Hubbele v. Wheeler , 2 Aik. 359 ( 1827 )

And now, at this term, the following opinion of the Court was delivered by

Prentiss, J.

Notwithstanding the opinion expressed by Bul-ler, J. in Bennett vs. Alcol, 2 T. Rep. 167, that case is the appropriate action for the- injury of seduction, it is well settled, and we think correctly, too, that trespass is the proper remedy. “If the injury of seduction,” said that learned judge, “is accompanied with an illegal entry of the house of the parent, he has his election, either to bring trespass for the breaking and entering, and lay the debauching of the daughter, and loss of her service, as consequential damages, or he,may bring an action on the case for debauching the daughter, per quod servitium amisit.” But, in Woodward vs; Walton, 5 Bos. & Pul. 476, it was solemnly decided, on a review of all the cases, both ancient and modern, that the action is an action of trespass, and not tresPass 011 the case ; and it was held, on a motion in arrest of judgment, that a count for breaking and entering the plaintiff’s dwelling-house, and debauching his daughter, whereby he lost her service, may be joined with a count, omitting the trespass to the dwelling-house, and merely stating, that the defendánt, with force and arms, debauched the plaintiff’s daughter, per quod senitium amisit. Considering the injury of seduction, then, as of itself a substantive ground for an action of trespass, the question in the case before Us, is, whether the plaintiff, the declaration being for breaking and entering his house, and debauching his daughter, by which he lost her service, can recov-er a satisfaction for the latter injury, the defendant having pleaded the general issue, and, under notice given of a justification of the breaking and entering, proved a licence from the plaintiff.

It appears, from the authorities, that on a declaration in this form, the breaking and entering of the house is to be regarded as the gist of the action, and the seduction of the daughter as matter of aggravation only; and as it is a rule in pleading, that where any thing is inserted in the declaration as matter of aggravation, the plea need not answer or justify it; a plea justifying the breaking and entering would be a sufficient answer to the whole declaration. (Dye vs. Leatherdale, 3 Wilson, 20.—-1 Saund. 28, n. 3.) The case of Taylor vs. Cole, 3 T. Rep. 297, is an authority to this effect, and a full and clear illustration of the rule. That was an action of trespass for breaking and entering the plaintiff’s house, and expelling him therefrom. The defendant, who was sheriff, justified the breaking and entering-under a writ; and it was held, that the breaking and entering was the gist of the action, that the expulsion was matter of aggravation only, and that the plea, having answered the gist of the action, covered the whole declaration. But, although the breaking and entering of the house is the gist of the action, and a plea justifying that alone will be a sufficient answer to the declaration, yet it was admitted in Taylor vs. Cole, that the plaintiff, in such case, might take advantage ©f the expulsion, by a replication in the nature of a new assignment, and in that way, by making the defendant a trespasser ab initio, recover both for the breaking and entering and the expulsion. That Was the case of an abuse of an authority given by law ; and as it is a clear principle, that where a man abuses an authority or licence which the law gives him, he becomes a trespasser ab initio, the plaintiff may, if the defendant pleads such licence or authority, reply the abuse, and thus make him a trespasser ab initio. Yet, in such case, in order‘to recover a compensation for the act of abuse, as well as for the previous trespass, it seems that a mere replication of the abuse would not alone be sufficient. As a replication only states matter which entitles the plaintiff to his action for the same trespass mentioned in, and attempted to be justified by the plea, its only effect is to invalidate the plea, and' make the defendant a trespasser ab ini-tio. If the plaintiff, therefore, relies upon the abuse as a distinct injury, and would recover a satisfaction for it as such, in addition to the trespass pleaded to, he must not only reply the abuse, but also new assign it. (Hammond's K. P. 127.)

Bat a distinction is taken, between an authority or licence given by the law, and an authority or licence given by the party. Where the authority or licence to enter is given by the party, as in the case before us, although the person to whom the authority is given, may, by the commission of subsequent acts, be a trespasser, yet such subsequent acts will not affect the original entry, so as to make that which was sanctioned by the authority of the party complaining, a trespass. (The Six Carpenters' case, 8 Co. 146.) In such case, although the matter in aggravation or excess cannot be replied, so as to make the defendant a trespasser ab initio, yet it may be new assigned, and relied upon as a distinct substantive trespass. Thus, in an action for breaking and entering the plaintiff’s house or land, felling his trees, or taking away his goods, if the defendant pleads a licence, which was confined to some particular act, and the defendant exceeded it, the plaintiff must state the excess in a new assignment. (1 Saund. 300, n. 6.—1 Chit. Pl. 606.) In Dicham vs. Bond, 3 Campb. Cas. 524, which was an action of trespass for breaking and entering the plaintiff’s dwelling-house, making a great noise and disturbance therein, and assaulting and beating him and his servant, the defendant pleaded to the breaking and entering of the house, a licence, to which the plaintiff replied de injuria generally. On the trial, it was insisted, for the defendant, that he was entitled to a verdict on the plea of licence ; for although he had been guilty of some excess, that could not be taken advantage of, for want of a new assignment. On the other side, it was contended, that, admitting the licence, the defendant, by his subsequent conduct, had made himseif a trespasser ab initio. But Lord Ellen-borough held, that the plaintiff was bound to new assign. “The distinction,” he said, “was taken in the Six Carpenters' case, between a licence given by the party, and a licence given by the law. If the defendant exceeds the latter, as by committing a trespass in an inn, he is a trespasser ab initio ; but an excess of the former must be taken advantage of by a new assignment.” The principle seems to be, that where the matter alleged in the declaration, as in such case, will admit of two constructions, either that it was inserted in aggravation merely, or that the intention was to recover a compensation for it as a distinct injury, the defendant is at liberty by his plea to treat it as of the former description only; and if he docs so, when the plaintiff’s meaning was to change and insist upon it as the latter, he must new assign it, and correct the mistake. Thus, it is said, if the declaration is for entering the plaintiff’s house, and expelling him, and the defendant pleads leave and licence to the entry, and gives no answer to the expulsion, the plaintiff should new assign, that he brought his action not alone for the entry, but likewise for the expulsion. (Hammond's N, P. 127.)

There can be no doubt, then, that if the defendant in the present case had pleaded the licence to enter the house, spe-dally and in bar, the plaintiff might have new assigned the debauching of the daughter, and recovered for that as a distinct substantive trespass; and can the defendant, by pleading the general issue, with notice of the licence, deprive the plaintiff of the matter proper for a new assignment ? In Alsop vs. Price, Doug. 160, it was held, that a plea in that form opened the whole merits of the question on both sides. It was said, that whenever, by an act of parliament, a defendant is permitted to plead generally, and give the special matter of his defence in evidence, the principle is reciprocal, and the plaintiff may also give all special matter in evidence, which tends to support his demand. The plea concluding to the country, it is impossible for the plaintiff to reply the special matter, and so put it on the record ; and, therefore, the only method in which he can show the special matter, is by giving it in evidence. As the defendant, instead of pleading specially in bar, gave notice that he should justify the entry of the house by proof of a licence under the general issue, the plaintiff was entitled to avail himself of the trespass in debauching the daughter, under that issue, the same as he might have done by a new assignment, if the defendant had pleaded the licence in form.

Judgment for the plaintiff.

After the opinion was pronounced, Bates, for the plaintiff, moved the Court to order a certificate of record that the trespass was wilful and malicious; with a view to prevent the defendant from availing himself of the benefit of the poor debtor’s oath.

The Court having taken time to consider the question involved in the motion of Mr. Bates, at a subsequent day in the term, expressed their opinion, that the certificate ought to be allowed.