Hamilton v. Lomax , 26 Barb. 615 ( 1858 )

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. Hpon 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 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.) ISTo 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.