Emery v. Gowen

Weston J.

at the succeeding term in Cumberland, delivered the opinion of the court, as follows:

The foundation of this action is the supposed loss of service to the father, occasioned by the seduction. But in the estimation of damages, the wounded honor of his family and the laceration of his parental feelings are principally regarded. When the daughter is of age, it must appear that she resided in her father's family; and some acts of service, however slight, must be proved, in order to maintain the action. If the child be under twenty-one, no acts of service need be proved.

In the case of Dean v. Peel 5 East 45, the action was not maintained ; the child, though a minor, not residing in her father’s family; but the case appears to have turned rather upon the fact that she had no intention of returning, than upon the circumstances of her happening to reside elsewhere. Spencer J. in delivering the opinion of the court, in Martin v. Payne 9 Johns, 387, says, that he considers this case of Dean v. Peel as the only-one, which has ever denied the right of the father to maintain an action for debauching his daughter, while under age ; and he deems it a departure from all former decisions on this subject-And he clearly held, upon a view of the authorities, that where the daughter is a minor, though she resides out of the family, if the father has not divested himself of the power to reclaim her services, she remains his servant de jure, though not defacto, and the action is maintainable. And we are satisfied upon examination, that the weight of authority is in favor of this position.

The decision of this cause will depend then upon the question, whether the father, at the time of the seduction, had so transferred his parental rights, as to have no control over his daughter. If he had not, she being a minor, although not actually residing at the time in the family, the action is maintainable.

It is contended that in this case, the father having by indenture assigned the services of his daughter, with her consent, when she was fifteen or sixteen years of age, to her uncle, until she should be twenty-one, his control over her had ceased. We are very clear that this was not a binding out under the statute; it extending beyond the period of eighteen years ; and that therefore neither of the parties could be entitled to the special remedies therein provided. If the father refused to suffer the child to serve, or the child had left his service without his permission and against his will, the uncle had no means of. getting possession of the person of the child; but his only remedy would be a suit at law against the father, upon the contract.

The statute does not however make void indentures, or assignments of the services of a child, not executed in the manner prescribed. They may be good at common law, during minority; and so they were held td be, by Parsons C. J. in the case of Day v. Everett 7 Mass. 145. If in pursuance of the indentures, although they did not conform to the statute, the daughter had gone into the service of the uncle, and had continued with him up to the period of the seduction; although the uncle, standing in loco parentis, might have maintained this action, the father could not. But it appears that the uncle, being conscious that he had treated ¡his niece harshly and improperly, by acts of unjustifiable violence, and conceiving that the indentures were thereby broken, permitted her to leave him, after she had continued with him only six or eight weehs, and refused to receive her again; and that in point of fact she has never resided with him since. And although the uncle still retained the indentures in his possession, yet he told the father that he considered them at an end, and thereupon he consented to receive his daughter back again, and she has since been under his direction; working-at different places by his consent; and being, by his permission, at her grandfather’s, at the time of the seduction.

But it is insisted that the indentures must be considered as still in force in contemplation of law, having been executed under seal; and that they could not therefore be legally discharged by parol. After what had taken place by mutual consent between the parties, it might be difficult for either party to maintain an action upon the covenants; and if in strict law, and upon technical principles, it could be done, nothing more than nominal damages could be recovered. If the parties regarded the contract as at end, and waived all remedies under it, we are not aware upon what ground third persons can insist upon its existence. The father had the control of his daughter in fact; and no person certainly, except the uncle, could question his right thereto; which he is so far from doing, that he expressly declined receiving her, and had given up for many years all interference with her. But suppose the indentures still in force, and that the father not only had a right to insist, but did insist, upon the performance of the covenants contained in the indentures on the part of the uncle ; he could only recover damages for the breach of them; having no legal means of enforcing specific performance. In the mean time, the uncle refusing to receive and protect his niece, and to fulfil towards her the parental duties, she is not to remain a vagabond in the street, and the father turned over to his contract; but the parental duties again necessarily devolve upon him, and, as incident thereto, and to enable him to discharge them, he is again reinstated in his parental rights. In every view which we can take of this case it appears to us that, at the time of the seduction, the plaintiff did control, and had a right to control, the person of his daughter, and that he may therefore legally maintain this action. The exceptions are accordingly sustained; the nonsuit is set aside; and the action is to stand for trial, at the bar of this court.