Sargent v. Mathewson

38 N.H. 54 | N.H. | 1859

Periey, C. J.

The following facts are found by the case: The plaintiff’s son, being about fourteen years of age, was in the charge and service of his father, and ran away from him. The defendant, knowing this, allowed the lad to remain with him, to board with him, and to work for him as he pleased. About these facts there was no dispute; and while the defendant thus kept and sheltered the boy, the plaintiff, his father, was deprived of his services and custody. The fact that the defendant afforded shelter to the boy, is found by the case. The ordinary effect of what the defendant did would be to assist and encourage the child in his illegal and undutiful course. But there was some contradiction in the evidence as to the influence which the defendant exercised over the boy; and perhaps the jury would have been at liberty to find that the defendant allowed the boy to remain with him from mere motives of kindness and charity, or in order that he might restore him to his father, or give his father an opportunity to recover him; and in that case, according to the instructions of the court, the defendant would not have been liable. The court left the question of intent— the quo animo — to the jury, and instructed them that if the protection and shelter which the defendant gave the boy were afforded with the view or intent of enabling or encouraging him to keep away from his father, or with the knowledge that it aided or encouraged him to keep away from his father, it would be a harboring, for which the defendant would be liable. The case finds facts from which it appears that the defendant actually harbored the plaintiff’s minor son, and thus assisted him in remaining away from his father. The question of intent and motive the court left to the jury, and of this we think the defendant has no reason to complain.

No question is made that the father, unless he has in some way forfeited or relinquished the right, is entitled to the services and custody of his minor child, and may recover damages against the party who deprives him of this right, by seducing away or harboring the child. The defendant argues that in this case the father relinquished and abandoned this right, or at least consented to the defendant’s harboring the boy, because he said he did not intend to take him away unless he was willing to go. We are not able to view the case in that light. The father went for his child; he desired to see the child, and negotiated with the defendant for an opportunity to converse with him; he said he should not take the boy back unless he was willing to go. This has no tendency to show that the boy was not unlawfully harbored by the defendant, and the plaintiff deprived by it of the services of his child; for the complaint against the defendant is not that he detained the plaintiff’s son from him by force, but that he encouraged and aided the son to persevere in a disobe- • dient and undutiful disposition, which prevented him from voluntarily returning to his father’s house. The point of the plaintiff’s grievance is, that by harboring the child and encouraging him in remaining away, he made him unwilling to return and live with his father.

Judgment on the verdict.