Pierson v. Boyd. alone, would be unsatisfactory, and perhaps insufficient. But Boyd admits receipt of the notice, and does not deny that he received it on the day it was served. The testimony of Tyler and Boyd's admission, together furnish sufficient primâ facie evidence of due service of notice of protest on Boyd: and that he received on the day on which it might, legally, have been served. Whether Boyd, as between Crum and himself, is to be regarded as first or second endorser, is of no consequence in this suit. He is an endorser who has been regularly charged as such, and the plaintiffs are holders for value. One who endorses for the general accommodation of the maker, or payee of a note, is liable to a holder for a value, taking it before maturity, though the holder knew when the note was transferred to him that the endorsement was an accommodation one. The fact that the plaintiffs were indebted to Crum at the time they bought the note in the sum of $5,000, and that they were indebted to him when this action was tried, is neither a legal nor an equitable defence to Boyd. It does not appear that such indebtedness was due when this action was commenced, so that it could have been set off by Crum, if he had been sued. And no such defence is set up in Boyd's answer. The nearest approach to such a defence is found in the allegations that the note was never negotiated to the plaintiffs, that they paid Crum no consideration for it, that Crum delivered it to them, to be collected by them for him as his agents. These allegations are disproved by uncontradicted testimony, given by a witness called by Boyd. If, as between Boyd and Crum, the former is to be treated as last endorser, and therefore entitled, on paying the note, to maintain an action against Crum, there is no allegation of his being unable to pay it, or of there being the slightest risk of Boyd's ability to collect it from him. All questions as to the effect of writing the guaranty on the note, over the name of Boyd, having been expressly waived by him on the argument, it is unnecessary to consider them. The motion by Boyd, for a new trial, should be denied. EMMET, J., concurred. Motion for a new trial denied. Judgment for plaintiff, with costs. Rising v. Dodge. WILLIAM C. RISING V. NEHEMIAH DODGE. No action can be maintained by a father to recover damages for the removal of his infant child so as to prevent the production of the body of the child upon a habeas corpus, when it appears the father had not an absolute right to the custody of the child, and that the child was incapable of rendering any services of value. If the conduct of the defendant, in the removal of the child, amounted to a violation of the provisions of the R. Stat. (2 R. S., p. 572) he is liable to be prosecuted for a misdemeanor, but is not liable to a civil action unless special damage is shown. No such action is given by the statute. Upon these grounds judgment for the defendants. (Before DUER and BOSWORTH, J.J.) February 16; February 26, 1853.* THIS action was brought by the plaintiff, as father of Wm. C. Rising, Jr., a minor, between 7 and 8 years of age, to recover of the defendant damages alleged to have been sustained, being the costs and expenses of proceedings by Habeas Corpus to obtain possession of the child, and also the value of the services of the child, whom, as the complaint alleged, the defendant removed from the state to prevent his being brought up on the Habeas Corpus, and delivered to his father, the plaintiff. The plaintiff married a daughter of defendant. About three years before this action was commenced the plaintiff and his wife separated. She continued, with her two children, from that time to live in the city of New York, with her father, the defendant. The plaintiff went south, and was residing in Charleston, S. C., when this action was brought. He came to this state, and demanded of defendant the boy. The boy's mother being then in Connecticut, the defendant sent the boy to her. The plaintiff procured a Habeas Corpus to be served on the defendant, requiring him to produce the body of the boy. The defendant made return that the boy was not in his custody, nor under his control, and the writ was dismissed. The plaintiff then brought this action to recover moneys fruitlessly expended in and about prosecuting the writ of Habeas * Vide The People v. Rose Parker, 1 Duer 709. Rising v. Dodge. Corpus, alleging that the defendant, with intent to elude the service of said writ, and to avoid the effect thereof, transferred the custody of the child, and removed him out of the state. Plaintiff also sought to recover for loss of the service of his child. Mr. Justice Campbell, before whom the action was tried, "decided that the plaintiff could not recover under that part of his complaint which related to a deprivation of the Habeas Corpus and his expenses thereon, but only on that part relating to the abduction of the child and the loss of services; to which decision the plaintiff's counsel excepted. The defendant excepted to any action upon the complaint after the judge had decided that the statute gave no cause of action on the Habeas Corpus, unless the complaint was amended, which exception was noted. "The defendant called as a witness, "Lucy Leadbeater, who being duly sworn, says: I am the daughter of the defendant; plaintiff is my brother-in-law; the plaintiff and his wife separated about three years since, and she, with her children, has lived with my father since, and the plaintiff and his wife since the separation have had no intercourse together. "The judge charged the jury that the plaintiff could not recover for any expenses incurred by him in obtaining a Habeas Corpus, &c., that if the defendant did not obey the writ as claimed the statute gave a remedy by indictment, and that the plaintiff could not recover in this action damages from the defendant for such disobeying, even if proved guilty. "To which portion of the charge the counsel for the plaintiff excepted. The judge further charged, that if the plaintiff was entitled to recover at all, it would be only for the services of the child. And that it appeared that up to the time of the demand made, the child and its mother had lived at the defendant's house, the child being in the custody of its mother; and that the defendant, on the demand being made of him, had at once placed it again in the mother's custody, from whom he had received it; the plaintiff had not proved the value of any services, nor shown that the child was capable of rendering any services of value; still, if the child was capable of rendering any services, the plaintiff may be entitled to recover for such Rising v. Dodge. services intermediate the demand and the restitution of the child to its mother. The judge declined giving any further instructions to the jury as to whether they should find only nominal damages, or whether they might find exemplary damages. To all which the counsel for the plaintiff excepted. And the jury found a verdict for the defendant; and in pursuance of provisions of § 265 of the code, the judge ordered this case to be first heard at a general term." Mr. A. Dyett, for plaintiff, insisted— I. The judge erred in deciding at the trial, and charging the jury subsequently, that the plaintiff could not recover damages for the wrongful acts of the defendant, whereby he had been deprived of the benefit of the Habeas Corpus issued for the purpose of getting the custody of his child, nor for his expenses thereon, and in searching for the child. 1. The plaintiff, the father of the child, by the law of nature and of man, is the legal custodian, and has a paramount right to the custody of his child. (1 Black Com. 478-9; id. 408, 418, 420, 422, 424, 425.) 2. The mother's right is only that of affection and duty from the child; and is subordinate to that of the father. (1 Black Com. 453, 478-9, 408, 418; Barry v. Mercein, 3d Hill, 407; People v. Pillow, 1 Sandf. R. 672.) 3. The father had no right to delegate his right or his child's custody to another; and if he had, the instant he demanded that custody he revoked that authority, and had, eo instanti, an absolute right to the custody of the child against all the world. (Barry v. Mercein, supra, 5th East, 221; 10 Vesey, jun., 58-9.) 4. The mother, if ever she have the right to the custody, cannot delegate that right to another, semble People v. Mercein, 3d Hill, 410, 411; much less can a right received from the wife be set up in hostility to the father's right by a stranger. 5. It was therefore the duty of the defendant, on demand, to deliver the child to the father (a subsequent delivery to the mother is no excuse); and the refusal to do so subjects him to a special action for all the consequences thereof. 6. The defendant having parted with the custody of the child, and taken the child to Connecticut, as alleged, the act was wrongful at common Rising v. Dodge. law; and the defendant having by that wrongful act deprived the plaintiff of a legal right, to wit, the right to the writ of Habeas Corpus, is answerable for the expenses of the Habeas Corpus, and the expenses of endeavoring to regain its custody, which are claimed as special damages in the complaint. 7. Although a man is not always liable to another for the consequences of his acts, it is only so when the act producing the injury was not wrongful per se, but it was the exercise of a right by the defendant; in such case only is it damnum absque inju riâ. (Radcliffe Ex. v. Mayor, &c., 4 Comstock, 200.) Nor is it necessary that malice should exist; it is sufficient if there be a wrong and an injury. (Foster v. Charles, 4th M. & P. 615, 741; 6 Bing. 396; 7 Bing. 105; Pasley v. Freeman, 3 T. R. 51; Comyn's Dig., "Action upon the Case," A., p. 278; Rol. 109, 1, 15.) 8. The action is not brought upon the statute, the act of the defendant was a wrong, even if the statute had not made it an offence, and even if it were not a wrong without the statute; the rule that an offence, malum prohibitum, is confined in its punishment to the statute creating it, does not forbid an action for the consequences of the illegal act, where actual damage is proved; it only forbids an action for damages in cases where a penalty is given eo nomine by the statute to the party aggrieved, in which cases the penalty alone can be recovered. (See cases cited under 7th and 9th subd., Sadmore v. Smith, 13 John. R. 322, and cases there cited show this to be the rule. 1 Kent Comm., 7th ed., 517, et in notis; 2 R. S. 562, § 76; Cook v. Dorby, 4 Munf. 444.) The act of the defendant was pleaded according to the wording of the statute, only to show that in addition to the wrong itself at common law, it was also made an offence by statute. Enough is stated in the complaint without the statute; it is alleged that he took, &c., the child out of the state, &c., which is entirely dehors the statute. (Even at common law it is a misdemeanor to take a child from its father's possession; Andrews, 312.) We had a perfect right of action, had the statute never been passed. (Sedgwick on Damages, 20 to 34; Chamberlaine v. Chester R. Co., 1 Exch. K. 870; Kaine's Prin. Eq. 181-2, 6 Hill, 466; Hallet v. Novion, 4 Johns R. 290.) 10. The expenses of the Habeas Corpus, and other expenses searching for |