Hamilton v Long

• Jurisdiction: Ireland
• Judgment Date: 03 November 1902
• Docket Number: (1901. No. 7967.)
• Date: 03 November 1902
• Court: King's Bench Division (Ireland)

HAMILTON

and

LONG

K. B. Div.

Action of seduction — Girl seduced while living with her father and mother — Child born after death of girl's father — Action by her mother ——

Barbour v. BarronDLTR 28 I. L. T. R. 97.

Davies v. Williams 10 Q. B. 725.

Evans v. WaltonELR L. R. 2 C. P. 615, at p. 621.

Fores v. WilsonENR 1 Peake, 77.

Foundation v. KatingeUNKIR I. R. 9 C. L. 278.

Gray v. Jones Ir. Circ. R. 46.

Grinnell v. WellsENR 7 Man. & G. 1033.

Hedges v. TaggELR L. R. 7 Ex. 283, at p. 285.

Hoare v. NiblettELR [1891] 1 Q. B. 781.

Kearney v. M'MurrayDLTR 28 I. L. T. R. 148.

Maunders v. VennENR 2 Mood. & M. 323.

O'Reilly v. GlaveyDLTR 27 I. L. T. R. 36.

Palliser v. GurneyELR 19 Q. B. D. 519.

Re JuppELR 39 Ch. D. 152, 153.

Rist v. VauxENR 4 B. & S. 409.

Seroka v. KattenburgELR 17 Q. B. D. 177.

Stogdon v. LeeELR [1891] 1 Q. B. 661.

Terry v. HutchinsonELR L. R. 3 Q. B. 599.

Thompson v. RossENR 6 H. & N. 16.

Weldon v. WinslowELR 13 Q. B. D. 784.

Wennhak v. MorganELR 20 Q. B. D. 635.

Whitbourne v. WilliamsELR [1901] 2 K. B. 722.

Whittaker v. KershawELR 45 Ch. D. 520.

Von. II.] KING'S BENCH DIVISION. 407 HAMILTON v. LONG (1). B. Div. 1902. (1901. No. 7967.) Oct. 28, 29. Nov. 3. Action of seduction—Girl seduced while living with her father and mother Child born after death of girl's father—Action by her mother—Married Women's Property Act, 1882 (45 4, 46 Vict. c. 75), sect. 1, sub-sect. 2—Married Women's Property Act, 1893 (56 4- 57 Vict. c. 63), s. 1. The plaintiff, a widow, brought an action for the seduction of her daughter S. The seduction took place in the lifetime of the plaintiff's husband, S.'s father, and while S. was living with her parents, who were persons of humble rank. After her father's death S. continued to reside with the plaintiff, render ing her the ordinary household services. Two months after her father's death S. was delivered of a child, the result of the seduction:— Held, that the action could not be maintained by the plaintiff, either by the common law or by virtue of the Married Women's Property Acts. MOTION, on behalf of the plaintiff, to enter verdict and judgÂment for her. The action was brought by the plaintiff Mrs. Elizabeth Hamilton, a widow, to recover damages for the seduction of her daughter Sarah Hamilton. The defence denied that Sarah was servant of the plaintiff, and also the fact of the seduction. The action was tried before the Lord Chief Baron and a common jury of the county of Londonderry. At the hearing evidence was adduced on the part of the plaintiff that in the month of September, 1900, the plaintiff's daughter Sarah, who was at that time about twenty-five years of age, and living with her father and mother, people in a humble rank of life, was seduced by the defendant, and that as a consequence of the seduction she was delivered of a child on the 11th of May, 1901. The plaintiff's husband, the father of Sarah, had died in March, 1901, two months before the birth of the child. After her father's death Sarah had lived with her mother, helping her in the household duties. The defendant gave evidence in disproof of the seduction by him. The Lord (1) Before Loan O'BRIEN, L.C.J., and GIBSON and MADDEN, JJ. 408 THE IRISH REPORTS. [1903. K. B. Div' Chief Baron left the following questions to the jury :—(1) Is the 1902. defendant the father of the child of the plaintiff's daughter Sarah ? HAMILTON V. (2) If so assess the plaintiff's damages. The jury answered the first LONG. question in the affirmative, and assessed the damages at £40. The Lord Chief Baron concluded his report of the trial by stating as follows :—" Until the time this verdict was given no reference had been made on either side to the question whether there was eviÂdence that Sarah was the servant of the plaintiff. As, however, it had been proved by Mrs. Hamilton that her husband had died in March, 1901, being only two months before the birth of the child, I thought it right to call the attention of counsel to the fact that at the time of the seduction Sarah was living with her father and mother, and I suggested to them to consider whether under these circumstances the action was sustainable by the mother. As I was not aware of any decision on the question, I thought it better not to enter judgment. My own impression, however, was that as, since the Married Women's Property Act of 1882, a contract could be made by a married woman, that under such circumstances as existed in the present case the jury might infer that at the time of the seduction Sarah was the servant of both her father and mother or even the servant of her mother alone. I was not asked by either party to leave any question to the jury in relation to this matter. Had any such question been left I am satisfied the jury would have found it in favour of the plaintiff. I stated that the pleadings were to be deemed amended in any way which might be deemed necessary to raise the question." The Lord Chief Baron abstained from entering judgment, leaving either party to move. Horner (with him Drummond, K.C.), for the plaintiff : We contend that at the time of the seduction the daughter was under a contract of service either jointly with the father and mother, or else with the mother alone. A married woman has now the same power of contracting as a fe'ne sole, and the possesÂsion of separate estate is not necessary : Married Women's...