#### FRIEND *v.*THOMPSON.

Enticing away a wife — certificate of depositions — averment—harboring—father and daughter, and son-in-law.

Notice to take depositions before *Jas.*Thompson, and the depositions certified *by Jas, W,*Thompson, the variance is not material, if from other circumstances it appear they were taken before the man intended.

If the declaration charges the defendant with enticing away and harboring the plaintiff’s wife with intent to deprive him of her society, that is a sufficient averment of his marriage to admit proof of it.

Where the husband leaves his wife at her father’s, and is gone several months, her staying with her father is no proof of her being enticed away from her husband.

The father may not only suffer his married daughter to stay about his house as before marriage, without,being liable to the husband for harboring her, unlesá he oppose her reconciliation with herhusband.

*637A father may protect and afford shelter to his married daughter, and it is his duty to do so, if the husband neglect to provide for Iter.

But he is not bound to harbor her husband or provide for him.

Case. The declaration contains two counts: 1st. For persuading and enticing away the plaintiff’s wife, and inducing her to keep away. 2d. For harboring his wife from the 1st of October, 1829, to June, 1832, knowing her to have left his bed and board against his will. Plea not guilty and issue.

Depositions were returned certified by *Jas. W. Thompson,*the notice was to take them before *Jas.*Thompson.

*S.*Marsh, for the defendant,

objected to their being read, because it did not appear they were taken according to the notice, or before the same justice.

*Bayles,*contra.

*Anthony, fox*the defendant,

objected, that there was no averment in the declaration that the plaintiff was married; therefore, the evidence was incompetent.

*Bayles,*contra,

was stopped.

By the Court.

The magistrate certifies that these depositions were taken at the time and place mentioned in the notice, and *pursuant*to the notice. The omission of the middle letter of the name in the notice is not material. Admitted.

M. Thompson, a witness, was asked to state what he knew of the marriage of the plaintiff.

By the Court. The declaration charges the defendant with enticing away the plaintiff’s wife, and with harboring his wife, &c. We think that a sufficient averment that the plaintiff had a wife to admit him to prove it, though, perhaps, not very technical.

It was then agreed that the plaintiff married the defendant’s daughter, and the defendant afterwards continued to live with her father and had removed with him from Fayette county, in the winter of 1829-30.

The marriage was in Fayette, in 1829 — the parties never went to housekeeping, but lived with her father — he working on the place as the other boys. The plaintiff and defendant came to Logan to look at land with a view to remove here, when the plaintiff was to be put on to a separate piece of land and work it, though the title was to remain in the defendant. Shortly after their return to Fayette, the plaintiff left home and was gone for several months. There had been no difficulty in the family, or between the plaintiff and his wife. On his return he did not come to the family, and some difficulty arose, when the defendant told him he should not stay *638about the house, but his wife might go with him if she chose. Soon after this, the family moved to Logan, and the plaintiff’s wife with them. After some months the plaintiff came into the neighborhood, and alleging he was afraid of injury from the defendant, sent several persons to talk with him and persuade his wife to live with him. The defendant uniformly said the plaintiff should not stay about his house, but the wife could go when she pleased. The plaintiff had become intemperate, tie made some agreement for a house to live in, but never furnished it. He met his wife two or three times to converse about their difficulties, when she expressed a willingness to live with him if he got a place, &c. Once, they met at a neighbor’s, and they were left in a room together when the family went to bed. He soon started to go — she asked him if he would not stay all night. He declined and went away. He never provided for her.

*Mason*and Anthony, moved for a nonsuit.

*Bayles*and *M.*Corwin, contra.

Wright, J.

To sustain the first count, proof is required of some, act of the defendant, to entice or persuade away the plaintiff’s wife, and to keep her from him. The defendant is the father of the plaintiff’s wife. The child has never left her paternal roof. There is not a particle of testimony to show any act of persuasion on his part to induce his daughter to leave her husband. On the contrary, the proof is, the husband left her, and has continued away from her, never having made any provision for her support. It is true, her father, after the plaintiff left, refused longer to harbor him aboút the house, but that does not sustain the declaration. He, surely, was under no obligation to support the plaintiff, although he might choose not to see his own daughter starve.

As to the second count, which alleges that the wife left the bed and board of the plaintiff wrongfully, and the defendant knowingly harbored her with intent to’ deprive him of her society — how is that sustained? The father did not turn his child out of doors, but suffered her to continue, and labor, and receive support as a child. He fed and clothed her, and when she was sick procured medical aid. The husband did neither. The father expressed his willingness that the daughter should live with him, but never interposed any restraint upon her. Where is the evidence that she wrongfully left the plaintiff’s house, and was harbored by the defendant with intent to deprive the plaintiff of her society? There is none. As a parent he had a right to afford shelter to his children — it was his duty to do so: for that the law does not hold him answerable. *639He must do some *positive wrong*act before he can be liable to respond in damages. The evidence here establishes no right in the plaintiff on either count. A nonsuit is ordered.