
    Elizabeth Vaughan vs. John Rhodes.
    Trespass vi et armis, is a proper remedy by a parent for the talcing away his child.
    The presumption shouhtbe always in favor of the legitimacy of a child, and he should not be bastardized by mere rumor.
    THIS was an action of trespass, vi et armis, brought by the plaintiff against the defendant for taking away her daughter, a girl about twelve or thirteen years old, by which she lost her services, &c. It appeared, in evidence, that the plaintiff was a woman of ill fame and had gone off and been absent from the state about a year ; this' daua;hter was left in the family of the son of a man with whom the mother cohabited and with whom she had gone away. The defendant wanting a nurse for his children, and hearing of the situation of this little girl, applied to her for that purpose. She very readily consented and went and staid •in his family until her mother returned. Several of the witnesses said that they understood that she was an illegitimate child, though they did not know the fact, because they were not acquainted with her mother. In early life, a witness said that he had heard that she was married to Vaughan, whose name she had taken and which name she had given to her daughter, but he never knew Vaughan ; neither did he know this woman at that time. There was a great deal of other evidence given which it is unnecessary to report, as the court considered it of such a nature as to be exclusively proper for the consideration, of the jury, and furnishing no ground on which the verdict could bo set aside.
    The jury found a verdict for the plaintiff, and a motion was now made for a new trial on the following grounds :
    1st. Because the plaintiff ought to have brought an action on the case and not trespass vi et armis.
    
    2nd. Because, being an illegitimate child, the mother-.could not maintain an action for the loss of her services.
   Mr. Justice Nott

delivered the opinion of the court:

Although it is the misfortune of the subject of this action to have a very unnatural parent; one who appears to have very little regard to her education or morals, yet if she is entitled to an action at all, the form must be the same as in other cases of a similar nature. Judge Reive, in his Treaties on Domestic Relations, asks the question, can a father have an action of trespass vi et armis, for taking away his child?” In England, he says, it has long been settled that he may have an action of trespass id et armis, for taking away the heir ; but that he has not found any case of an action for taking away by force a younger child. Yet he says, upon the principles of tjip common law, it is clear tba't in these states, an action will lie for taking away any child, for that all are heirs. But that he sees no reason why, in England, the father may not maintain his action against the person who takes away any child; for that he is bound to perform certain duties towards his children which he cannot perform if they be taken from him ; and to enable him to perform these duties he is entitled to the custody of his.children, and if this right should be violated by force, he has no hesitation in saying he can maintain this action : And I recollect an early decision of this court where it was held that a parent had such an interest in the support, education and general welfare of his child, that he could maintain an action in this form against any person who should deprive him of it. Indeed, it appears to be the most appropriate action. It is an immediate injury to the parent. The child is not able to consent, and the law therefore implies force as the taking is unlawful.

Herndon, for the motion.

Thompson, contra.

The second ground would probably have availed the defendant, if the fact on which he relies had been established. But none of the witnesses had known this wo-, man for many years. They know nothing of the illegitimacy of her child, except from neighborhood report. And it was also reported that she had been married.- On conflicting evidence of that sort, I think it was the most charitable, as well as most consistent with the principles of law, to presume- in favor of legitimacy. A person ought not to be bastardized by mere rumour which may be unsupported by any foundation. I think the verdict of the jury on this point was consistent with the law and the evidence, and ought to be conclusive of the fact.

The motion therefore is refused.

Justices Johnson, Huger, Gantt, Richardson and Oolcoch, concurred.  