Rising v. Dodge.

the child, were recoverable as special damages, consequent upon the abduction of the plaintiff's child, in addition to the loss of his services and companionship, and the matter in the complaint on this latter subject was necessarily set out to show this special damage. (Wort v. Jenkins, 14 Johns. R. 352; Ford v. Monroe, 20 Wend. 210; Whitney v. Hitchcock, 4 Denio, 63; Cowden v. Wright, 24 Wend. 429.) In the two last cases no special damages were proved, and the act was a tresspass for which the child could recover, which is not the case here.

II. The judge erred in all that part of the charge after the word "guilty." The charge was calculated to deprive the jury of any guide whatever in assessing the damages. 1. No proof was necessary of any acts of service, or the child's capacity, nor their value. The slightest acts of service were sufficient, of which the child could legally be presumed to be capable; the law does not measure the value of cheerful services, which are prompted by affection, in the same scale as those which are sullenly doled out, proportioned to the expected compensation; as examples of this, are the familiar cases of seduction and criminal conversation, in the latter of which the loss of the consortium alone is sufficient; and we expressly aver we lost the "society" of the child. The principle is the same in all the cases; the act of the defendant was a wilful violation of the plaintiff's rights, and justly entitled the plaintiff to exemplary damages. (21 Wend. 79. 4 Comstock, 75. Sedgwick on Damages, 20 to 34, 38, 47, 65, 79, 81; cases in note to p. 90; 453 to 467, 563, et seq. Bennett v. Lockwood, 20 Wend. 223. Martinez v. Grueber, 3 Scott N. R. 386.) 2. As before shown, the delivery to the mother was no excuse, and plaintiff was entitled to damages up to the time of trial, if not till the child's majority. See cases, supra.

III. It is no objection to this case that it is one of the first impression; if it can be sustained on well established principles, it is sufficient. (Ashby v. White, 1 Bro. Cases Parl. 62. Aldridge v. Stuyvesant, 1 Hall R., p. 215. Dyett v. Pendleton, 8 Cow. 277. Chapman v. Peckergill, 2 Wills. 146. Winsmore v. Greenough, Willes. 577. Pasley v. Freeman, 3 T. R. 51. Southword v. Van Pelt, 3 Barb. S. C. R. 347.

Rising v. Dodge.

Drew v. Coulton, 1 East, 563 a. Milward v. Sargent, 1 East 577 n.)

IV. The verdict was against evidence, and wrong in any event; the plaintiff was entitled to nominal damages at any rate.

A. J. Vanderpoel, for defendant, made and argued the following points.

I. The court was correct in rejecting the demands connected with the Habeas Corpus. 1. The statute [2 R. S. 572, orig. paging, § 76] gave a remedy by indictment, and there was no action at common law for eluding a writ of habeas corpus, although one for false return exists. 2. § 76 controls (if any), because writ was served 10th Sept., while child left respondent 9th Sept. 3. Where no remedy existed at common law, the statute remedy is alone to be pursued. (Dwarris on Statutes, 678, 679. Almy v. Harris, 5 John. 175. Stafford v. Ingersoll, 3 Hill. 38.) 4. Whenever an action has been allowed, concurrent with the pursuit of the statute remedy, it was permitted upon the principle that the statute gave an incomplete remedy. But in this case, the portion of the action allowed by the court per quod amisit servitium, was complete in its remedy.

II. Assuming that there exists an accumulative remedy upon the Habeas Corpus, the writ was void. Application for the writ was made to a justice of the Common Pleas of this county, when prisoner was detained, if at all, in Newtown, Queens Co.; and this fact appellant knew before applying for the writ. The officer to whom application is made must have jurisdiction of a prisoner in his county excepting, &c., &c. (see 2 R. S. 564, orig. paging; Notes on Hab. Corp., 4 Hill. 652), and appellant's writ was not within the statute exception.

III. The court left to the jury to say whether the child was capable of rendering services, and if so, their value. The jury found the child was incapable of rendering services.

IV. The charge that loss of service was the gist of the action, and that the services must be proven, is sustained by the reason of the law and the cases. (Reeves' Domestic Relations, 291; 2 Kent, 195. Leading case of Hall v. Hollander, 4 B. & C. 660. Weedon v. Timbrel, 5 T. R. 357.)

Rising v. Dodge.

BOSWORTH, J.-The jury found that the child was incapable of rendering service: So far as the right to maintain the action depends upon proof of special damage resulting from the loss of service of the child, the existence of the right is disproved by the verdict of the jury.

The father has no property in the child, and no action has accrued from an unauthorized removal of his property.

Prima facie he has a right to the legal custody of the child, and where no special reasons are shown to induce a court to act otherwise, it will award to him the custody and require the child to be restored to him. (18 Wend. 637. id. 17. 3d Hill 405.) But the court will not under all circumstances interfere, and take a child, though under fourteen years of age, from the possession of a third person, and deliver it over to the father against the will of the child. If the infant is competent to declare an election, the officer before whom it is brought on Habeas Corpus, will allow it to go with that one of the parents with whom it prefers to reside. If the infant be too young to form a judgment, the court, in some cases, will exercise its judgment for the infant, so far at least as to refuse to make an order that it be delivered to the party seeking to obtain a change of custody. (2 Kent's Com. 194; 4 J. Ch. R. 80.)

The Revised Statutes provide that when any husband and wife shall live in a state of separation without being divorced, and shall have any minor child of the marriage, the wife, if an inhabitant of this state, may apply to the Supreme Court for a Habeas Corpus, to have such minor child brought before it, and on the return of the writ, and on due consideration, may award the charge and custody of the child to the mother for such time, under such regulations and restrictions, and with such provisions and directions, as the case may require. (2 R. S. 194, § 1, 2.)

An officer before whom such a child should be brought on Habeas Corpus, might properly refuse to make an order requiriug the mother to deliver it to the father, on a state of facts being shown which might induce the Supreme Court to take it from the father and award it to the charge and custody of the mother.

Rising v. Dodge.

In this case the husband and wife had been living separate and undivorced for over three years prior to the issuing of the Habeas Corpus. His wife and her two children went to reside with her father, the defendant. The plaintiff went to South Carolina and continued to reside there. For aught that appears in the case, the support and maintenance of herself and children had been devolved upon the defendant and borne by him. The wife and children remained in this state. The defendant left it and remained out of it.

For aught that affirmatively appears, the father was a fit person to have charge of the child. And for aught that appears the mother was equally fitted for the trust, and had discharged its duties, with a wise regard to her son's present and future happiness. Is it clear that on these facts, the child would have been taken from the mother and delivered to the father? Is there not some evidence of abandonment, not in the offensive sense of the term, but practically, of all care over and provision for him?

If the judge issuing the Habeas Corpus, might in the proper exercise of his discretion have refused to interfere, the plaintiff failed to show any strict right to the actual custody, which has been interfered with by the defendant.

The defendant was not bound to bring the child to the city on the demand of the plaintiff, nor to retain it in his custody. The most that could be required of him, under any circumstances, was non-interference. He made no claim to the custody, he merely permitted the child to be at his house.

The only act of which complaint can be made, is his taking of the child to Connecticut and leaving it with the child's mother, with whom the plaintiff left it on quitting the

state.

If such an act falls within the prohibition contained in either the 61st or 62nd section of 2 R. S. 572, it is enough to say, that the statute which creates the offence, prescribes the punishment. No civil action lies to recover the expenses incurred in issuing and attempting to execute the Habeas Corpus, where no special damage is shown to have resulted from the removal.

And as the jury found the child was incapable of rendering

Harrison v. Wood.

any service, the new trial should not be granted, in this particular case, for the reason that the facts appearing on the trial present a case, on which the judge issuing the Habeas Corpus, might properly have refused to interfere, and change the custody of the child. The motion for a new trial must be denied, and a judgment entered for the defendant.

HARRISON V. WOOD.

Judgment for the defendant upon a dismissal of the complaint, in an action at law, is no bar to a subsequent action by the plaintiff for the same cause. (Before DUER, Campbell, and Bosworth, J.J.)

February, 18; February, 26.

APPEAL from a judgment at special term in favor of the plaintiff.

The action was to recover damages for an assault and battery, and was tried before the Chief Justice and a jury in October, 1852.

The answer, after denying the assault and battery, set up as a defence, that the plaintiff in May, 1850, had commenced an action in the Supreme Court for the identical cause of action set. forth in the complaint; that an issue of fact was joined thereon, and the same was brought to trial, and a judgment rendered against the plaintiff in favor of the defendant. The record of this judgment was produced upon the trial, and it appearing that the judgment was for the dismissal of the complaint by default, the Chief Justice overruled the defence. Upon the testimony the jury found a verdict in favor of the plaintiff for $240. The counsel for the defendant having excepted to the ruling of the Chief Justice, the only question now was whether the exception was well taken.

E. Sandford, for the defendant, insisted that—

The judgment for the defendant in the Supreme Court barred