Millar v. Thompson , 1 Wend. 447 ( 1828 )

By the Court,

Sutherland, J.

This action cannot be maintained. It may be conceded that the plaintiff stands in loco parentis; but a parent, under the circumstances of this case, could not sustain an action for the seduction of his daughter. The female, for whose seduction this action was brought, is the sister of the plaintiff. She was, at the time of the seduction, about 26 years of age, and bad lived with the defendant at that time, about three years, in the capacity of house keeper. In Nickleson v. Stryker, (10 Johns. R. 117,) the court say, “As the daughter, in this case, was 29 years of age, and not in the actual service of her father, when she had the connexion with the defendant, the plaintiff cannot sustain the action.” The rule is settled, that if the daughter fee of age, she must be in her father’s service, so as to constitute, in law and in fact, the relation of master and servant, in order to entitle her father to an action for seducing her. If she be under age, she is presumed to be under his control and protection, so as to entitle him to the action, whether she actually resides with him or not. The same distinction was taken in Payne v. Martin, (9 Johns. R. 387.) It has not been shaken or questioned in any subsequent case. (Moran v. Dawes, 4 Cowen, 412. Sargent v. -, 5 Cowen, 106.) It is matter of deep regret to the court, that the law affords no remedy for the injury which has been inflicted in this case. When the character of the defendant is considered, it is one of great aggravation. He was minister of the gospel. The female whom he seduced was an orphan. She was a communicant of his church, and for aught that appears, of unblemished character. She entered into his service, beyond all doubt, in the confident belief, not only that she had found a home which would be to her as the home of her father, but that her religious feelings and character would be cherished and strengthened and confirmed, by the daily example and instructions of her pastor. How have these confiding expectations been met I It is greatly to be feared that the defendant has not only triumphed over the chastity of this unfortunate girl, but that he has made a wreck of her whole moral character; for the illicit connexion between them continued for more than a year, before she became pregnant. The defendant cannot plead, in extenuation of his crime, the temporary dominion of passion. Yet, even to such a case, the law cannot bend.

New trial granted.