Keller v. Donnelly

Le Grand, C. J., delivered the opinion of this court. This action' was instituted by the appellee-against the appellant, to recover damages for the seduction of her daughter, per quod servitium amisit. It appears from the evidence that the daughter was born on the 2nd day of August 1829.- The evidence showing an acquaintance between the defendant and the daughter is first found in a letter from him to her,- dated the 14th day of July 1847. This letter alludes to previous interviews between the parties, but does not state when they took place.

It also alludes to a conversation had in which she expressed a desire to leave her mother’s house,- and expresses a willingness, if such should be her determination, to provide for her. There is nothing, however in the letter intimating there had been any sexual intercourse between them. There was evidence from which it appeared that the daughter had left the house of her mother sometime in the month of July 1847, and gone to the house of a Mrs. McGee, where the defendant visited her. These facts are sufficient to present the question which lies at the foundation of the suit, which is, whether the mother can maintain the action for the seduction of her daughter?

In the case of Mercer vs. Walmsley, 5 Harr. & Johns., 27, the right of the father to maintain the action was fully recog ²¹⁷ msec!, whether the daughter be above twenty-one years of age or not, provided, if she be over twenty-one years of age at the time of her seduction, she be in the service of the father. During her minority the father is entitled to command her services, and the law therefore establishes between father and child constructively the relation of master and servant. This doctrine runs through nearly all the cases; but in regard to the mother there has been a great difference of opinion, some of the courts, on the fullest argument and investigation, utterly denying the right of the mother as such to sustain this action. It would be unprofitable in the view we have of the case now before us to review the various decisions on this point.

The cases will be found very fully collected and commented on in the case of Bartley vs. Richtmyer, 4 Comstock, 43. But whatever may be the true character of the guardianship which the common law casts upon the mother, one thing is certain, that during the minority of the child any one standing in loco parentis, and she being in their service, may maintain the action. 2 Carr. & Payne, 303. 2 Term Rep, 4. 11 East, 23. 3 Watts & Seargt., 416. The policy of the legislation of this Staté in regard to females is, that until they are eighteen years of age they are to be considered minors, and where the mother is left the natural guardian she is entitled to her services, unless under the law the girl be apprenticed to serve at some trade or employment until she arrive at that age. The act of 2834, eh. 228, expressly recognises the mother as the natural guardian of her children, making no distinction between males and females.

This act, when taken in connection with the other acts of Assembly fixing the period of eighteen years when a female shall be entitled to her estate, and to which she may be apprenticed, in our judgment, point to the period up to which the mother is entitled to the services of her female children, and we are clearly of the opinion, whatever may be the law elsewhere, that if the daughter be debauched before she is eighteen years of age and she be in the service of the mother,