
    William C. Rising v. Nehemiah Dodge.
    (Before Duer and Bosworth, J.J.)
    February 16;
    February 26, 1853.
    
    Ho 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 B. Stat. (2 R. S., p. 57 2) he is liable to be prosecuted for a misdemeanor, but is not liable to a civil action unless special damage is shown. Ho such action is given by the statute.
    Upon these grounds judgment for the defendants.
    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 ngt 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 
      
      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 yearn 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 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 be 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 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 wrongfulyw se, but it was the exercise of a right by the defendant; in such case only is it damnum absque imyvr ria. (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 hot 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, mabum 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 norrwne 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 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. (Wœrt 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. Ho 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. 
      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 Carpus. 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 bé 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 sernitiram, 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.)
    
      
       Vide The People v. Rose Parker, 1 Duer 709.
    
   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 rightto 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.

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. Ho 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 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 Corjytis, 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.  