Rice v. Nickerson

91 Mass. 478

Opinion

Dewey, J.

The rulings in the present case were correct. The material points as to the maintenance of the action were fully settled in the case of Commonwealth v. Nickerson, 5 Allen, 518. The defendant, although acting without any other purpose than to obey the order of those persons who illegally assumed to direct the removal of the boy from the custody of the father, became liable to the father to the extent of his actual injuries sustained thereby, and this would include reasonable and proper expenditures incurred in the attempt to regain the possession of the boy. The instructions of the court upon this subject to the jury were well and carefully stated. Bennett v. Lockwood, 20 Wend. 223.

The copy of the record of the decree of the circuit court in Indiana was properly excluded. The proposed evidence of the wishes of the boy to go with his mother, stated to the presiding judge on the hearing of the writ of habeas corpus, was also properly rejected. The plaintiff disavowed all claim for aggravation of damages, for any malice on the part of the defendant towards him in the acts which he had done, and rested his claim for damages solely on the ground that he bad the rightful custody of the child, and that the defendant had illegally removed him, in violation of his rights. The exceptions must therefore be overruled, and judgment entered for the plaintiff foi the larger sum found by the jury.