Robinson v. English

The opinion of the court was delivered by Thompson, J. The notice to the defendant to tender amends, is sufficient. It need not possess the technical formality of a declaration, provided it is explicit enough to indicate the injury [327] complained of, and sought to be redressed: 7 W. & S. 363. This notice comes up to such a requirement, and we need not farther remark upon it. Nor are we able to discover any justifying complaint in any of the other assignments of error, save that of the 6th. The narr. was not strictly formal, but it contains a substantial cause of action, notwithstanding; and the precise matter complained of, would at once have been amendable, if objected to. It will be treated here, as if it had been amended, after a trial on the merits. We now proceed to notice the 6th assignment of error. The testimony in the case raised the question, whether the plaintiff had not, a considerable time previously to the marriage complained of, relinquished his paternal control over his son. This being claimed as a ground of defence, the learned judge charged the jury, that “ if the father had totally abandoned his son, and by reason of moral degradation was unfit to take eare of him,” then it would be a defence. This, although not precisely in the order of the words used, was in fact the instruction. Was there error in it? It has been decided, that where a father had turned “ his daughter out on the world, to shift for herself, he thereby relinquished his parental rights in relation to her person, and absolved her from filial allegiance Stansbury v. Bertron, 7 W. & S. 363. And he was not allowed to recover the penalty of the law for joining her in marriage while in her minority, without his consent, and without the publication of bans. The same rule of law is applicable to a son, as well as a daughter. Indeed, it is such minoi’S as are under the “ tuition of their parents” — meaning, of course, the control of parents — that the Act of 1729 expressly applies to. It matters not, what motive compels a father of a minor to relinquish his parental control, provided it be relinquished. This ought to be clearly shown; but, when it is so shown, the law will not tolerate the re-assertion of such rights, merely for the purpose of punishing those who have acted on the faith of a precedent relinquishment. Here, the minor testified, that his father had long before turned him out upon the world, and. told him to “shirk” for himself; and that he had been doing for himself ever ■ since. Another witness also testified, that the minor “made his own bargains, and went at his own pleasure and control;” and that the plaintiff refused to exercise his authority to send him to school, although the witness offered to pay for his tuition, declaring that he would not; and “ that if they” (his sons) “ took care jof themselves, it was all he cared for.” This was direct proof of dereliction of authority and control; and from it, -a jury might, if they believed it, have found the fact to be so; in which event, the plaintiff would not have been entitled to recover. But from the manner in which this testimony was put to the jury, they could not find the fact of relinquishment, unless they found ano [328] ther; and that was, that the plaintiff, by reason of moral degradation, was unfit to take care of the minor. Now this was no element in the question of relinquishment. The most thrifty and wealthy and respectable man in the community, might relinquish control over his child, so as to destroy his right of recovery, where the opposite relation was necessary to a recovery. But the application of the principle laid down by the court, would, in another direction, be unjust and mischievous. It would not do to hold, that because a jury might have sufficient evidence before them to find that a man was, by “ reason of moral degradation, unfit to control” his child, that therefore, he had parted with his authority, and a magistrate or clergyman might, with impunity, join him or her in marriage during minority, without the father’s consent. This would be the result of holding the charge to be sound in this case. It is a question of relinquishment of parental authority: if this can be sufficiently shown, it will be an effectual defence. And being proved, I think it is not to be controverted by evidence of an occasional visit to the parental abode, but it is to be met by showing a resumption of the parental rights by satisfactory proof of it. This judgment is reversed, and a venire facias ele novo awarded.