1st of January, 1836, when it ceased and that the child was born on the 20th of October, 1836. The only corroboration of the witness's testimony was, that the defendant and she were often found to be engaged in familiar conversation in the market, and that they amused themselves sometimes by throwing apples at each other. Amelia Andrews denied that she had ever had connexion with any other than the defendant and that she had ever told a person named Lloyd that she had. . . . TINDAL, C. J., to the jury. You are not confined to the consideration of the mere loss of service, but may give some damage for the distress and anxiety of mind which the mother has felt. If you find for the plaintiff, you will take into consideration the situation in the life of the parties, and say what you think, under all the circumstances of the case, is a reasonable compensation to be given to the mother. The main question is, whether you believe the account given by Amelia Andrews; for, if you do, there is no doubt the case is made out. Verdict for the plaintiff, damages 50l. Talfourd, Serjeant, and Ball, for the plaintiff. Reporter's Note. It is curious to see how the practice of recommending juries to give damages ultra the loss of service has grown up. In a case tried before Mr. Justice Chambre at Worcester, which was an action by a father for the seduction of his natural daughter, the learned judge is said to have told the jury that they must consider her merely in the character of a servant, and award the plaintiff a compensation for the loss of service only: see Selwyn's Nisi Prius, 5th ed., p. 1075. At the Bristol Summer Assizes, in the year 1800, Lord Eldon, who was then Chief Justice of the Common Pleas, told the jury, in the case of Chambers v. Irwin, which was an action by an aunt for the seduction of her niece, that they were not to look merely to the loss of service, but also to the wounded feelings of the party. In the year 1805, Lord Ellenborough, in a case of Southernwood v. Ramsden, told the jury that "damages might be conceded for the loss which the father sustained by being deprived of the society and comfort of his child, and by the dishonour which he receives." In Irwin v. Dearman, 11 East, 23, the Court of King's Bench refused to set aside an inquisition, on the ground of excessive damages. Lord Ellenborough, C. J., said, that the action of seduction was a case sui generis, where, in estimating the damages, the parental feelings, and the feelings of those who stood in loco parentis, had always been taken into consideration; and, although it was difficult to conceive upon what legal principles the damages could be extended ultra the injury arising from the loss of service, yet the practice was now inveterate, and could not be shaken." 75. SIR WILLIAM BLACKSTONE. Commentaries on the Laws of England. (Book III, p. 142. Editor's Note, 30. Phila. ed., 1856.) It appears to be a remarkable omission in the law of England, which with such scrupulous solicitude guards the rights of individuals, and secures the morals and good order of the community, that it should have afforded so little protection to female chastity. It is true that it has defended it by the punishment of death from force and violence, but has left it exposed to perhaps greater danger from the artifices and solicitations of seduction. In no case whatever, unless she has had a promise of marriage, can a woman herself obtain any reparation for the injury she has sustained from the seducer of her virtue. And even where her weakness and credulity have been imposed upon by the most solemn promises of marriage, unless they have been overheard or made in writing, she cannot recover any compensation, being incapable of giving evidence in her own cause. Nor can a parent maintain any action in the temporal courts against the person who has done this wrong to his family, and to his honour and happiness, but by stating and proving that from the consequences of the seduction his daughter is less able to assist him as a servant, or that the seducer in the pursuit of his daughter was a trespasser upon his premises. Hence no action can be maintained for the seduction of a daughter, which is not attended with a loss of service or an injury to property. Therefore, in that action for seduction which is in most general use, viz., a per quod servitium amisit, the father must prove that his daughter, when seduced, actually assisted in some degree, however inconsiderable, in the housewifery of his family; and that she has been rendered less serviceable to him by her pregnancy; or the action would probably be sustained upon the evidence of a consumption or any other disorder, contracted by the daughter, in consequence of her seduction or of her shame and sorrow for the violation of her honour. It is immaterial what is the age of the daughter, but it is necessary that at the time of the seduction she should be living in, or be considered part of her father's family. 4 Burr. 1878. 3 Wils. 18. It should seem that this action may be brought by a grandfather, brother, uncle, aunt, or any relation under the protection of whom, in loco parentis, a woman resides; especially if the case be such that she can bring no action herself; but the courts would not permit a person to be punished twice by exemplary damages for the same injury. 2 T. R. 4. 76. SNIDER v. NEWELL SUPREME COURT OF NORTH CAROLINA. 1903 132 N. C. 614; 44 S. E. 354 APPEAL from Superior Court, Mecklenburg County; SHAW, Judge. Action by J. F. Snider against W. B. Newell. From a judgment of nonsuit, plaintiff appeals. Reversed. Jones & Tillett, for appellant. Burwell & Cansler, for appellee. CONNOR, J. This is an action prosecuted by the plaintiff for the recovery of damages alleged to have been sustained by reason of the seduction by the defendant of his daughter, whereby he "lost the services of his said daughter, and the reputation of his family was thereby greatly injured, and he suffered great mental anguish and humiliation." The defendant admitted that he had illicit carnal intercourse with the daughter, but denied that the plaintiff lost her services thereby, or suffered otherwise. The plaintiff introduced evidence tending to show that his daughter, when about eighteen years of age, was seduced and debauched by the defendant; that he had repeated acts of sexual intercourse with her in the plaintiff's house, in which his daughter resided as one of his family; that such intercourse was had at night, the defendant going to the room of the daughter, entering through her bedroom window; that the plaintiff knew nothing of the defendant's conduct until it had continued about a year, when he charged the defendant with it, when he admitted the truth of the charge. The plaintiff testified that he was greatly shocked; that the matter greatly pressed on his mind, and he thought they were all disgraced; that the daughter was, prior to the sexual intercourse with the defendant, chaste, pure, and virtuous; that defendant is a married man. The defendant introduced no testimony, but moved the Court to dismiss the action as upon a nonsuit. The Court allowed the motion, the plaintiff excepted and appealed. The judgment of his honor is based upon the conclusion of law that the plaintiff had not shown any loss of service, or any diminution of the daughter's capacity to serve him, and could not, for the other injuries alleged, maintain the action. The demurrer to the evidence admits the truth of the plaintiff's testimony, together with every reasonable inference to be drawn therefrom most favorable to the plaintiff, but presents the question whether the plaintiff's testimony is sufficient to base a finding of such loss of service as is necessary to maintain the action. The plaintiff has alleged a loss of service, mental anguish, and mortification. We have been unable to find, after a very careful and diligent search, a case in England or America in which the declaration or complaint has failed to allege loss of service. The action at common law was trespass vi et armis, or trespass on the case per quod servitium amisit. Briggs v. Evans, 27 N. C. 16. The gravamen of the action was that the daughter was the servant of the plaintiff, and that by her seduction he lost her services. Taylor, C. J., in McClure's Executors v. Miller, 11 N. C. 133, says: "It is characterized by a sensible writer as one of the 'quaintest fictions' in the world that satisfaction can only be come at by the father's bringing the action against the seducer for the loss of his daughter's services during her pregnancy and nurturing." . . . The case of Anthony v. Norton, 60 Kan. 341, 56 Pac. 529, 44 L. R. A. 757, 72 Am. St. Rep. 360, unmistakably holds that "the action could be maintained on the bare relation of parent and child alone." It is one of the most striking illustrations of the conservatism of the profession and the bench that, although there has been a constant protest against the necessity for resorting to this "quaintest fiction" or legal "figment," the Courts have not felt justified in abandoning it. We find most careful and accurate counsel in all of the cases alleging loss of service. Sir Frederick Pollock, in his work on Torts, pp. 222, 223, says: "There seems, in short, no reason why this class of wrongs [injuries in family relations] should not be treated by the common law in a fairly simple and rational manner, and with results generally not much unlike those we actually find, only free from the anomalies and injustice which flow from disguising real analogies under transparent but cumbrous fictions. But, as a matter of history (and pretty modern history), the development of the law has been strangely halting and one-sided. Starting from the particular case of a hired servant, the au thorities have dealt with other relations not by openly treating them as analogous in principle, but by importing into them the fiction of actual service, with the result that in the class of cases most prominent in modern practice, namely, actions brought by a parent (or person in loco parentis) for the seduction of a daughter, the test of the plaintiff's right has come to be, not whether he has been injured as the head of the family, but whether he can make out a constructive 'loss of service."" He discusses the question with his usual clearness and force, saying: "The capricious working of the action for seduction in modern practice has often been the subject of censure. Thus, Sergeant Manning wrote more than fifty years ago: 'The quasi fiction of servitium amisit affords protection to the rich man whose daughter occasionally makes his tea, but leaves without redress the poor man whose child is sent unprotected to earn her bread among strangers."" While, in a certain sense, "fictions have had their day," and are not to be permitted to hamper the Courts in the administration of justice, we must be careful that we permit not ourselves, because we live in days of Codes of Civil Procedure, to conceive that we may altogether break away from the wisdom and experience of the past. As was said by the great Chief Justice Pearson in regard to estoppel: "According to My Lord Coke, an estoppel is that which concludes and 'shuts a man's mouth from speaking the truth.' With this forbidding introduction, a principle is announced which lies at the foundation of all fair dealing between man and man, and without which it would be impossible to administer the law as a system." Armfield v. Moore, 44 N. C. 161. Sir Henry Maine, in his great work on Ancient Law, tells us that a legal fiction is "a rude device, absolutely necessary in early stages of society; but fictions have had their day." He says: "It is not difficult to see why fictions in all their forms are particularly congenial to the infancy of society. They satisfy the desire for improvement, which is not quite wanting, at the same time that they do not offend the superstitious disrelish for change, which is always present. At a particular stage of social progress, they are invaluable expedients for overcoming the rigidity of law, and, indeed, without one of them- the fiction of adoption, which permits the family tie to be artificially created it is difficult to understand how society would ever have escaped from its swaddling clothes, and taken its first step towards civilization. . . . To revile them as merely fraudulent is to betray ignorance of their peculiar office in the historical development of the law. But at the same time it would be equally foolish to argue with those theorists who, discovering that fictions have had their uses, argue that they ought to be stereotyped in our system." Pages 25, 26. He wisely concludes that it will be necessary to "prune them away." However interesting and inviting this field may be, it is hardly proper to investigate it in the decision of this case. We are not called upon to say more than that Courts should move forward, and yet cautiously, in dispensing with even "fictions." We must bear in mind that the law of procedure as well as substantive law is not a thing to be manufactured, but is the result of growth and careful conservative progress. While we find no difficulty in holding that "it is not necessary, in order for a parent to maintain an action for the seduction of his daughter, that he prove actual services or the loss thereof," it is sufficient that it be shown that the child is a daughter of the person suing, and residing in his family as such, or is elsewhere with his consent and approval. Rogers on Domestic Relations, § 839. We carefully refrain from advancing further than is necessary in this case. It would not require any considerable foresight to see a large yielding of suits for seduction brought by collateral relations upon the suggestion of loss sustained in social position, business relations, mortified sensibilities, etc. We have a striking illustration of this in Young v. Tel. Co., 107 N. C. 370, 11 S. E. 1044, 9 L. R. A. 669, 22 Am. St. Rep. 883, in which it was held that a husband, to whom a message had been sent notifying him of the sickness of his wife, could, in an action for failure to deliver promptly, recover, in addition to nominal damages, compensation for mental anguish. Since the decision of that case, we have suits for "compensation for mental anguish" brought by persons of almost every kind and degree of kinship, and we have good reason for thinking that “the end doth not yet appear." It is undoubtedly true that, as we come into a clearer view of social, domestic, and business relations, with their resulting rights and duties, the Courts will guard these relations, and protect them by appropriate remedies, both preventive and remedial. In doing so, the principles underlying our jurisprudence must not be violated, or sentimental emotions be made cause of actions; nor must we permit the tenderest and most sacred relations of life to become sources of profit and speculation. In the view which we take of this case, the plaintiff was entitled to maintain his action upon his allegation and proof. We find abundant authority, both in and beyond this State, to sustain this conclusion. . . . We thus see that, while the Courts have protested against the rule of law requiring the allegation of the fiction upon which the action is based, they have wisely wrought out the substantial remedy by recognition of the relation, with all of its incidents, rights, and duties, of parent and child. It is difficult to conceive how a daughter who has been seduced and debauched, as the testimony in this case shows, can be said not to have had her ability to serve her father diminished; hence we place our decision upon the allegation and testimony in the record. His honor was in error in sustaining the demurrer to the evidence, and the case should have been submitted to the jury under proper instructions. There must be a new trial. WALKER, J., having been of counsel, did not sit on the hearing of this case. CLARK, C. J. (concurring in result).1 1 [PROBLEMS : The plaintiff's child, three months old, being ill, was poisoned by administering a drug, culpably compounded by the error of the defendant druggist, and died in |