Art. 1. Definitions and Distinctions. A person seduced cannot bring an action for the seduction. The only mode in which such an action has ever been maintained has been by bringing the action in the name of some person having a right to the services of the person seduced, allowing damages not only for the actual loss of services, but also for a sum sufficient to punish the seducer. Hamilton v. Lomax, 26 Barb. 615, 6 Abb. Pr. 142. Criticising the theory of the action, Mason, J., in Badgley v. Decker, 44 Barb. 577, said: "All the modern cases hold that the legal gravamen of the action is not the real gravamen, as is apparent when we come to consider the rule of damages in the action, and judges have not infrequently spoken of the action as resting upon a fiction. The real gravamen of the action is * Even where the loss of services * not the loss of services. * * * * is small, the highest damages are given. The real gravamen of the action is the mortification and disgrace of the family and the wounded feelings of the plaintiff." Cooley (on Torts [2d ed.], 268) says: The action is, therefore, planted rather upon a loss in the character of the master of a servant than in that of the head of a family. In Shufelt v. Rowley, 4 Cow. 58, the plaintiff claimed costs in the Supreme Court because the action was for trespass, assaulting the plaintiff's daughter and getting her with child. The court said: "This is not technically the action of assault and battery. The gist of the action is loss of services * * and thus the plaintiff is entitled to Common Pleas costs only." * The absurdity of the common-law theory of the action is thus criticised in Ellington v. Ellington, 47 Miss. 329: "That system of jurisprudence which punishes in damages the slightest aggression upon property, but denies redress to the father, and if he be dead, to the mother, for the defilement of an infant daughter, except upon a predicate of a loss of services, is at variance with the sentiments and conscience of this age." For a recent case where the action was allowed by a female ward against her guardian, and which marks a point of departure from the strict common-law rule, see Graham v. Wallace, 50 App. Div. 101, 63 N. Y. Supp. 372. In addition to the civil actions for damages, the subject of this chapter"Seduction" - under some circumstances may be punished as a crime; but not all seductions are criminal. A criminal action lies in this State only where the seduction is accomplished under a promise of marriage. In such cases an express promise, at least upon the part of the defendant, must be shown. The mutual promise on the woman's part may be inferred. People v. Kane, 14 Abb. Pr. 15. In the criminal action it must be shown that the seduction was accomplished (1) under promise of marriage; (2) that the female was previously chaste, and (3) no conviction can take place upon the testimony of the seduced unsupported by other evidence. People v. Lomax, 6 Abb. Pr. 139. The criminal action is provided for by Penal Code, § 284, as follows: "A person who, under promise of marriage, seduces and has sexual intercourse with an unmarried female of previous chaste character, is punishable by imprisonment for not more than five years, or by a fine of not more than one thousand dollars, or by both." § 285. Subsequent marriage. The subsequent intermarriage of the parties, or the lapse of two years after the commission of the offense before the finding of an indictment, is a bar to a prosecution for a violation of the last section. $286. No conviction on certain testimony.- No conviction can be had for the offense specified in section 284 upon the testimony of the female seduced, unsupported by other evidence. As far as the criminal action under the statute is concerned, merely having sexual intercourse with a female does not constitute seduction. In seduction the defendant must use insinuating arts to overcome the opposition of the seduced. People v. Gumaer, 4 App. Div. 412, 39 N. Y. Supp. 326. Art. 2. Remedies. In a criminal action the promise of marriage which is necessary must be absolute, unconditional promise; thus a promise to marry the woman if she is made pregnant will not support a conviction. People v. Ryan, 63 App. Div. 429, 71 N. Y. Supp. 527; People v. Van Alstyne, 144 N. Y. 361; People v. Duryea, 81 Hun, 390, 30 N. Y. Supp. 877. SUBDIVISION 2. Civil Action. By Code of Civil Procedure, § 2863, justices of the peace cannot take cognizance of a civil action to recover damages for a seduction. As to the jurisdiction of the New York Municipal Court, City Court of Albany, and Troy Justices' Court, see title "Jurisdiction in Assault and Battery; Code Civ. Proc., S$ 2863, 3215, 3223. By subdivision 1 of section 384 of the Code of Civil Procedure, an action for seduction must be brought within two years. It has been held, in a criminal action under the statute, that a woman can be seduced but once, and the statute of limitations begins to run from the first act of voluntary intercourse committed by her after she is fully able to understand its nature and enormity. People v. Nelson, 153 N. Y. 90, reversing 91 Hun, 634. The executors or administrators of a deceased father or master cannot maintain an action for seduction in the father's lifetime of his daughter or servant. These causes of action are purely personal and like assault, libel, and slander, die with the person. George v. Van Horn, 9 Barb. 523. Moak's Underhill on Torts, 345, states that, where death is caused by the seduction, probably no action could be maintained on the ground that "actio personalis moritur cum persona," citing Osborn v. Gillett, L. R., 8 Exch. 88. But attention is 'called to the fact that, in the common-law action for seduction, the daughter is not a party, and it is difficult to see how her death can affect the action. Attention is called to the case of Lawyer v. Fritcher, 54 Hun, 586, 28 St. Rep. 221, 7 N. Y. Supp. 909, affirmed in 130 N. Y. 239, where an action was allowed the father after the daughter committed suicide after the seduction; the question of abatement of the action does not there seem to have been raised. Though there is no decision upon the point in this State, it Art. 3. Elements of the Wrong. would seem that if the seduction resulted in the death of the woman, no action would lie by her executor or administrator to recover damages for the wrongful act, under section 1902 of the Code of Civil Procedure, as such an action is only authorized in such cases where the defendant would have been "liable to an action in favor of the decedent by reason thereof if death had not ensued." As is seen, the action may be maintained by the father independently of the statute, even though the daughter be dead. It would seem, however, that if it were a case of assault, coupled with rape, an action would lie by the executrix, for in that case the decedent might have sued. * (1) where it is By section 1910 of the Code of Civil Procedure any claim or demand can be transferred, except * * to recover damages for personal injury * * * As seduction is defined as a personal injury by section 3343 of the Code, subdivision 9, such claim or demand cannot be transferred. A parent may recover for the injury done to him, for the loss of services and expenses of confinement of the daughter, although she was not virtuous, unless he connived at or knew of her criminal intercourse. The loss of services and expenses of confinement are the ground of the action. Ackeraley v. Haines, 2 Cai. 292. In some jurisdictions, it may be shown that other persons had intercourse with the woman previous to the seduction. Eager v. Grimwood, 1 Exch. 61; White v. Murtland, 71 Ill. 250. It has been held that the consent of the daughter to the intercourse is no defense to an action brought by the parent, as his loss of service is the same in either case, though the consent may be shown in mitigation of damages. Damon v. Moore, 5 Lans. 454, distinguishing Higgins v. Creagan, 6 Robt. 128. See, further, "Defenses," art. IV; "Consent." Art. 3. Elements of the Wrong. It is immaterial whether the defendant accomplish his purpose by artifice and persuasion or by force. Where it is shown that the daughter is debauched without the father's consent, resulting in a loss of services, the gist of the action is made out. Lawrence v. Spence, 99 N. Y. 669, affirming 29 Hun, 169. This in effect overrules the dictum that seduction must be accomplished without force, as expressed in Hogan v. Creagan, 6 Robt. 138. It is no defense to show that the illicit connection was obtained by force and without the consent of the daughter. Lawrence v. Spence, 29 Hun, 169, Learned, J., dissenting. Though the connection was accomplished by force and against the will of the woman, the action of seduction lies, nevertheless. In such cases, unlike an action for assault and battery on a child, when brought by the parent, exemplary damages may be recovered. The court said: "The injury to the parent in these cases is the same. The disgrace and wounded feelings are the same, when accomplished by insinuating arts, wiles, and strategy, and persuasion. He abuses the simplicity and confidence of the victim, without force, or by art and force combined, or by force alone. I think the action can be maintained and exemplary damages recovered, whether the injury is inflicted within or without the technical meaning of what may be called seduction." Damon v. Moore, 5 Lans. 454, disapproving Hogan v. Creagan, 6 Robt. 131. The stricter English cases hold that the seduction must be followed by pregnancy or disease to warrant a recovery. See Eager v. Grimwood, 1 Exch. 61. But the modern doctrine, on the whole. tends to sustain the action whether followed by pregnancy or disease or not, if injury to the health can be shown which would interfere with services. For example, if it became necessary for the plaintiff to send his daughter away for recovery. Abraham v. Kidney, 104 Mass. 222. But the loss of health must be the proximate and necessary effect of the seduction; as, for example, where the illness is brought on by distress of mind; or by the fact that the defendant abandoned the woman. Boyle v. Brandon, 13 M. & W. 738. Neither pregnancy nor disease is essential to the maintenance of a parent's action for seduction. Leloup v. Eschausse, 2 City Ct. 55. In Ingerson v. Miller, 47 Barb. 47, it was held that mere seduction, without pregnancy, ill-health, or injury to the servant, will |