The People a. Lomax.

THE PEOPLE a. LOMAX.

Before the Recorder of the City of New York; March, 1858.

SEDUCTION UNDER PROMISE OF MARRIAGE.-DISCHARGE ON HABEAS CORPUS.

A defendant committed to answer to a prosecution for seduction should be discharged upon habeas corpus or certiorari, unless it is made to appear affirmatively on the part of the People-1. That the seduction was under promise of marriage; 2. That the female was of previously chaste character; and 3. That her testimony was corroborated, at least in some important respects, by other witnesses.

In what respects, and to what extent, such corroborative testimony is required by the statute.

Habeas corpus and certiorari to inquire into the detention of the defendant.

The facts sufficiently appear in the opinion.

BARNARD, Recorder.-The defendant was arrested under the provisions of the act entitled "An act to punish seduction as a crime," passed March 22, 1848, on the complaint of Janet Hamilton, charged with seduction under promise of marriage.

The case was originally heard before Justice Connolly, and the defendant ordered to find bail in the sum of $2000. Writs of habeas corpus and certiorari were afterwards allowed by me. In order that a more careful examination of the witnesses for the People should be had, and at the same time give a proper explanation to several matters about which the evidence was silent, I directed that the parties, with their proofs, should appear before me. On such subsequent hearing, the witnesses for the people having appeared, the following facts were established:-That the complainant was twenty and the defendant was seventeen years of age; that they first met in October, 1857, at about three o'clock in the evening, in the street, in Toronto, Canada; that the acquaintance thus formed soon ripened into intimacy, and continued up to the 28th day of November of the same year, when the parties left Canada, and came to the

The People a. Lomax.

city of New York; that the parties travelled together, without having any money, under the pretended relationship of brother and sister; that the defendant represented at different times and places, in the hearing of the complainant, that she was his sister, and that he had rescued her from a house of ill-fame; that, on arriving at the city of New York, they went to a hotel and slept together, but according to the testimony of Miss Hamilton no connection took place between them that night; that on the ensuing evening they went to a house kept by a French woman, and passed the night together, when the alleged connection took place; that the defendant promised to marry complainant, which promise to marry was corroborated by the evidence of Mr. Nash, who heard defendant say he intended to marry Miss Hamilton when he heard from his father, who lived in Manchester, England, but defendant denied, at the time of his making the promise, that he had seduced her. This constitutes in substance all of the material testimony on the part of the complainant. The object in passing this law was to protect chaste and virtuous females from being ruined by the false professions of unprincipled men. The evil had increased so rapidly, and had become so destructive to the welfare of the community, that the Legislature felt compelled to place the law on the statute book. In order, however, to entitle a claimant to the benefit and protection of it, they required that the seduction should be effected1. Under the promise of marriage; 2. That the female should be of previous chaste character; and, 3. That no conviction should take place on the testimony of the seduced, unsupported by other evidence. These three propositions were required to be proved by the complainant, and are conditions precedent. Unless, therefore, it is made to appear affirmatively on the part of the People that these three propositions are true, in my judg ment no case can be sustained. If it were otherwise, no protection could, in any case, be afforded the defendant, where the antecedents of the female could not be traced out. A crossexamination might assist in negativing her assertions, but then it would be too late for the defendant to avail himself successfully of the knowledge thus recently acquired. This law was thoroughly discussed, and a construction given to it in the case of The People v. McCerren, tried in this court some years since. The well-known character for legal ability of the counsel who

The People a. Lomax.

prosecuted and defended the case, and the arguments advanced by them, are in my judgment conclusive testimony in favor of the soundness of the position I have taken here. There it was held to be necessary in all cases, under either the abduction or seduction statute, for the People to prove as part of their case that "the female was of previous good character."

Although I might, in some cases, while acting as a committing magistrate, feel justified in holding a defendant without any other proof on this point than that of the female alleged to have been seduced, yet I could not do so under all the suspicious circumstances surrounding this case. If the acquaintance had been formed in the proper and usual way, by means of an introduction from a mutual acquaintance; if the acquaintance thus improperly formed had been carried on with the consent of her parents; if the defendant had visited the complainant in the character of suitor; or if the statement of the complainant was so truthful and straightforward as to justify me in saying there was probable cause to hold the defendant, I would willingly do so; but here, every thing goes to show that it will be impossible to obtain a conviction, even if a bill is found. As to the second point raised by the defendant's counsel, that the complainant must be corroborated on each of the three requisites of the statute, I shall hold, as it was held in the McCerren case, before referred to, that the words of the statute, "provided that no conviction shall be had under the provisions of the act on the testimony of the female seduced, unsupported by other testimony," do not mean, or render it necessary, that such female should be corroborated on every material statement, or on both the seduction and the promise to marry. If it did, the intention and operation of the law would be defeated, as the seduction can, in scarcely any case, be proved except by the testimony of the person injured; while the promise can be proved by either positive or inferential evidence, either by the defendant's own acknowledgments, or by the manner of his treatment, conduct, or expressions used.

Entertaining these views, I hereby order the discharge of the defendant, and direct that the recognizance given in this case be cancelled.

Hamilton a. Lomax.

HAMILTON a. LOMAX.

Supreme Court, First District; Special Term, March, 1858.

CAUSE OF ACTION.-SEDUCTION.

An infant is not liable in damages for a breach of his promise to marry. A person seduced cannot maintain an action for damages against her seducer. The only civil action which can be founded on a seduction, is an action by the parent or other person entitled to the services of the female to recover for loss of service.

Motion to discharge defendant from arrest.

This was a civil action brought by the complainant in the case of The People a. Lomax, supra, to recover damages from the same defendant on the same facts. The defendant was arrested at the commencement of the action, and moved, upon affidavits, to be discharged.

INGRAHAM, J.-No complaint is submitted on the motion, if any has been served, and it is difficult to say whether the arrest was originally intended to have been for a breach of promise of marriage, or for seduction. Upon the argument of the motion, the plaintiff's counsel stated it was not for the breach of promise of marriage, and sought to sustain it for the seduction.

The evidence so fully establishes the infancy of the defendant that no attempt has been made to contradict it, and this fact has probably led to the abandonment of any proceeding for the breach of such a promise. The cases of Hunt v. Peck (5 Cow., 475) and Holt v. Ward (2 Story, 937) fully establish that a promise of marriage by an infant is not binding, and an action for the breach thereof cannot be maintained. See also Cameron v. Alebay (1 Maub., 76). The ground on which the plaintiff claimed to sustain the arrest was for the seduction, alleging that the plaintiff had been defrauded by the false promise of the defendant. In no instance, however, is a promise to do something "in futuro" sufficient to sustain an action for deceit. All promises to pay money in consideration of goods to be sold, or for services to be rendered, are of the same character; and although they are not performed, still no action for fraud can be maintained

Hamilton a. Lomax.

upon them-the action must be on the promise itself. This case does not show any representation or any promise other than the promise to marry. So careful have the courts been to keep these causes of action separate, that in a case for seduction it was held to be erroneous to admit evidence of a promise of marriage in attempting to prove the seduction. (Gillett v. Mead, 5 Conn., 193.) No case has been cited to show that a person seduced could maintain an action for such seduction, because the person seduced assents thereto. The only mode in which the action has ever been maintained has been by bringing such action in the name of some person having a right to the service of the person seduced, and allowing damages to be recovered, not only for actual loss of service, but for a sum sufficient also to punish the seducer; but such action can never be maintained in the name of the party seduced.

In the present case, from the plaintiff's own statement, it appears that she is under twenty-one years, and lived with her mother. She has a right to bring an action for the loss of service of her daughter. In that action full recompense could be obtained for any injury caused by the defendant.

The statement of the plaintiff's first acquaintance with the defendant, as given by herself, is not of such a character as to relieve the case from suspicion. She states that her first acquaintance with the defendant was in the streets of Toronto after dark, and that she remained with him for three-quarters of an hour in the street; and her subsequent statements of her relations with him throw much doubt upon any supposed attempts of the defendant to deceive her. It is enough, however, to say that the law does not give the plaintiff a right of action in her own name for the seduction. It may be that there are some cases where such an action, if allowed, would give a party the redress to which she was entitled; but the Legislature has not thought fit to authorize such an action to be brought, and until they do, the courts have no authority to sanction the bringing it. As the law now permits parties to be witnesses in their own behalf, some of the difficulties which have heretofore stood in the way of allowing a female who has been seduced to maintain an action in her own name, have been obviated; but it is for the Legislature, and not the courts, to apply the remedy.

The defendant must be discharged.