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from an unlawful detention 108 where the original arrest was legal.100
"Seduction" in its broadest sense means the inducement or incitement to wrongdoing of any kind; in its more specific significance it is the wrong of inducing a woman to consent to unlawful sexual intercourse, by the use of some influence, promise, art, or enticement which overcomes her scruples or reluctance.111
"There is a great conflict of authority upon the question of the common law form of action to be brought for seduction. In a number of decisions, case has been approved,112 in others trespass has been held an appropriate remedy; 11 and according to some decisions, trespass is the only proper remedy.' At least one decision takes the view that case, and not trespass, is the remedy if the offense takes place in the house of another person.115 A few authorities approve either trespass or case, holding that trespass lies for the
108 Dress vs. Mallon, 46 Neb., 121; Anderson vs. Beck, 64 Miss., 113; Tanenner vs. Morehead, 41 W. Va., 116.
109 For a more complete account of what constitutes an unlawful arrest see Subject of Criminal Law and Criminal Procedure in Volume X.
110 Webster's International Dictionary.
11 American & English Ency, of Law Vol. XXV, p. 190; Marshall vs. Taylor, 98 Cal., 55; 35 Am. St. Rep., 144; Robinson vs. Powers, 129 Ind., 480. Clough vs. Tenney, 5 Me., 446; Briggs vs. Evans, 5 Ired. L. (N. C.), 16; Fairmount, etc., Pass. R. Co. vs. Stutler, 54 Pa. St., 375,
113 Haynes vs. Sinclair, 23 Vt., 108;
115 Clough vs. Tenney, 5 Me., 446.
direct injury per quod servitium amisit, or case for the consequential damages."
?? 116 117
Historically, it is perhaps more strictly accurate to consider this action as a species of trespass on the 118 but the subject is more conveniently treated under the head of trespass. Where the action is considered one of trespass, this view is generally sustained by the trespass involved in the entry into the plaintiff's home for the illegal purpose. "Trespass may be maintained where the defendant illegally enters the father's house, and debauching his daughter may be stated and proved as an aggravation of the trespass, although it may not have been followed by the consequences of pregnancy. Where the action is trespass, whether it be followed by pregnancy or not, the illegal entry is considered the gist of the action, and the loss of service, etc., merely as consequential." 119
The action of seduction can never be brought by the woman herself, as she has consented to the act.120 The general rule of the common law is, that the father of the woman seduced is the person who is entitled to bring an action of this character.121 This right continues even after the woman is of age, if she continues
118 Woodward vs. Walton, 2 B. &
117 Encyclopaedia of Pleading and
given by the law to redress the
action was early accepted
130 There are one or two very recent
603; Thompson vs. Young, 51
to live with her father.122 It has even been held in an extreme case, that this right in the father would exist where the daughter was married and living away from her father;' 123 this case, however, probably carries the doctrine too far. The after-marriage of the daughter to a third person will not take away the father's right of action,124
A mother can never sue for the seduction of a daughter during the lifetime of the father; 125 but after the death of the father, the action may be brought by the mother.120 The action may also be brought under proper circumstances, by persons standing in loco parentis; thus the action has been maintained by the woman's guardian; brother, 12 128 brother-in-law, 120 grandfather,130 uncle, 131, aunt,132 cousin,133 step-father,134 or father by adoption.135 A master can also recover for the seduction of his servant upon proof of actual damages. 138
The right of the parents in such action, is, in fact, based, not upon the relationship in itself, but upon the loss of services.137 Some loss of services must always be proved, but such loss may be very slight or even
12a Garreston vs. Becker, 52 Ill. App. 255; Davidson vs. Abbott, 52 Vt., 570.
123 Harper vs. Luffkin, 7 B. & C.,
124 Evans vs. Watt, 2 Ont., 166.
120 Heaps vs. Dunham, 95 Ill., 583;
128 Paterson vs. Wilcox, 20 W. C.
129 Ball vs. Bruce, 21 Ill., 161.
nominal. After some loss of services have been proved, damages may be given for the disgrace, etc.188 Mere illegal sexual intercourse with a woman is not a sufficient basis for this action. It is said that there must be the use of arts, enticement, etc.139 Exactly what will constitute such arts and enticements, is difficult to ascertain with exactness. Mere praise or flattery is certainly not sufficient, and there must be something more than a mere reluctance on the part of the woman to commit the act.140 Threats of abandonment are not sufficient,141 nor is there any seduction. where the woman is influenced by sexual desire or curiosity.142 On the other hand, threats to discharge the plaintiff from her position has been held sufficient.143 A false promise of marriage will sustain this action," and generally deceit of any character. Proof of former unchastity may be considered to show that the sexual intercourse was without enticement, artifice, persuasion, or solicitation.145
TRESPASS TO REAL PROPERTY.
SECTION 27. TRESPASS QUARE CLAUSUM FREGIT.
The law for the protection of real property against trespass is even stricter than that for the protection of the person. The reason for this rule, is probably, not, that the law puts a higher value on land than upon persons, but because of the greater need for the protection of the former; it is generally easier for a man to protect his own body than his land. Any person who as much as sets foot on the land of another without either the express or implied consent of the owner, or the authorization of the law, is a trespasser.1 Trespass on real property was redressed by the old form of the action of trespass known as trespass quare clausum fregit.
SECTION 28. ILLUSTRATIONS OF TRESPASS AGAINST REALTY.
The rule against trespassing upon another's land has been carried to such an extreme, that it has been held that if a person, who is mowing his own field, allows his blade to cut through into another field, he is liable in an action of trespass.
The extent of this principle is well illustrated by the decision in one of the early leading cases on this point, known as the Case of the Tithes. In this case
"No man can set his foot upon my ground without my license but he is liable to an action." Entick vs. Carington, 19 How. St. Tr., 102.
'See subject of Common Law
Pleading, Volume XI, Subject 34.
Hicks vs. Paling, Mo. K. B., 297. 1 Y. B., 21 Henry VII, 27 pl. 5. (1507).