34 Ala. 15 | Ala. | 1859
The decree of the court below must be reversed, because one of the defendants had never been served with any notice of, or subpoena to answer, a matei’ial amendment to which an answer by such defendant was required.
The fault for which wé decide to reverse the case, seems not to have been observed by the chancellor or the counsel in the court below; and now, for the guidance of the chancery court in its future proceedings, we proceed to consider the questions reaching the merits of the case, which were decided by the chancellor, and, we suppose, discussed beforfe him.
To render the bond valid as a common-law bond, it is requisite that it should be supported by a consideration. Sewall v. Franklin, 2 P. 493; Hester v. Keith, 1 Ala. 316;
The father of the complainant' received money, and exercised the functions of a guardianship as to slaves.
It is a general rule of law, that the father is bound to support his minor children, if able to do so, even though they have property of their own. — 2 Kent’s Com. 191; 2 Story’s Eq. Jur. § 1354; Pharis v. Leachman, 20 Ala. 685; Bethea v. McCall, 5 Ala. 308. If the father is unable to maintain his infant child, having an independent estate, the chancery court will, upon an application by the father, make an allowance to him for the maintenance of such infant. — Watts v. Steele, 19 Ala. 656; Osborn v. Van Horn, 2 Florida, 360; In the matter of Burk, 4 Sanf. Ch. Rep. 617.
The court of chancery does hot coniine itself to the making of an allowance for a prospective maintenance, but will, in a proper case, allow a reimbursement to the father for the past maintenance of the infant. — Stewart v. Lewis, 16 Ala. 734; Montgomery v. Grivhan, 24 Ala. 568-588; Osborn v. Van Horn, supra; Patton v. Patton, 3 B. Monroe, 160; Heysham v. Heysham, 1 Cox, 178; Hughes v. Hughes, 1 Brown’s C. C. 387; Andrews v. Partington, 3 ib. 60; Greenwell v. Greenwell, 3 Vesey, 194; Reeves v. Brymer, 6 Vesey, 425; Sisson v. Shaw, 9 Vesey, 285; Maberly v. Turton, 14 Vesey, 499; Ex parte Bond, 2 Myl. & K. 439; Clay v. Pennington, 8 Simons, 359. Reason suggests, as the criterion for determining when an allowance for past maintenance should be made, the inquiry, whether a chancery court would have authorized it in advance. If, then, a father was unable to make the contribution to the maintenance of his infant child, at the time when it was made, the chancery court will reimburse him.
We thus reduce the question of Wm. J. Alston’s right to a credit for the maintenance and education of the complainant to this: was he able to maintain and educate him as he did ? To determine this question, it is necessary to inquire what is meant by ability to maintain the infant.
In Watts v. Steele, 19 Ala. 658, this court said, that the making an allowance to the father does not depend
The answers show that the parent guardian in this case was pecuniarily embarrassed during the guardianship; that debts, existing at the commencement of the guardianship, continued in some form during its entire duration ; that shortly after the guardianship terminated, the guardian became insolvent; that his income was unequal to his expenses; that the protracted illness of his wife produced great expense and loss of time, and consequent diminution of income as compared with the outlay; that he had six other children to be reared and educated; that he was unable to educate and maintain his children in a style comporting with the complainant’s fortune; that he has endeavored to support and educate the complainant in a manner suitable to his degree and condition in life; and it appears from the bill itself that the complainant had a very considerable fortune independent of his father. The answers being such, and the proof conducing to
The appropriation of his ward’s slaves to his own use by the guardian was without any adequate excuse, apparent either from the allegations of the bill, or from the proof; and he was, therefore, properly charged with their hire.
Eor the errors pointed out, the chancellor’s decree is reversed, and the cause remanded, for further proceedings in pursuance to the foregoing opinion.