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Wherever this action is permitted at the common law, it is assumed that the plaintiff is not in fault. If he was assenting to the seduction, or connived at it, or without objection permitted such improper action on the part of the defendant as might naturally, and in fact did, lead to it, these facts may be pleaded in bar of a recovery.'
Adopted Children. A conspicuous feature of some of the systems of law is the facility with which they permit the formation of family relations with which ties of blood have no necessary connection. This is accompanied by some formal act of adoption, and the child adopted comes into the family with all the rights of a child by birth, and subject to all the same duties and obligations. It has been said on a preceding page' that the common law knows nothing of an adoption with such consequences. Nevertheless, if one is received into the family by adoption, the remedies in respect to third persons will be the same, while the relation exists, that they would be in the case of a child by nature.
Wrongs to a Child. For an injury suffered by the child in that relation no action will lie at the common law. The obligation of the parent to support him is only enforced by proceedings on behalf of the public, and not by suit in the name of or
on behalf of the child. And no action will lie against *236] a third *person for depriving a child of his source of sup
port by means of an injury to the parent. By statute, however,a remedy is given in a few cases which will be considered fur
As to the effect of giving a statutory remedy upon the common law right, see Cross o. Goodman, 20 Up. Can., Q. B. 242; Watson 0. Watson, 49 Mich. 540; Weiber 0. Meyersham, 50 Mich. 602. There must be some false promise. Intercourse is not enough to make seduction where woman sues herself. Baird v. Bochner, 33 N. W. Rep. 694 (Ia.) Where a statute gives a woman a right of action for her seduction, she cannot recover if she is equally guilty with the man. Breon o. Henkle, 14 Oreg. 494. When the seduced woman may sue in her own
name, she may bring an action after as well as before a marriage to a third person. Dowling 0. Crapo, 65 lud. 209.
* Reddie 0. Scoolt, 1 Peake, 316; Seagar 0. Sligerland, 2 Caines, 219; Smith o. Mastin, 15 Wend. 270; Vos. sel o. Cole, 10 Mo. 634. But where a statutory action is allowed to be brought for the woman's benefit, the conduct of the nominal plaintiff, it would seem, should not prejudice her recovery.
2 Ante, p. *42.
ther on. Where the child is injured in his own property or person, redress has no necessary connection with the family rela
Actions by Guardians. The guardian is either of the ward's person, or of his estate, or of both. The guardian of the estate may maintain all proper suits for its protection. The guardian of the ward's person may, in general, maintain suits for personal injuries to the ward when, under corresponding circumstances, the parent might maintain them. It has been held that he may bring suit for the seduction of his female ward, the right being grounded on the legal control he has over the minor's services. But the contrary has been held in Massachusetts, where he has no anch control."
Action for Loss of Marriage. The first of family rights is that of forming the relation of marriage, observing for the purpose such rules as have been prescribed by statute as pre-requisites. The first of these, and in nearly all the States the only indispensable one is that of competent consent. If, after consent once given, one of the parties refuses performance, this, in law, is a mere breach of contract, except where, by means of the contract of marriage, the man has been enabled to accomplish the woman's seduction. The case then becomes a gross fraud, and may be prosecuted as a tort.: There is something in it more than a failure to keep an agreement: there is failure to atone for a great wrong accomplished by means of a confidential relation.
The prevention of a marriage by the interference of a third person, cannot, in general, in itself, be a legal wrong. Thus if one, by solicitations, or by the arts of ridicule or otherwise, shall induce one to break off an existing contract of marriage, no action will lie for it, however contemptible and blamable may be the conduct. But a loss of marriage may be such a special injury as will support an action of slander or libel, where the party was induced to break off the engagement by false and damaging *charges not actionable per se. Here [*237) the action, it is perceived, is for the defamation, and the · Fernsler o. Moyer, 3 W & S. 416. chapter on Frauds in Confidential ? Blanchard o. Ilsley, 120 Mass. 487; Relations. 6. C. 21 Am. Rep. 487.
4 Davis v. Gardiner, 4 Coke, 16; - See the subject referred to in the Parkins o. Scott, 1 H. & C. Cas. 153;
loss of the marriage only the damage flowing from the injury. A contemplated marriage might be prevented by the forcible separation of the parties, or by the imprisonment of one of them; but the wrong in contemplation of law, would consist in the assault, or in the false imprisonment, and not in the loss of marriage. The suit might, therefore lie in favor of one party, and not in favor of the other, if only one was subjected to the illegal force.
It has been held, however, that if one, by the false and malicious assertion to the intended husband that the woman is already his own wife, succeeds in breaking up an intended marriage, the woman may have an action against him for this frand.'
As the age of consent to marriage is usually below the age of full capacity to act on the child's own belialf, there may in some cases be an apparent conflict of rights in respect to forming the relation of marriage. Previous to the child's legal emancipation, the parent is entitled to control his actions, and may rightfully withhold consent from a contemplated marriage, and break it up. But on the other hand, the child, if over the age of consent, may enter into the relation of marriage if he can succeed in doing so, and the relation will be perfectly legal and valid. Here is an apparent conflict of rights; but a real conflict of rights can never exist; for what one has a lawful right to do, another cannot have a lawful right to prevent. The solution of the apparent difficulty is to be found in this: The minor child has not, in strictness of law, when he reaches the age of consent, a right to form the relation of marriage, but only the capacity to do so. The age of consent is merely the age fixed by the law, below whịch a marriage is voidable. The marriage of a
The marriage of a minor above that age, though in strictness of law it should not be formed without parental consent, is nevertheless sustained on grounds of public policy; and parental rights are made to yield to it. The parent may prevent the marriage if he can, but failing in this,
his rights are incidentally abridged by the marriage, [*238] as they *would be if consent were given. The marriage
displaces parental rights instead of creating a conflict.'
Nelson o. Staff, Cro. Jac. 422; Southold 0. Daunston, Cro. Car. 269; Moody o. Baker, 5 Cow. 351.
Shepherd v. Wakeman, 1 Sid. 79. 2 See Hervey v. Moseley, 7 Gray,
479. A father has no claim to the services of a minor daughter after her marriage when that takes place after the age of consent. Such marriage is valid though against parental wishes.
Fraudulent Marriage. A very serions wrong may be accomplished by inducing one, through misrepresentation and fraud, to enter into an illegal marriage. It was decided in an early case, that where a married man, by falsely assuming to be single, succeeded in inducing a woman to marry hini, she might, on discovering the deception, maintain an action against him for the injury." This doctrine has been applied in New York to the case of one from whom his wife had procured a decree of divorce, leaving him incapacitated to marry again during her life time.” The tort in such a case consists in the fraud accomplished, to the woman's serious, and perhaps permanent injury. Nor can it be essential that any false affirmations should have been made in words. The woman to whom marriage is offered by one she does not know to be married is not bound, at her peril, to suspect him of intended crime, and to question him accordingly; but she may rightfully assume, as she commonly will, that he has lawful authority to do what he proposes, and his conduct in proposing is of itself a false affirmation if he has not.
Known impotency on the part of the man, it would seem, must be a fraud on the marriage ; and being with child by another man at the time of the marriage, and not disclosing the fact, would be a like fraud in the woman. For these the marriage might be annulled by a competent court,. but they afford no ground for an action at the common law.
A marriage may be void because made in reliance upon
Aldrich •. Bennett, 63 N. H. 415; Holland o. Beard, 59 Miss. 161. If a girl is married shortly before reaching the age of consent, and continues to cohabit after reaching such age, the marriage is valid and want of consent of ber parents is immaterial. Holtz e. Dick, 42 Ohio St. 23.
Anonymous, Skiuper, 119. 2 Blossom o. Barrett, 37 N. Y. 434. A similar action was brought in Maine, after the man's death, against bis personal representative, and sustained. Withee o. Brooks, 65 Me. 14. Io Pennsylvania, however, it was beld the right of action did not survive. Gr.mt. Carr's Admr., 3. Peun.
St. 533. In Higgins o. Breen, 9 Mo. 497. a woman who had been united in & void marriage with a married man, whom she believed to be single, was held entitled, after his death, to recover against his estate the value of her services.
3 Scott 0. Shufeldt, 5 Paige, 43; Reynolds o. Reynolds, 3 Allen, 605; Donovan 0. Donovan, 9 Allen, 140; Morris o. Morris, Wright, (0.) 630; Riiter 0. Ritter, 5 Blackf. 81. Antinuptial incontinence in the woman is no ground whatever for annulling a marriage. Leavitt o. Leavitt, 13 Mich. 452; Varney o. Varney, 52 Wis. 120.
[*239) a *fraudulent divorce. Fraudulent divorces are some
times procured by going into foreign jurisdictions for the purpose, where neither courts nor legislature can have authority to grant them, because of the absence of the jurisdictional fact of residence. Where a marriage is entered into, in reliance upon such a divorce, with one not aware of the facts, the wrongs committed are precisely the same as if no such divorce had ever been obtained. They do not, therefore, require further notice here. The first marriage, under such circumstances, of course remains unaffected by the second, except as the latter constitutes a wrong which may justify a divorce. It does not discharge the guilty party from any of the duties or obligations imposed upon him by the first and legal marriage.
Burial Rights. In respect to the burial of the dead, if any. where, shall we find in the common law a recognition of legal rights in the family as an aggregate of persons. Even in that case, however, the recognition is very faint and uncertain. An unlawful interference with the buried dead of the family might
probably be restrained by injunction on their joint appli[*240] cation,' and *the owner of the lot in which the body was
deposited might maintain trespass quare clausum for its
· See Kincaid's Appeal, 66 Penn. St. 411, where burial rights are considered, and cases referred to. It is decided in this case that the grant of a burial lot in a cemetery, thougb purporting to be in fee, is only for so long as the ground is used for cemetery purposes, and that, under competent legislation, the cemetery may be vacated, and the bodies removed to other grounds without the consent of the family. Citing Windt o. German Reformed Church, 4 Sandf. Ch. 471; Richards o. N.W.Prot. Dutch Church, 32 Barb. 42; Price 0. Meth. Ep. Church, 4 Ohio, 515; Brick Presb. Church 0. New York, 5 Cow. 538; Coates o. New York, 7 Cow. 585; City Council o.Wentworth Baptist Church, 4 Strob. 306. Approving the Pennsylvapia case, see Partridge v. First Independent Church, 39 Jíd. 631.
Where the use of cemetery grounds for that purpose is discontinued, the lot owner has a right to remove mon. uments as personalty. Ibid. After the lot owner has for twenty years cared for his lot, the cemetery association cannot prohibit his doing it and do the work itself. Silverwood e. Latrobe, 13 Atl. Rep. 161 (Md.) The right of the owner of a cemetery lot much resembles that of the owner of a pew in a church. This last right is gone if the church is destroyed by fire or by time. Freleigh o. Platt, 5 Cow. 494; Gay o. Baker, 17 Mass. 435; Howard o. First Parish, &c., 7 Pick. 137. And the owner has no right to compensation from the parish if use of the church is abandoned. Fassett v. First Parish, etc., 19 Pick. 361. Neither has he if it is torn down be. cause it has become unfit for use.