Weaver v. Bachert

• Decision Date: 14 January 1845
• Citation: 2 Pa. 80
• Parties: WEAVER <I>v.</I> BACHERT.
• Court: Pennsylvania Supreme Court

2 Pa. 80

WEAVER v. BACHERT.

Supreme Court of Pennsylvania.

December 16, 1845.

January 14, 1845.

Dec. 16.

ERROR to the Common Pleas of Lehigh county.

W. A. Porter and J. M. Porter, for plaintiff.—1. The only case supporting such evidence is Peppinger v. Law, 1 Halst. 384, and that is founded on Hutton v. Mansell, 6 Mod. 172, which was after express promise, and is bad law. [Burnside, J. — The case is good to prove assent by the woman, though the book be bad.] 2. Seduction is a separate action, and cannot be brought by the woman; and it is not admitted in aggravation in an action by her. Paul v. Frazier, 3 Mass. 71, is an obiter dic.; Burks v. Shain, 2 Bibb. 341. The offer must be express, 2 Saund. Pl. and Ev. 666; Burks v. Shain, antè; Martier v. Patton, 1 Littel, 235; and the refusal as much so, 7 Cow. 22, 2 Saund. Pl. and Ev. 665.

A. E. Brown, contrà.—1 Ros. Civ. Ev. 193, 194; 2 Stark. Ev. 942, Peppinger v. Law and Hutton v. Mansell, antè; Boynton v. Keller, 3 Mass. 191; Con v. Wilson, 2 Overton, 233; 2 Saund. Pl. and Ev. 665, 666.

Jan. 14. GIBSON, C. J.

The decision of the point before us by the Supreme Court of Kentucky, in Burks v. Shain, 2 Bibb, 343, seems to be founded in the true principles of the action. The mind is indeed at first inclined to doubt it, by the inequality of the consequences of seduction, which are borne by the feebler party, and produced by her confidence in the promise whose breach is the ground of the action. Still illicit intercourse is an act of mutual imprudence; and the law makes no distinction between the sexes as to the comparative infirmity of their common nature. A woman is not seduced against her consent, however basely it be obtained; and the maxim volenti non fit injuria is as applicable to her as to a husband, whose consent to his own dishonour bars his action for criminal conversation. This maxim runs through a variety of actions, such as those for injury from mutual negligence; or for the recovery back of money voluntarily paid, where there was no debt; and some others. It extends even to contracts, in the forming of which the parties are equally culpable, the consideration being immoral or illegal. If, then, a woman cannot make her seduction a ground of recovery directly, how can she make it so indirectly? Parties may show their circumstances and condition in life as matter of aggravation or mitigation, but these have no connection with their participation in the act complained of; and no court has gone further. Even the rejection of another suitor must be laid as special damage, Archb. N. P. Suppl. 281; and that there is no precedent for a declaration in which seduction has been so laid, is strong evidence that it enters not into the action in any shape. It was, indeed, said by Chief Justice Parsons, in Paul v. Frazier, 3 Mass. 73, that where seduction has been practised under colour of a promise of marriage, the jury may consider it to aggravate the damages in an action on the contract. That, however, was not the point decided; and there was neither reason nor authority given for the doctrine in that case, or in Con v. Wilson, 2 Overton, 233; while the converse of the point decided in Burks v. Shain was held in Tulledge v. Wade, 3 Wils. 18, and Foster v. Scofield, 1 Johns. 297, where it was ruled that in an action for seduction a promise of marriage cannot be given in evidence to swell the damages. If a father could give such evidence in his action for the seduction; and if the daughter could give evidence of seduction in her action on the promise, the defendant would be doubly exposed to vindicatory damages. The bastardy ought, therefore, to have been excluded from the evidence and the charge.

But a more grave objection lies to the want of evidence, that there were mutual promises, or any promise at all. Witnesses were examined to prove the separate and contradictory...