Of the Liability of Parents to support their Children, after they are of full Age, in the event of their becoming Paupers. Of the Liability of Children, after they are of full Age, to support their Parents, in the event of their becoming Paupers. Of the Non-Liability of the Husband of a Daughter, although the daughter would be liable if she was unmarried. Of the Parent's Right to govern, and being liable to the Child in an Action for immoderate Correction, and what Correction ought to be considered immoderate.

By the common law, it is the duty of parents to support their minor children. 1 Bl. Com. 446. This duty is founded on the

proceed against the putative father, and if the child is likely to become chargeable as a pauper, the overseer of the poor may conduct the prosecution; and, after he has assumed its control, no compromise with the mother will be binding. The mother is a competent witness, unless rendered incompetent by a conviction for some crime, which would, by law, disqualify her from being a witness in any other cause. fore, testify to the confessions of the putative father. 2 Aik. Vt. Rep. 209. Testimony is not admissible to show that she was reputed to be a common prostitute, at the time the child was begotten. Morse v. Pineo, 4 Vt. Rep. 281; Spears v. Forrest, 15 Vt. Rep. 435.

She may, thereMather v. Clark,

A married woman cannot sustain a complaint for bastardy, for the purpose of compelling the father of a child, begotten and born during coverture, to contribute to its suppart, even by showing a total want of access of the husband, such a case not being provided for by the statute. Gaffery v. Austin, 8 Vt. Rep. 70. But such prosecution may be sustained by the overseer of the poor in the name of the mother, though the mother, after the birth of the child, was married, and, at the time of the prosecution, was a feme covert; her husband joining with her in the written request for a warrant. Sisco v. Harmon, 9 Vt. Rep. 129.

In New York, the mother or putative father of an illegitimate is chargeable with the support of it in such a way as two justices of the county shall think meet; and the goods, chattels, and real estate of the parents are seizable for the support of such child, if the parents have absconded. The reputed father is liable to arrest and imprisonment, until he gives security to indemnify the town chargeable with the maintenance of the child. Rev. Stat. N. Y., vol. II, p. 640, 656.

In Ohio, this duty of compelling the putative father to support the illegitimate child, devolves upon the common pleas. Stat. Ohio, 1831. And it must appear in the complaint that the mother is an unmarried woman, and a resident of the state of Ohio. Edwards v. Knight, 8 Ohio R. 375.

law of nature. Whoever has been the instrument of giving life to a being incapable of supporting itself, is bound by the law of morality to support such being, during such incapacity. Ld. Ray, 500. When such incapacity ceases, the obligation is at an end. To prevent uncertainty on this subject, the law has fixed the time of minority until the child arrives at the age of 21 years. It is, then, the absolute duty of the parent to maintain his child until he is 21 years old. In ordinary cases, the incapacity of the minor has then ceased in fact, as well as in presumption of law;

In Indiana, the complaint is in the name of the state, under the oath of the mother, and filed in the circuit court. Woodkirk v. Williams, 1 Blackf. Rep. 111; Dickerson v. Gray, 2 ibid. 230. If the respondent does not appear and answer the complaint, the court is empowered to proceed in his absence; and, after issue found against him, may render judgment against him for such sum or sums of money, as it may deem proper, for the support and maintenance of the child, and for costs; but not for damages for the seduction of the mother, or expenses of her lying-in,—they being the objects of a lifferent kind of prosecution. Allen v. The State, 4 Blackf. 124. It must appear, in the complaint, that the mother was unmarried, and a resident of the state. Smith v. The State, 4 Blackf. Rep. 188. But the statute, giving the right to the mother to make complaint, has no reference to the place where the child was born. Cooper v. The State, 4 Blackf. 316.

In Illinois, nearly the same provisions exist. The statute, authorizing proceedings in cases of bastardy, was intended to enable the mother of an illegitimate to compel the father to contribute to its support. When he acknowledges his obligation, and voluntarily stipulates to perform that which, by law, he may be compelled to do, the ends of justice are attained by enforcing his undertaking. Coleman v. Frum, 3 Scammon's Rep. 380. The proceedings authorized by statute, in Massachusetts, are quite analogous to those in the state of Vermont. An examination of the following cases will afford the student an insight into the method of proceeding, and liability of the father, in this state. Johnson v. Randall, 7 Mass. Rep. 340; Merrill v. Prince, 7 ibid. 396; Commonwealth v. Clark, 2 ibid. 156; Commonwealth v. Cole, 5 ibid. 517; Woodcock v. Walker, 14 ibid. 386.

In Pennsylvania, the practice is, for the court, on a conviction of bastardy, to make an allowance for lying-in expenses, and to direct the payment of a gross sum for the support of the child, from its birth to the time of rendering judgment; and when the person, who has borne these expenses, is dead, the money may be awarded to his representatives. Sheffer v. Rempublicam, 3 Yeates' Rep. 39. Notwithstanding a pardon of the crime of adultery, on a conviction for adultery and bastardy, the court may proceed to make an order for the maintenance of the bastard child. Duncan v. The Commonwealth, 4 Serg. & Rawle, 449.

and with it ceases all moral obligations on the part of the parent, unless the child is, in fact, unable to maintain himself at the expiration of that period. During this period of infancy, the parent can never discharge himself from his obligation to support the child, by showing that the child was able to support himself; but he may do it by showing his own ina- 284 bility to support him. (a) If the child be an adult, the parent is liable for his support, if he be unable to support himself; but in this case, the parent may discharge himself from all liability to support his child, by showing that the child is able to support himself. This duty of supporting adult children is, in England, enforced by a statute of Eliz.; and similar statutes have been enacted in most, if not all, the States in the Union. The statute of this State makes it the duty of parents to support their children; and grand-parents, their grand-children; children, their parents; and grand-children, their grand-parents. This statute imposes on such relatives, obligations unknown to the common law. In the construction of our statutes, I have understood, that when a parent is able to support his pauper child, no aid is to be called for from their grand-parent; and so, too, when the child is able to support the parent, no aid is to be required of the grand-child. The English statute does not include grand-children. All, both male and female, with an exception hereafter mentioned, are bound to support their parents, if they be of ability; and they will be assessed, where there are a number able, in proportion to their ability, without any reference to the property which they have received from their parents. One child may have received a good estate from his parent, and now be poor; whilst another, who has received nothing from his parent, may be in affluent circumstances. The ability to support is the only thing which governs in the quantum of assessment; and I apprehend this will not be in exact proportion to the property owned. One may possess an estate of £1000; but his numerous family prevents his increasing his estate; whilst another, with the same estate, unincumbered with the expenses of a numerous family, is of greater ability to support his parent. (1) When a man marries a wife, having || children, 285 the husband takes upon him, during coverture, all the obli

(a) 3 Atk. 390; 1 Vez. 160; 1 Bl. Com. 448.

(1) This liability of the father to support his adult child is created by statute in Vermont. Rev. Stat. Vt. p. 104. Nor does the liability stop at the father. The kindred of any poor person, in the line of father or grand

gations that lay on his wife: he took her cum onere. 1 Bl. Com. 448. If, then, she were able to maintain her children, when he married her, he is bound to maintain her children: If she were not able, he is not bound; for it is not a natural duty that he should support the offspring of another man; and by the law of Baron and Femme, when coverture ceases, his liabilities on account of his wife cease also.

I know that it has been a received opinion, that an husband in Connecticut is obliged to support his wife's children by a former husband, if he be of ability to do it, whether she was able at the time of marriage or not, to support her children. Such an opinion is destructive of the symmetry of the law, as it respects the liability of the husband to perform the duties of the wife. It is opposed to the construction of the English statute, which had received a construction long before our statute was enacted. So that it is a fair presumption, that our legislature, when they enacted our statute, were perfectly satisfied with the construction given to the English statute. If they had intended to have made so important a variation, it is but reasonable to suppose that they would have expressed it in language that could not be mistaken. (1)

father, mother or grandmother, children or grandchildren, by consanguinity, living within the state, and being of sufficient ability, are bound to support such pauper, according to their respective ability. The county courts have power to assess the expenses of such support, in an equitable proportion, upon the kindred. In New York, similar provisions exist; and if the father, or mother, being a widow, abscond, and leave their children a public charge, their estate is liable to sequestration, and the proceeds will be applied to the maintenance of the children. Rev. Stat. N. Y. vol. I. p. 614. But, in this state, the provisions seem to extend only to the father and mother. Prior to the enactment of the revised statutes, the provisions of the statute of 43 Eliz. were in force, extending the liability to grandparents and grandchildren. In Massachusetts, the provisions of 43 Eliz. have been enacted; limited, however, to parents and children. Rev. Stat. Mass. 1835. In several of the other states, this statute has been enacted in all its provisions. Stat. Conn. 1784, p. 98, and of 1838, p. 363; Stat. of S. C. 1712; 2 Bailey's Rep. 320; 4 N. H. Rep. 162.

(1) The law upon this subject is now understood to be this: that if the husband take the wife's child by a former marriage, into his family, he is considered as standing in loco parentis, and becomes subject to the same duties towards him, as towards his other children, as long as the child remains in his family; for by the act of taking him in, he holds him out to the world as a part of his family. Stone v. Carr, 3 Esp. Cas. 1; Lord

It has been decided, both by the English and our courts, that a husband is not bound to support the wife's parent or grand-parent. (a) This is opposed to general principles; for his wife was liable to support them before marriage; and, of course, upon general principles, he would be obliged to support them after marriage. But the general principle is made to yield to the supposed superior strength of a principle of domestic policy, which governs in this case, that family discord may be prevented. In Connecticut, the mode of enforcing this duty, is by an application to the county court, to call all parties before 286 them, inquire, and assess the sum that is to be paid by each. This memorial may be made by any relatives concerned, or by the selectmen of the town, who, by our law, are overseers of the poor; or, indeed, by any neighbor, when this duty is neglected by all who ought to perform it. When the sum is assessed, security is given to abide the order of the court, which is to pay quarterly. If security be not given, the court will issue quarterly executions against each of the parties, in favor of the applicant, who becomes trustee of what he collects, for the benefit of those on whose account the application was made. When the children are minors, and the parents will not support them, an action at common law lies against such parents, by any person who supplies the children with necessaries. So too, where one child, among several, supports his pauper parents, without application to the court for an assessment, he may maintain an action against each of his brethren, or sisters, who refuse to bear their proportion of the support.

Protection is, also, a duty of parents towards their children. (a) 2 Buls. 345. Stra. 190.

Ellenborough, in Cooper v. Martin, 4 East, 82. The construction given to the statute of 43 Eliz., it is true, did not make him liable; for that applied only to relations by blood. Tubb v. Harrison, 4 Term. Rep. 118. And under this statute, it has been held that the husband is not liable for the expense of the maintenance of his wife's mother. Gay v. Ballou, 4.Wend. Rep. 403. The statute of 43 Eliz. has since been altered, in England, by statutes 4 & 5 W. IV. c. 76, sec. 57, by which the person who marries a woman, the mother of legitimate or illegitimate children, becomes liable to maintain them as a part of his family. It is the opinion of Chancellor Kent, that if the wife has separate property, a court of chancery would, in a proper case, make an order charging that property with the necessary support of her children and parents. 2 Kent's Com. 192.