M. Foster against Scoffield, son of Scoffield, 1 Johns. 297

Kent, C. J. The difficulty is, that in this way, you do, in effect, make the daughter a witness in her own cause. Emmett. But if she were incompetent, yet she has agreed to bring no action against the defendant, thereby relinquishing her right, and removing all objections to her competency. This sort of action, has, of late years, been much freed from those technical rules by which it was originally framed. It is now, no longer a mere remedy for loss of service. That is used as mere form or colour of action. In the case of Bedford v.

M’Kowl, where the counsel for the defendant objected to the admission of any evidence, but what applied to the loss of service, Lord Eldon said, “ In point of form the action only purports to give a recompense for loss of service; but we cannot shut our eyes to the fact, that this was an action brought by a parent for an injury to her child. In such case, I am cf opinion, that the jury may take into consideration all that she can feel, from the nature of the loss.” If in any case, the damages ought to be exemplary, this is one.

The defendant ought to smart for his breach of honour and good faith, and to" suffer for such gross misconduct. If the misconduct of the defendant, be aggravated by hjs previous promise of marriage, why not permit the plaintiff, according to the more liberal views of this form of action now prevailing, to give that aggravation in evidence ? If it can be given in evidence at all, why not prove it by the daughter, who is allowed to be a competent witness, in every other respect, at least, as well as by a stranger, or third person,. especially when she consents to waive all right of action herself, on that account ?

In the case of Elmonson v. Machell, which was an action brought by the aunt, for an assault of her niece, in which damages were also given for the injury sustained by the niece, the court, on the niece’s consenting not to try hep action, refused td set aside the verdict, on any strict 7 * * done between the parties. point of law, believing that no more than justice had been Spencer, J. It does not appear from the report of that ease, that the niece was the witness who proved the assault. Benson, on the same side.

In all cases of mere tort for implied damages, every matter which may weigh in the estimation of damages, ought to go to the jury. In almost every case of this kind, there is a promise of marriage, and whether there is, or is not, such a promise, must enhance, or diminish the injury. The daughter ought to be admitted as awitness ; it is for that very reason that the action is brought in the name of the parent. The form is a merejiction; the object of the suit is to obtain reparation for the injury done to the family.

On all trials of actions of this kind, the question is, did the defendant visit you in the way of courtship ? This is tantamount to asking her, did the- defendant promise you marriage ? Livingston, J. I am convinced that the admission of this testimony, and my charge to the jury were both incorrect.

The daughter was not only interested to say what she did, in support of her own reputation, but was swearing to enable the father to recover, in an action for the loss of his daughter’s service, compensation for a breach of the promise of marriage, in itself a substantive and distinct cause of action, and ■with which he had nothing to do, and against which the defendant would not be ready to defend himself. Testimony ef this nature has never been admitted in England. Per Curiam.

The law is settled, that in a suit by the father, for debauching his daughter, the daughter cannot be a witness to prove a promise of marriage, in order to increase the damages, for she has herself a right of action against the defendant. The father’s action is for a tort; that of the daughter is for a breach? of the contract, made between her and the defendant. New trial granted. 3 Espinasse's cases, 119. 2 Term, 4. See Tullidge v. Wade. 3 Wilson, 18.