prove a previous seduction; yet, as in this case the illicit intercourse is alleged to have been kept up for some time after 1878, and it was a part of the plaintiff's case that she was begotten with child by the defendant in 1880, the acts of familiarity which were testified to in 1878 were not without importance. They tended to show an existing condition of things such as the plaintiff had set up, and rendered more probable the story of continuous intercourse, to which she afterwards testified.

It was urged by the defendant that on the evidence of the plaintiff the action could not be maintained, because as she claimed, the intercourse was accomplished by force, and was therefore not seduction, but rape. But the plaintiff's evidence did not make out a rape: it made out only that her will was overcome by the defendant's superior will, which had controlling influence because of the parental relation which he had assumed towards her. If the case were in fact one of rape, there would be very good authority for holding that the action might be sustained notwithstanding the fact that the intercourse was accomplished by force. Kennedy v. Shea 110 Mass. 147: s. c. 14 Am. Rep. 581; Damon v. Moore 5 Lans. 454; Lavery v Crooke 52 Wis. 612: s. c. 38 Am. Rep. 768. It was also urged that suspicion was cast upon the story of the plaintiff by the fact that she did not make immediate complaint when the wrong was first committed, and instructions to the jury were requested to that effect. We think there was no error in refusing them. Counsel was at liberty to comment upon the fact if he deemed it advisable to do so, and perhaps the judge also; but the judge could not lay down any rule of law in respect to it which would benefit the defense. Obviously, as respects immediate complaint, rape and seduction present very different considerations. When the truth of a charge is being investigated, in the light of the conduct of parties concerned, we are to consider what the behavior would naturally have been had the charge been true; and while all would probably agree that a virtuous woman who had been ravished would be likely to make iminediate outery, or disclosure, very different conduct would be

looked for in case of seduction. The woman seduced is more likely to reveal her shame only when concealment is no longer possible, especially where the seducer holds towards her some family relation.

One of the assignments of error concerns the evidence given by the plaintiff, that at one time, not very distinctly specified, but which would seem to have been in the winter before the birth of the child, the defendant informed her that he had concealed four hundred dollars in a specified place, which she was to have in case he should die before her, and in that event he desired her to take it, but to let no one know about it. It does not appear from the evidence that this conditional gift was the result of any previous understanding or promise, or that it had any connection whatever with the previous or continuing sexual intercourse. Neither was it shown that the defendant then knew the plaintiff was in the family way. If we believe the plaintiff's charge, we should naturally attribute such a gift by the defendant to a desire to make some compensation for the wrong done. If we believe the defendant truthful, the con ditional donation may, on the other hand, be referred to very proper sentiments. The plaintiff had, at that time, been for eight years a member of defendant's family, occupying the place of a child, though not formally adopted. If she survived him the law made no provision for her as a child, and this small gift he might very well make, and probably ought to make, if their relations had been perfectly innocent. The secrecy in the case might seem to require explanation; but there might be very good reasons for making such a gift in such a way that it could not become the subject of possible family contention after his death. The act of making it was therefore apparently as consistent with good motives and honorable conduct as with a consciousness. of crime; and it naturally indicated crime only to a mind already convinced. Conduct from which such opposite deductions are not only admissible, but would be natural, according to the prepossessions we may have respecting the person, ought not to be proved. The very reception of the

evidence as tending to prove guilt casts a suspicion upon the act sworn to which it cannot be seen even probably to deserve; and it may, consequently, work great injustice. The exception is well taken.

When the plaintiff was giving evidence on her own behalf she was asked what the defendant had told her respecting his pecuniary circumstances. Objection was made to the question, but she was allowed to answer, and she stated that he had told her he was worth twenty thousand dollars. The avowed purpose of giving this evidence was to swell the damages. In the instructions to the jury the trial judge did not pointedly call their attention to it, but he instructed them that, in awarding damages for the shame and ignominy which the plaintiff has suffered by reason of the wrongful act of the defendant, they might award to the plaintiff such sum as their fair and deliberate judgment and discretion. should dictate, having regard to all the circumstances of the case the seduction, and relation of the parties before and at the time of the alleged wrong to the plaintiff. The jury must, therefore, have understood they were at liberty to give damages with some regard to the amount of the defendant's pecuniary means.

If this were an action for breach of promise of marriage the wealth of the defendant would have been a fair subject of inquiry; but this is for the obvious reason that the plaintiff's loss in such a case has direct relation to the means of the man she was to marry. Miller v. Rosier 31 Mich. 475; Bennett v. Beam 42 Mich. 346: s. c. 36 Am. Rep. 442; Kelley v. Riley 106 Mass. 339: s. c. 8 Am. Rep. 336; Kniffin v. McConnell 30 N. Y. 285. In several cases it has been held that similar evidence is admissible in actions brought for malicious injuries to plaintiff's reputation. Karney v. Paisley 13 Iowa 89; Hayner v. Cowden 27 Ohio St. 292: s. c. 22 Am. Rep. 303; Humphries v. Parker 52 Me. 502; Bennett v. Hyde 6 Conn. 24, somewhat qualified in Case v. Marks 20 Conn. 248; Iosley v. Brooks 20 Ill. 115. In Holmes v. Holmes 64 Ill. 294, it appears to have been received by the court with some degree of dissatisfaction, and in

Alabama it is rejected. Donnell v. Jones 13 Ala. 490; Seay v. Greenwood 21 Ala. 494; Ware v. Cartledge 24 Ala. 622. In this State the admission of such evidence has been held not error, where the judge carefully cautioned the jury against giving it any consideration except as bearing upon the injury likely to flow from slanders by a man of the defendant's standing. Brown v. Barnes 39 Mich. 211: s. c. 33 Am. Rep. 375. Like evidence has been held proper in some cases of criminal conversation. Yundt v. Hartrunft 41 Ill. 9; Rea v. Tucker 51 Ill. 110; Peters v. Lake 66 Ill. 236: s. c. 16 Am. Rep. 593; contra, James v. Biddington 6 Car. & P. 589. Some courts hold this evidence admissible in all cases of tort which are accompanied by such circumstances of aggravation as are proper to be considered in measuring the plaintiff's damages; and it has been received in cases of trespass to the person, and even of trespass to property. Birchard v. Booth 4 Wis. 67; McNamara v. King 7 Ill. 432; Smith v. Wunderlich 70 Ill. 426; Bell v. Morrison 27 Miss. 68; Rowe v. Moses 9 Rich. 423; M'Connell v. Hampton 12 Johns. 234. Its reception is generally put upon the express ground that one purpose of the suit in such cases is to punish the defendant; and that such damages as might be severe punishment to a poor man would be no punishment at all to a man of great wealth. In actions for seduction the plaintiff has sometimes been allowed to give evidence of the defendant's pecuniary circumstances. Grable v. Margrave 4 Ill. 372: s. c. 38 Am. Dec. 88; White v. Murtland 71 Ill. 250: s. c. 22 Am. Rep. 100; Applegate v. Ruble 2 A. K. Marsh. 128; McAulay v. Birkhead 13 Ired. 28; Clem v. Holmes 33 Grat. 722: s. c. 36 Am. Rep. 793; Lavery v. Crooke 52 Wis. 612: s. c 38 Am. Rep. 768. But in England it is held that the pecuniary circumstances of defendant are not to be proved in suits for seduction; Hodsoll v. Taylor L. R. 9 Q. B. 79; and Blackburn J., explains Andrews v. Askey 8 C. & P. 7, which has been supposed to lay down a different rule, and shows that the judge in that case pointedly omitted to include the defendant's means as an element of damages. In Iowa such evidence has been excluded

in actions for assault and battery, Hunt v. Chicago &c. R. R. Co. 26 Iowa 364; Guengerech v. Smith 34 Iowa 348; and also in suits for seduction. West v. Druff 55 Iowa 335. In Dain v. Wycoff 7 N. Y. 191, 193, Gardiner J., in an action for seduction, condemns such evidence in very pointed language. The suit in that case was brought by the master, nominally for loss of service, as was formerly the case here. "The elementary writers," he says, "concur in saying that damages beyond the mere loss of service may be given for the dishonor of the plaintiff and his family and for injured feelings. But those damages are notwithstanding intended as a compensation for an actual though indefinite injury to which the plaintiff has a right, whatever may be the circumstances of the defendant, and upon principle to nothing more. If the defendant cannot show his poverty in mitigation of damages, there is no reason why the plaintiff should aggravate them by proof of his wealth." And he adds with much good sense: "There can be no reason why twelve men wholly irresponsible should be allowed to go beyond the issue between the parties litigating, and after indemnifying the plaintiff for the injury sustained by him proceed as conservators of the public morals to punish the defendant in a private action for an offense against society."

In Illinois it has been held in one case that the poverty of the plaintiff, as well as the wealth of the defendant, may be an element in aggravation of damages in cases of malicious torts. McNamara v. King 7 Ill. 432. But there could be no general rule to that effect. See Chicago v. O'Brennan 65 Ill. 164. It has been decided in that state that evidence of the pecuniary circumstances of one of two joint defendants must be rejected, because its tendency, if received, would be to increase the damages as against the defendant, whose means were less, and so to work injustice. Toledo &c. R. R. Co. v. Smith 57 Ill. 517. This difficulty in the application of the rule ought to give very satisfactory evidence of its unsoundness; for the rule, if founded in justice and reason, ought to be, and would be, as applicable in one case as another. The plaintiff's injury is no greater and no less be