4 Barb. 225 | N.Y. Sup. Ct. | 1848
The circuit judge was clearly right in refusing to charge the jury as requested by the plaintiff’s counsel. The proposition assumes two facts, one of which had been proved and the other had not. The defendant had taken the plaintiff’s wife away after he had received the plaintiff’s notice, but instead of keeping her three days, he had himself brought her back the next day. But, I- think also that, if the facts had been as assumed by the plaintiff’s counsel, the judge would still have been right in refusing to charge that such a state of facts would, as a matter of course, render the defendant liable for harboring the plaintiff’s wife.
In an action like this, the material point of inquiry is the intent with which the defendant has acted. The bare fact that the defendant allowed the plaintiff’s wife to ride in his wagon, or that he did not shut his door upon her when she came to his
In Philip v. Squire, (Peake's N. P. C 82,) Lord Kenyon said that the ground of this action was that the defendant retained the plaintiff’s wife against the inclination of her husband, whose behavior he knew7 to be proper, or from selfish and criminal motives. In that case the wife represented herself as having been ill used and turned out of doors by her husband. The defendant, at her request, received her into his house and suffered her to remain there, notwithstanding a notice from the husband not to harbor her. Lord Kenyon held that if the defendant did this from motives of humanity, the action could not be sustained. In this case the plaintiff’s wife, alleging that she was unable to unlock the door of her own house, requested the defendant to allow her to ride home with him. He had a right to comply with this request if he was actuated by proper motives. Notwithstanding the notice not to harbor her, he was not bound to exclude her from his house. Unless the defendant had directly or indirectly attempted to influence or persuade her to leave her husband, or, having left him, not to return to him, he has done nothing to make him liable in an action either for enticing away or harboring the plaintiff’s wife. (Hutcheson v. Peck, 5 John. 196. Turner v. Estes, 3 Mass. Rep. 317.)
New trial denied.