrace and degradation of which the 
defendant is the author. In this view of it, which I think we must unavoidably 
take, it does not involve in it a contest respecting either real or personal 
property; and I think, too that the damages are, legally speaking, vindictive, 
for they cannot be measured by any injury which property may have sustained, 
but are dependent altogether, under (138) the circumstances of the case, upon 
a sound discretion, intended to make reparation to the injured party as far as 
human tribunals can do it, for complete reparation in such cases is beyond 
their reach.

The next and only other act on the subject was passed in the year 1805, New 
Rev. ch., 679. It declares that no action of trespass vi et armis, or trespass 
on the case, &c., brought to recover damages done to property, either real or 
personal, shall abate by the death of either plaintiff or defendant, &c., but 
the same may be revived. If we consider this action in substance as brought to 
recover vindictive damages, as mentioned in the act of 1799, it is not made to 
survive by this latter act, for it is not brought for an injury done to either 
real or personal property. I, therefore, think it will not survive, but abates 
by the death of the plaintiff. The judgment of the Superior Court must be 
affirmed.

Judge Henderson assented,

Judgment affirmed.

There is one part of the foregoing case on which no question was made, but 
which does not seem entirely free from doubt. The action brought was case, 
notwithstanding some of the most respectable authorities hold trespass to be 
the proper form of action. In the case of Woodward v. Walton (2 New Rep. 476), 
the action was trespass, and upon full argument, and after an advisari, it was 
held to be proper. Sir James Mansfield remarks, in delivering the opinion of 
the Court, "in actions like the present, as far as my recollection goes, the 
form of the declaration has always been in trespass vi et armis and contra 
pacem. I cannot distinguish between this action and an action for criminal 
conversation. If that be the subject of trespass, this must, be so too." It is 
true, that Mr. Justice Buller, in Bennett v. Allcot (2 Term Rep. 166), said, 
that "an action merely for debauching a man's daughter, by which he loses her 
service, is an action on the case." This case is commented on by Sir 
Mansfield, in Woodward v. Walton; and it is there said, that the opinion 
thrown out by Justice Buller was founded on a mistake respecting two other 
cases, one in Burrow and the other in Lord Raymond. The case in Burrow was 
Postlethwait v. Parks (3 Burr, 1878), and was trespass; and the case of Russel 
v. Corne (2 Ld. Raym. 1031), is certainly rather in favor of trespass than 
against it. The case of Tullidge v. Wade (3 Wills, 13), was trespass. However, 
in the case of Macfadzen v. Olivant (6 East 387), Lord Ellenborough seemed to 
consider case as the proper remedy for seducing (139) plaintiff's wife, on the 
authority of Cook v. Sayer (2 Burr, 753), but the case of Cook v. Sayer is 
stated by Burrow to have been trespass; and in Batchelor v. Biggs (2 Bl. Rep. 
854), it is said to have been trespass. In a late case before the Court of 
King's Bench for seducing a daughter, Speight V. Oliviera (2 Starkie 493), 
decided in 1819, it was objected that the action should be trespass and not 
case, to which Abbot, C. J. replied, that he would not nonsuit upon that 
objection.

Amid these contradictory decisions, adverting to principle, it would seem that 
case, and not trespass, is the proper remedy. The injury which the law 
contemplates as entitled to redress, is consequential, for it is believed no 
case can be found of an action brought for debauching plaintiff's daughter 
without laying a per quod, and some proof of service is always required, 
though the Courts will gladly take notice of the slightest. Simply to debauch 
plaintiff's daughter, without her becoming thereby pregnant, is to the 
feelings of the parent, a wound little, if any, less severe than that 
inflicted by her becoming the mother of an illegitimate child; but as this 
action in its forms has been well characterized as a quaint fiction to recover 
compensation for wounded sensibility, the fiction must be so preserved 
throughout that the law may preserve its principles unimpaired; and as the 
consequential injury in the loss of service has been resorted to, to furnish 
any ground for an action that consequential injury, like every other, can only 
be redressed by an action on the case.

It is true that Sir J. Mansfield has said, "I cannot distinguish between this 
action, and an action for criminal conversation;" but (with deference be it 
spoken) it would seem that however slight the difference may be as to the 
feelings of those who are injured, in the view of the jurist, the injuries 
belong to distinct classes. Lord Ellenborough, in the case of Macfadzen v. 
Olivant (6 East, 388), thus speaks of actions for crim. con.: "the cause of 
action in these cases, arises from the time of the injury done by the 
defendant, by the corruption of the body and mind of the wife; for from that 
time she is less qualified to perform the duties of the marriage state." The 
injury which the law redresses would seem then, in these cases, to be 
immediate on the commission of the guilty act; and of course trespass is 
proper. A single act of adultery, though never manifested in its consequences, 
is an invasion of the husband's rights, and the law redresses it; but in 
actions for the seduction of a daughter, the 'quaint fiction' of a loss of 
service seems, ab initio, to have been resorted to as the consequential injury 
which the law will compensate, without any reference to "the corruption of 
body and mind," which is the immediate injury complained of in an action for 
crim. con.

It is very correctly remarked by the plaintiff's counsel, in the argument, of 
the foregoing case, that there is no difference in principle (140) between 
this action, and any other for the loss of service; they must all stand on the 
same ground. Suppose the case of an apprentice seduced from the service of his 
master by persuasion; can a case be found in which, under such circumstances, 
trespass will lie? No force, direct or immediate, is employed; the mere act of 
conversing with the apprentice is not of itself the foundation of an action, 
for should the servant not be prevailed on to leave his master, no injury 
results and no action lies; but if, being a free agent, he departs, it is his 
voluntary act, and his master cannot truly allege that his servant, by any 
force (in legal signification), has been taken away. His departure, and the 
master's loss of service, is the consequence of an act which in itself would 
not have supported an action, and the master's remedy is case. So in the case 
of the loss of service by seducing the daughter, her consent must have been 
given, and it was her voluntary act, and her father, in the forms of his suit, 
loses the character of a parent and appears only as a master, complaining of 
an injury resulting as a consequence from this act of her's which must have 
been voluntarily done, though at the solicitation of another.

If to this it be objected that in a case of crim. con. the wife, who is a 
servant, consents, and yet her husband may have trespass; it may be answered 
that the case is one sui generis; the husband has, so to speak, a property in 
the body, a right to the personal enjoyment of his wife; for an invasion of 
this right, the law permits him to sue as husband; he makes no complaint as 
master. Far different is the case of seduction of a daughter; her father has 
no such rights over her person as he has over the person of his wife; he makes 
no complaint, but in the character of matter, and the injury sustained by 
debauching his wife, is such as never could be effected by the seduction of 
his daughter.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

December Term, 1825

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