90 Me. 308 | Me. | 1897
This is an action on the case for enticing the plaintiff’s daughter to leave their home and service. The case
Tbe proposed amendment of tbe writ by inserting the ad damnum, which had been inadvertently omitted, was clearly allowable. Rev. Stat. Ch. 82, § 10. In McLellan v. Crofton, 6 Maine, 307, such an amendment was allowed after verdict, and Mellen, C. J., said “ it would be a matter of regret if not reproach to our laws and to tbe administration of them if such a motion could not be sustained. We entertain no doubt on the point.” So in Cragin v. Warfield, 13 Met. 215, a similar amendment was held allowable, tbe case of McLellan v. Crofton, supra, being cited as authority. Tbe ruling of tbe presiding judge upon this point was undoubtedly correct.
Tbe learned counsel for the defendant, however, interposes tbe further objection, in support of bis exceptions, that there was no compliance with tbe statute requiring tbe payment of costs as the condition of an amendment when the declaration is adjudged defective on demurrer. R. S., Cb. 82, § 25. But tbe defendant took exceptions to tbe ruling of tbe court that tbe amendment was allowable, and it has not been determined, and will not be until this opinion is announced, that that ruling was correct. Pending the decision of that question, the amendment wbicb may have been filed, and wbicb is declared to have been “ allowed,” could not legally become a part of tbe writ and declaration. Tbe statute says “ tbe plaintiff may amend upon tbe payment of costs from tbe time when tbe demurrer was filed.” But in contemplation of law, tbe plaintiffs in this case have not yet amended tbeir writ. They
In support of the second general demurrer to the declaration as amended, the defendant insists that the declaration should still be adjudged defective, first because there is no definite averment of the time when, as the plaintiffs allege, the “defendant enticed and persuaded their said daughter to disobey her parents and remain with said defendant;” second, because the service of the daughter was not due to the plaintiffs jointly, but to the father alone; and finally because, if it was the intention of the pleader to charge that the defendant enticed and persuaded the plaintiffs’ daughter and servant away from their service and employment, he has failed to set out in unambiguous terms, and in a precise and orderly manner, the facts requisite to constitute such a cause of action.
It is undoubtedly a general rule of pleading in personal actions that every traversable fact must be alleged to have taken place on some particular day. Cole v. Babcock, 78 Maine, 41. In the case at bar it is definitely alleged that the plaintiffs moved from the
It is also the opinion of the court that the parents of the minor were properly joined as plaintiffs in the action. It is provided by section 1, of Chap. 43 of the public laws of 1895, that “fathers and mothers shall jointly have the care and custody of the person of their minor children.” The act of “enticing and persuading” a child from the joint custody of its parents, is therefore an infringement of a joint right.
Tor the apparent purpose of giving a connected history of the relations of the parties to the minor in question, the pleader introduced several immaterial averments of what transpired between them after March 1895; but the principal allegation that “said defendant enticed and persuaded their said daughter to disobey her parents, and remain with said defendant, using every means in her power to so entice and persuade,” construed in the light of the circumstances alleged to have existed at the time, would seem to state a cause of action. In Cooley on Torts (2d Ed.) page 270, the author says: “ Whatever induces the child to leave the parent, or, after leaving to remain away from him, may in law constitute enticement; but to receive and shelter a child from parental abuse, may sometimes be a moral duty, and therefore justifiable. In New Hampshire it has been said that if one give protection and shelter to a child, with a view or intent of enabling or encouraging him to keep away from his father, .... this would be wrongful and actionable conduct;” citing Sargent v.
Exceptions overruled.