| N.Y. Sup. Ct. | May 15, 1819
On the argument these questions were discussed ; whether, independently of statutory provisions, at common law, a child, having sufficient property, was liable, merely from that relation, to support her parents ; and whether a suit could
The duty of a parent to maintain his offspring, until they attain the age of maturity is a perfect common law duty. The liability of a child to support its parents, who are infirm, destitute, or aged, is wholly created by statute ; and it has been truly said, that the statute imposes on such relatives, duties unknown to the common law. (Reaves’ Domestic Relations, 284. 1 Bl. Com. 448.) In Rex v. Munden, (1 Str. 190.) Pratt, Ch. Justice, said, with the concurrence of the Court, “ by the law of nature, a man was bound to take care .of his own father and mother, but there being no temporal obligation to enforce that law of nature, it was found necessary to establish it by act of parliament.” Our statute for the relief and settlement of the poor, (1 JV". R. L. 286. s. 21.) provides, that the father and grandfather, mother and grandmother, being of sufficient ability, of any poor, blind, lame, or decrepid person, not being able to maintain himself, and becoming chargeable to any city or town, and the children and grandchildren being of sufficient ability of such poor, blind, lame, or decrepit person, not being able to maintain himself, and becoming chargeable, as aforesaid, shall respectively, at their own charge and expense, relieve and maintain every such poor person, in such manner as the justices of the peace of the county, at their general sessions of the peace, shall order and direct, on pain of forfeiting and paying one dollar and twenty-five cents for each person so ordered to be relieved, for every week such order shall not be obeyed, to be sued for by the overseers of the poor of the city or town to which such poor person shall be chargeable.
Now, the duty of a child, of sufficient ability to maintain its poor and destitute parents, being an imperfect one, not enforced at the common law, and the statute having prescribed the manner in which it is to be enforced, and the extent of the penalty, the statute remedy is the only one to he resorted to. This principle was recognized by this Court in Almy v. Harris, (5 Johns. Rep. 175.) Then, the consequence necessarily follows, that no one who has afforded relief to indigent persons, from motives of humanity, or from any other consideration, can maintain a suit, as upon an im
It was urged on the argument, that the Court would intend a request, from the moral duty operating on the child ; it is true, that a request has heen inferred, as in the case of Oatfield v. Waring, (14 Johns. Rep. 192.) from the beneficial nature of the transaction, and the circumstances of the case. In the present case, the maintaining the parents of the wife of the plaintiff in error, while she was sole, could not be considered a benefit to her; and the circumstances negative the idea that any request was made by her, or the defendant in error, to maintain and support her parents.
We must regard the special report of the referees as presenting the facts in the case, and then it is evident, that they place their decision on the ground, that the plaintiff below had expended a gross sum in supporting the parents of the wives of the plaintiff and defendant; that the defendant’s wife was of sufficient ability; that there were eight children, and the whole expenditure is apportioned on the eight children. The referees evidently founded their report on these circumstances alone; and unless we regard their report as in the nature of a special verdict, and consider the judgment rendered thereon, which is a general one, as adopting and sanctioning the special finding of the referees, and as applicable to the demand for necessaries found for the parents of the plaintiff’s wife, whilst she was sole, the judgment is erroneous on another ground. Some of the counts are against the plaintiff and his wife, for necessaries furnished the parents of the wife, at the special instance and request of the husband and wife; and no principle is better settled, than that the wife can, in no case, be sued upon a mere personal contract made during the coverture, whether joined with her husband or not, unless the husband be civiliier mortuus, or banished or .transported. (1 Chit. PI. 43. 2 Samd. 180, n, 9.)
Judgment reversed.