83 So. 140 | Miss. | 1919
Lead Opinion
delivered the opinion of the court.
The six minor children of Thomas Rawlings, appellant, exhibited, by next friend, their bill of complaint against their father, alleging that the defendant had not lived with them or their mother for a number of years; that their father had not for a long period contributed anything to their support; that the mother was not able to care for them and that they were without means of support; that the defendant was the owner of a certain plantation, and that this plantation “is liable to them for a support.” The prayer of the bill is that upon final hearing “the court will ascertain what amount is sufficient for the monthly support of said minor children, and order and decree that such amount be paid monthly by the defendant, and that the same be •made a lien upon the property of the defendant,” etc. The alleged plantation of the defendant is not described in the bill, but a lis pendens notice was filed, indicating in a general way the real estate upon which a lien is.
This is not an action for board and lodging furnished the minors, either by the mother or a third person. This is a proceeding in equity to have the chancellor fix in advance a monthly allowance for the infant children of the defendant, to enter a decree requiring the defendant to pay the sum fixed, and to adjudge a lien upon the defendant’s real estate for the sums so ordered to be paid. The law as known and expounded for centuries fails to sanction any such proceeding. We recognize to the fullest extent the obligation of a parent to support his infant child, and nothing said in this opinion would discount in the least this primary obligation, imposed by the law of nature. The question before us is one as to the remedy in the case made by the bill. (l)oes the existence of the obligation on the part of the parent justify a court of equity in entertaining a •bill or action by the child against its father to determine in advance the amount of support and maintenance, and compel obedience to its orders in the premises by imposing a lien upon property or otherwise 1 On this point the authorities are in accord. In 21 Am. & Eng. Ency. of Law (2 Ed.), p. 1052, it is said:
“The moral obligation of a parent to support his child is not directly enforceable, and a court of equity •cannot compel the performance of this duty. The duty may be enforced, however, under statute, or indirectly, as where a stranger' supplies an infant with necessaries and recovers therefor against the parent.”
In 20 R. C. L. par. 31, it is said that:
“The civil remedy is more commonly worked out by holding that, if the father leaves his children destitute, he confers on any one who finds them in that condition an agency to supply them with necessaries; the volun*151 teer can therefore recover the cost of the supplies from the father in a civil action.”
Practically the same declaration is made in the text of Cyc. (volume 29, p. 1614), and on page 1683 it is -pointed out that “actions by children against their parents are not to be encouraged, . . . and a minor child has no right of action against a parent for the tort of the latter.” In the footnotes to the text last quoted is our own case of Hewlett v. George, 68 Miss. 703, 9 So. 885, 13 L. R. A. 682. In this case, which appears in our reports as Hewlett v. Ragsdale, our court, by Woods, J., in forcible language declared:
“The peace of society, and of the families composing-society, and a sound public policy, designed to sub-serve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent. The state, through its criminal laws, will give the • rumor child protection from parental violence and wrongdoing, and this is all the child can be heard to demand. ’ ’
This language was quoted with approval by the supreme court of Tennessee in McKelvey v. McKelvey, 111 Tenn. 388, 77 S. W. 664, 64 L. R. A. 991, 102 Am. St. Rep. 787, 1 Ann. Cas. 130. There has been brought to our attention nd case which, based upon the common law or general equity jurisdiction, sanctions this proceeding. On the contrary, the exact question was elaborately considered, and the point ruled adversely to the contention of complainants, in the case of Huke v. Huke, 44 Mo. App. 308. In the Huke Case, a daughter seventeen years of age, by next friend, filed her petition in equity against her father for support and maintenance. It was there, as here, contended that the chancellor has full jurisdiction over the persons and property of infants but the court of appeals of Missouri observed:
*152 “This action proceeds in the face of elementary principles.”
The court further said: “No instance is found in the books where such an action as the present has been maintained, either at law or in equity. At one period in our English history a statute was enacted that, if any Popish parent should refuse to allow his Protestant child a fitting maintenance, with a view to compel him to ,change his religion, the Lord Chancellor 'should, by order of the court, constrain him to do what is just and reasonable. Stat. 11 & 12 "W. Ill, c. 4. The very enactment of this statute — the necessity in the state of the law for such a statute — shows that a father was under no compulsory obligation at common law, or by the principles of equity, to support his infant child. A case arose after the passing of this statute, making this conclusion still more clear. The daughter of a wealthy Jew had embraced Christianity, and he turned her out of doors. On the petition of the parish for relief against him, they were held entitled to none, because it was not alleged that she was poor or likely to become chargeable. 1 Ld. Raym. 699. This gave occasion for another statute, which ordained that, if Jewish parents should refuse to allow their Protestant children a fitting maintenance, suitable to the fortune of the parents, the Lord Chancellor, on complaint, might make such order as he should see proper. Stat. 1 Anne, c. 30; 1 Bla. Com. 449. . . . No court of chancery in England ever made an order requiring a father, however wealthy, to set apart out of his own estate a fund for the maintenance and education of his infant child, or even to provide sustenance for such child. The common law of England has, from the earliest times, left this duty to the natural feelings of the parents, and experience has shown that the confidence has riot in general been misplaced.”
“1. A court of chancery has no jurisdiction to compel a parent to support an infant child.”
In the opinion by Pitney, V. C., the following language by the supreme court of Connecticut in Finch v. Finch, 22 Conn. 411, is quoted with approval:
“Connected with this obligation of maintenance there is a parental privilege. The parent is entitled to the custody and care of the child which he sustains, and to such service as it can render, and he has a right to exercise his own discretion in determining the fitness and necessity of the allowances to be made and of the support to be furnished to his children, for which he is to be made chargeable.”
If the jurisdiction of equity has been enlarged in any of the states of the Union, it is certainly based upon some statute. We have in our state two statutes* which indirectly bear upon the subject. Section 3571, Code of 1.906 (section 6188, Hemingway’s Code), imposes a duty upon certain relatives to support pauper members of their family. By this statute the father of a pauper child is made liable to the county in the sum of eight dollars per month for each month the father lias failed or refused to provide the necessary support and maintenance, and furthermore is made liable to any person in like sum who supplies such poor relatives with necessaries. By section 5055 (section 3332) every person who abandons his wife or family without just cause, leaving her or them without support, or in danger of becoming a public charge, is declared a vagrant, and punishable as such. Statutes for the protection of the poor have been enacted in England, and in most, if not all, the states of the Union. The English Statute of 43 Eliz. c. 2, provides:
“The father and mother, grandfather and grandmother, of poor, impotent persons, shall maintain them,*154 if of sufficient ability, according as the quarter session shall direct.”
In considering the Connecticut statute, declared to be “nearly a transcript of the English statute on this subject,” the supreme court of Connecticut ruled that their statutory' provisions “embrace as well minor as adult children.” Finch v. Finch, supra, 22 Conn. 416. Poor infants cannot then be said to be without some’ remedy. If a father, though able, becomes so depraved as willfully to abandon his offspring, he is answerable to the criminal laws of our commonwealth. But such cases’ must be few indeed. When they exist, they are generally the result of differences between husband and wife and a home broken up by domestic troubles. And in cases of divorce the chancery court is given jurisdiction by statute (section 1673, Code of 1906; section 1415, Hemingway’s Code.) to “make all orders touching the care, custody, and maintenance of the children of the marriage,” that “may seem equitable and just,” and afterwards may “change the decree, and make from time to time such new decrees as the case may require.”
We are not justified in enlarging the jurisdiction of chancery beyond that indicated by the statute, and in opening the door of the courts to any unruly or disobedient child who may complain at either the amount or kind of support and maintenance provided by the father. The same reasons that led the court to the conclusion reached in Hewlett v. Ragsdale, supra, are persuasive here. “The repose of families and. best interests of society forbid” any such action. If the chancellor can fix in advance the amount of support each dissatisfied child must receive, then is parental authority superseded by judicial fiat, parental discipline swept away by self-assertion and disobedience on the part of children, and the integrity of the home, the corner stone of society, is undermined. The bill even prays that a lien be fixed upon the father’s real estate. By no provision
For the reasons indicated, the decree of the learned chancellor will be reversed, the demurrer sustained, and decree entered here in appellant’s favor.
Reversed, and decree here.
Dissenting Opinion
(dissenting).
After profound consideration of the question presented by this record, I find myself unable to agree with my Brethren. In my opinion their exegesis is erroneous, and fruitful of evil consequences to the helpless and unfortunate children of this state who have cruel, shiftless, heartless parents. The courts, and especially courts of equity should be diligent to discover and swift to remedy the wrongs of helpless children.- It is the function of government to protect the weak and helpless from the wrongs of the strong, the cunning, and the vicious; and the fact that the strong, cunning, and vicious may happen to be' the parents of the weak and helpless, instead of removing the protection, should be an additional reason for the exercise of diligence and the extending of the remedial aid of the court of equity. In order that my position- may be better understood, I shall state the facts, and then my view of the law applicable to them, and afterwards consider the views of. the majority, and the authorities cited sustaining that opinion, hoping to point out the errors therein contained..
The petition in this case was filed by the mother of the children as their next friend, and alleged that the petitioners were the children of the defendant (appellant), and that they were without means of support, and unable to earn a support; that they, lived with their mother, away from their father; that the mother was unable to support them, and that their father was able to support them, and that it was his duty to do so;
“All courts shall be open; and every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice shall be administered without sale, denial, or delay. ’ ’
Section 512, Hemingway’s Code (section 729, Code of 1906), reads as follows:
‘ ‘ The declaration shall contain a statement of the facts constituting the cause of action, in ordinary and concise language, Avithout repetition; and if it contain sufficient matter of substance for the court to proceed upon the merits of the cause, it shall be sufficient; and it shall not be an objection to maintaining any action that the form thereof should have been different.”
“The chancery court shall have full jurisdiction in the following matters and cases, viz.: . . .
“(a) All matters in equity;
“(b) Divorce and alimony;
“(c) Matters testamentary and of administration;
“(d) Minor’s business;
“(e) Cases of idiocy, lunacy, and persons of unsound mind;
“(f) All cases of which the said court has jurisdiction under the laws, in force when this Constitution is pnt in operation.”
“The circuit court shall have original jurisdiction in all matters civil and criminal in this state not vested by this Constitution in some other court, and such appellate jurisdiction as shall be prescribed by law.”
It will be'seen from the sections, quoted that there is jurisdiction vested in these courts for the enforcement of all rights affecting person, property, or- reputation. Does this suit lie? The majority opinion concedes that it is the legal .duty of a parent to support the child. There can be no legal duty without a corresponding-legal right. It would be idle, yea impossible, to declare a duty without at the same time declaring a corresponding right in the person or persons • to whom the duty was owed. The one necessarily implies the other. Section 1415, Hemingway’s Code (section 1673, Code of 1906), providesr
-When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just,make all orders touching the care, custody, and maintenance of the children of the marriage, and also touching the maintenance and alimony of the wife, or any allowance to be made. to her, and may, if need be, require sureties, for the payment of the sum so allowed; and the court may afterward, on petition, change the decree, and make from time to time such new decrees as the case may require.”
Is is reasonable to construe this section so as to .make it inapplicable to other suits than divorce suits? I think not. The cases of Garland v. Garland, 50 Miss. 694, and Verner v. Verner, 62 Miss. 260, are persuasive for a different construction. There the law was as to alimony in a suit by the wife for her support, and the law, as it then existed, was that alimony was allowed
The most powerful and pressing considerations, it occurs to me, present' themselves in favor of a like construction here. Why should the husband escape the duty to support his children in case no divorce is asked, and be compelled to do so where a ■ divorce is asked? Would not such construction encourage, rather •than discourage, divorce?. And is it not the. settled public policy to discourage divorce, and encourage the discharge of legal duty?
Section 6188, Hemingway’s Code (section 3571, Code of 1906), reads as follows:
“The father and grandfather, the mother and grandmother, and brothers and sisters, and the descendants of any pauper not able to work, as the board of supervisors shall direct, shall, at their own charge, relieve and maintain such pauper; and, in case of refusal, shall forfeit and pay the county the sum" of eight dollars per month for. each month they may so refuse, to be recovered in the name of the county; and shall be liable to any person who supplies such poor relative, if abandoned, with necessaries, not exceeding said sum per month.”
Does this section, provide an exclusive remedy in case no divorce proceedings are pending? Clearly not. It will be noted that' the legal duty is clearly fixed upon the father to support and maintain his children at his own expense. If he does not discharge this legal duty, the board of supervisors may, if the child is maintained by the county, sue him for as much as eight dollars per month, and no more. Any private person furnishing such child support cannot recover more than eight dollars per month. If this is the exclusive remedy, the child would starve, or its living expense would have
“If the father or mother of any child under the age of six years, or any other person having the lawful custody of such child, or to whom such child shall have been confided, shall expose such child in any highways, street, field, house, outhouse or elsewhere, with intent wholly to abandon it, such person shall, upon conviction, be punished by imprisonment in the penitentiary not more than seven years, or in the county jail not more than- one year.”
It will be seen that this section is very limited in its scope. It does not apply at all to children over six years of age, and is then limited to particular acts, and does not apply to mere neglect. If that is the remedy for helpless children, God have mercy on them!
What about vagrancy proceeding? Section 5055, Code of 1906 (section 3332, Hemingway’s Code), defines who are vagrants, and paragraph (k) of this section is the one that provides that: “Every person who shall abandon his wife or family, without just cause, leaving her or them without support, or in danger of becoming a public charge.”
And paragraph (m) provides: “All persons who are able to work and do not work, but hire out their minor
These are the only provisions pertinent to the suit before us. The proceedings for dealing with vagrants are contained in section 3335, Hemingway’s Code (sec tion 5058, Code of 1906) and section 3338, Hemingway’s Code (section 5061, Code of 1906).
It was provided in section 3335, Hemingway’s Code, that whenever any person is arrested on a charge of vagrancy he shall be carried before a justice of the peace, and on satisfactory evidence of being a vagrant that the justice of the peace shall commit such person to jail for not less than ten nor more than thirty days, and that such person so committed shall serve his sentence, unless he shall give bond with sufficient surety for future industry and good conduct for a period of one year, and that such bond, if given, may be put in suit, and that whenever the bond so taken be forfeited there shall be no recovery less than the face value of the bond, unless the vagrant shall be delivered up to the circuit court for future trial, in which case the court may limit the amount of recovery on the bond to the cost of suit and a penalty of fifty dollars. This bond nowhere provides for the recovery thereon by the infant or the wife. The suit must be in the name of the state, and it provides no support whatever for the dependents of the vagrant. If the alleged vagrant refuses to give bond, he may be imprisoned for thirty days, and no longer. Clearly this proceeding affords no certainty of relief for the dependents of the vagrant. Section 3338, Hemingway’s Code (section 5061, Code of 1906), provides for a second conviction, and. provides that in such case the vagrant shall be committed to jail jail for not less than ninety days nor more than six months, and shall serve such sentence, and not be liberated from such sentence by payment for the time required to be served by such sentence. This section
So we say that these criminal and vagrant sections do not provide for their support. In 1 Corpus Juris, p. 985, section 93, it is said:
“The violation of a right, as defined or recognized by the substantive law, constitutes a wrong and it has long been a settled pjrinciple and maxim of the law that for every right or as otherwise, and perhaps more accurately, stated, for every wrong, or for the vindication or violation of every .right, there is a remedy, or, in other words, that wherever the law recognizes a right it gives a remedy to enforce it, or to redress its violation, and in the application of this principle it is immaterial whether the right is a common-law right or exists by virtue of statute. Right and remedy are reciprocal, and to deny the remedy is, in substance, to deny the right.”
For essentials of an action, see 1 Corpus Juris, p. 927, and page 935, section 28. At page 986, same volume (section 95), it is stated by this same authority, under heading “Statutory Rights:”
“The rule that wherever the law recognizes a right it gives a remedy applies to statutory as well as to common-law rights; and so wherever a statute creates a new right or duty, and does not prescribe any particular remedy for its enforcement, the party entitled to the benefit of the statute may resort to any existing remedy which will afford adequate and proper redress, whether it be a common-law or a statutory remedy. ’ ’
. Section 96, under the same chapter, under heading “Framing New Remedies,” says:
“In order to afford a remedy for every wrong it became necessary during the formative period of the common-law actions, as new cases arose under recognized principles, to frame new writs, where none ap*163 propriate to the case could he found. These writs were formerly issued out of chancery and directed to the common-law courts; hut it is now well recognized that the court in whch an action is brought may, in order to-prevent a failure of justice, or- to enforce a recognized principle of law, devise or adopt such new remedy or mode of procedure as the case may require, and that it is its duty to do so; but a new remedy or mode of procedure should not be resorted to, when there is an appropriate and adequate remedy already known to the law. ”
In section 99, p. 987, under heading “Nature and Form of Remedy,” it is said:
“The rule that there shall be a remedy for the enforcement of every right, although it be a new right created by statute, does not have reference to any one particular remedy, but to such form of remedy as is appropriate to the nature of the particular case; and in some cases there may be more than one appropriate remedy.”
In section 100, p. 986, of the same authority, under heading “Statutory Remedies,” it is said:
“It is competent for the legislature to provide a remedy in cases where none existed at common-law, or in creating a new right to prescribe the remedy by which it is to be enforced, and limit jurisdiction of it to a particular tribunal, or to provide new remedies for pre-existing right?, and make such new remedies exclusive. Where a statutory remedy is prescribed for a particular purpose, it will be limited accordingly and cannot he used for other purposes, and in pursuing a statutory remedy the proceedings must conform to the provisions of the statute.”
In section 101, same authority, at pages 988, 989, under heading “Cumulative or Exclusive Remedies,” it says:
*164 “Unless governed by 'some general statutory provisions, tbe question as to whether a statutory remedy is exclusive or merely cumulative depends primarily upon the intention of the legislature, as shown by a construction of the statute prescribing the remedy. The question is ordinarily determined according to whether the remedy is given for the enforcement of a new right created by the statute, or is merely a new remedy for a pre-existing right; but while, unless a contrary intention appears, the remedy will in the former case be construed as exclusive, and in the latter as merely cumulative, this distinction is not in all cases- controlling. ’ ’
In section 102, pp. 989, 990, same authority, under heading “New Right Created with Remedy,” it says:
“Where a statute creates a new right, and also provides a remedy -for its enforcement, it is ■ ordinarily held that such remedy is exclusive. This rule seems to have been first laid down with reference to remedies under criminal and penal statutes; but it applies equally to civil actions of a personal nature, and where the statute providing such a remedy confers jurisdiction thereof upon a particular court or tribunal, such jurisdiction, as well as the remedy, is exclusive. The rule is not, however, of universal application, particularly in the case of statutes which are not penal, for it is based merely upon a presumed prohibition of other remedies and will yield where, a contrary intention appears. ”
In section 103, p. 990, under heading “New remedy for Pre-existing Right,” this authority says:
“Where a statute providing a remedy does not create a new right but merely provides a new remedy for a pre-existing right, it is ordinarily held that such remedy is not exclusive, but merely cumulative, whether the right is one previously enforceable at common law', or by virtue of some other statute or constitutional*165 provision, and whether it was previously enforceable at law or in equity, and notwithstanding the new remedy may be preferable to or more efficient than the old.”
In section 105, p. 991, under heading “Adequacy of Statutory Remedy,” this authority says:
“The rule that a new remedy for a pre-existing right will not be regarded as exclusive is particularly applicable where such new remedy is not an adequate one. ”
Testing the present case by these rulings, we are bound to conclude, it seems to me, that these penal and criminal statutes do not provide an exclusive remedy for the enforcement of the rights of children, to support by their parents.. The obligation existed independent of the statute.
.In 20 R. C. L. p. 622,.under heading “Liabilities of Father,” it is said:
“It has already been pointed out that correlative to the father’s right to the custody control and earnings of his minor child is his duty to support such child. This duty is recognized and discharged even by the higher orders of the animal world and it would seem to be prescribed as to the human father by the most elementary principles of civilization as well as of law. And yet it was held in some early American cases, supported by eminent English authority that ‘there is no legal obligation on a parent to maintain his child, unless by force of some statute. But this doctrine admitted to seem startling and opposed to the innate sence of justice by the court which gave to it it first American support has been repudiated by the great majority of American courts. A father of sufficient ability is bound to support his minor child, though the latter has an estate of his own. ’ ’
And at page 623 the same authority said:
*166 “The practical .difficult which undoubtedly led some courts to hold that the father’s duty of support was only a moral duty is as to the method of enforcement. The very similar duty of the husband to support his ivife is easily enforced by imputing to her an agency to procure necessaries on his credit, if he leaves her destitute; hut in the case of the infant he is legally incapable to contract, and in most cases actually unable to contract with wisdom and'prudence.”
While a person who furnishes an infant may recover from the father in this state to the extent of eight dollars a month, “and no more,” he is under no obligation to do so, especially when he might have trouble in collecting from the father. At page 625, 20 R. C. L., it is said:
“But if a father abandons his duty to his infant child, so that he is forced to leave his house, he is liable for a suitable maintenance. The principle of the distinction is that in one case the father is blameless and in the other blamable. Whether, from all the circumstances, authority from the father should he imputed to the child or to a third person to procure or to furnish necessaries on the father’s credit is a question of fact for the jury. If a father permits his child to live with its mother, her adultery is no bar to an action by her to recover for support furnished to the child. ’ ’
See, also, Van Valkinburgh v. Watson, 13 Johns. (N. Y.) 480, 7 Am. Dec. 395; Schouler’s Domestic Relations, p. 327-331; Johnson v. Johnson, 2 Hill, Ch. (S. C.) 277, 29 Am. Dec. 72; Owen v. White, 5 Port. (Ala.) 435, 30 Am. Dec. 527; Ward v. Goodrich, 34 Colo. 369, 82 Pac. 701, 2 L. R. A. (N. S.) 201, 114 Am. St. Rep. 167; Alvey v. Hartwig, 106 Md. 254, 67 Atl. 132, 11 L. R. A. (N. S.) 678, 14 Ann. Cas. 259; Spencer v. Spencer, 97 Minn. 56, 105 N. W. 483, 2 L. R. A. (N. S.) 851, 114 Am. St. Rep. 695, 7 Ann. Cas. 901, and case note; Graham v. Graham, 38 Colo. 453, 88
The majority opinion concedes that it is the legal as well as the moral duty of the father to support his minor children, hut concludes that there is no remedy for the enforcement of this legal duty at the suit of the child. In Garland v. Garland, 50 Miss. 694, this court laid down the following general rule pertaining to equity jurisdiction and procedure:
“Courts of equity in America will always interpose to redress wrongs when the complainant is without full, adquate, and complete remedy at law. Here there is no such process as supplicavit, nor a distinct proceeding for the restitution of the conjugal relation. If a wife is abandoned by her husband without means of support, a hill in equity will lie to compel the husband*168 to support the wife without asking for a decree of divorce. ’ ’
This rule has been cited with approval in the following cases: Dewees v. Dewees, 55 Miss. 319; Verner v. Verner, 62 Miss. 263; McFarland v. McFarland, 64 Miss. 449, 1 So. 508; Scott v. Scott, 73 Miss. 580, 19 So. 589; Moseley v. Larson, 86 Miss. 294, 38 So. 234; Ross v. Ross, 89 Miss. 66, 42 So. 383.
Prior to this decision the authorities had treated alimony for the wife as an incident to some suit, such as divorce, and it was earnestly contended that, as there was no statute granting the suit without the pendency of a divorce, the relief could not be granted. In Garland v. Garland, 50 Miss. 711, 712, the court quoted from Story’s Equity Jurisprudence, section 1423a, with approval as follows:
“ ‘In America, a broader jurisdiction in cases of alimony has been asserted in some of our courts of equity; and it has been held that if a husband abandons his wife, and separates himself from her without any reasonable support, a court of equity may, in all cases, decree her a suitable maintenance and support out of his estate, upon the very ground that there is no adequate or sufficient remedy at law in such a case. And there is so much good sense and reason in this doctrine that it might be wished it were generally adopted.’ No sufficient reason can be offered in answer to the broad proposition of Mr. Story, and the objector must rely upon the technical fact that it has not obtained in England. Purcell v. Purcell, 4 Hen. & Mun. (Va.) 507, presented three questions — marriage, desertion, and the fight of the wife to a separate maintenuance. The two first averments were established. As to trie third the chancellor said: I hold, that in every well-regulated government theré must exist a power affording a remedy when the law affords none, and this peculiarly belongs to a court of equity i*169 and as husband and wife are considered as one person in law, it is evident that in this case the law can afford no remedy, which is universally admitted to be a sufficient ground to give this court jurisdiction, and therefore it must entertain the bill, if there be sufficient proof of the .marriage.’ In the opening of his opinion, the chancellor said: ‘I shall leave the clashing of the English judges to be reconciled among themselves, and take up the question upon first principles.’ The marriage was sustained and ' the prayer for a separate maintenance granted. The decree required an annual payment by the husband to the wife ‘until he should restore her to the comforts of her bed and board, and give satisfactory assurances for her enjoyment thereof.’ This decree was enforced by committing the husband to prison for neglecting' compliance. He purged himself of the contempt by paying to his wife the amount due and in arear and giving security for his future performance of the decree.
“Precisely the same question under consideration was before the courts of South Carolina in the case of Prather v. Prather, 4 Desaus. 33. The opinion is a searching review of the English decisions, and a very emphatic assertion of the equity of the rule, which, Story says, ‘it might be wished it were generally adopted.’ The court in that case observe: ‘It might be sufficient to say that, as there have been cases on both sides of the question, .... I should feel myself at liberty to select those cases for my guide which applied to the circumstances of this country, and would best promote the purposes of justice. . . . The subject has been discussed, and the court has decreed that the wife should have a separate estate from her husband, in the case of ill usage, and a consequent separation or desertion by the husband, though no agreement for a separate maintenance and no divorce. ... I allude to several cases which were decided in this court some*170 years since, expressly on the ground that no other .tribunal could give redress, and that it would be unseemly and highly mischievious if this court did not interfere,” See also, 2 Desaus. 198, and cases in South Carolina therein referred to.”
In 50 Miss. 713, the court also quote the Supreme Court of Alabama as follows:
“The supreme court of Alabama, in Glover v. Glover, 16 Ala. 440, use this language: ‘No one will deny but that the husband is bound by the strongest obligations, resulting not alone from the contract of marriage, but founded upon the highest moral consideration, to support his wife. And if it be true that the law, as well as enlightened conscience, creates this obligation, and no court can enforce its performance or compensate for its most cruel and flagitious violation then indeeed has one class of cases been found which falsifies the boasted maxim “that for every wrong there is a remedy, and for every injustice, an adequate and salutary relief.’ ” And after adverting to the disagreements of the English Chancellor, the court also says: ‘ So stands the law in England, and since her learned Chancellors have not been able to reconcile their own decisions, we feel that we shall not be wanting in respect for them in adopting a rule of decision for ourselves, which we conceive to be more consonant with an enlightened equity, and with the fundamental principles and maxims upon which the jurisdiction of our courts of chancery is based.’ ”
In 50 Miss. 714 our court, quoting from the Kentucky court in Butler v. Butler, 4 Litt. 202:
“ ‘But in equity the wife can sue the husband, and it is the province of a court of equity to afford remedy, where the conscience and the law acknowledge a right, but know* no remedy. Why, then, should the chancellor shrink at this case and refuse a remedy! It is evident that this arose in England for fear of intruding upon*171 the ground occupied hy the ecclesiastical courts.’ And in this quotation the whole case at bar is embraced. With us, marriage rests in contract, and the obligation is both to the wife and to society. That the remedy at law, in case of a breach of this contract, is neither full, adequate, nor' complete, is plain to ordinary experience. The law’s delays are proverbial. The credit of a man, stubbornly determined not to support his wife, will not feed the hungry nor clothe the naked. A man might be worth a large fortune, yet so situated as to defy judgment and execution. The credit of one so disposed would avail nothing in the market in the way of procuring supplies, as merchants will not part with their goods upon such uncertain security.”
In 50 Miss. 715, 716, the court said:
“ Support of the wife is the legal duty of the husband. The wife has a right to demand it; but, as her remedy* when this right is denied, is not full, adequate and complete at law, equity ought to enforce it. In abandoning the wife without good cause and refusing to support her, the husband violates a legal duty and commits a breach of contract, Avhich entitles the wife to redress, either by divorce, or to the enforcement of the marriage contract by compelling restitution of conjugal rights to the extent of maintenance, at her option. If she chooses the latter she ought not to be starved into the former, for that Avould force her to abandon the marriage contract against her will.”
In the subsequent case of Verner v. Verner, 62 Miss. 263, the court again held that the Avife could file suit for alimony without suit for divorce.
The case of Johns et al. v. Williams & Black, 66 Miss. 350, 6 So. 207, was a suit by complainants against their mother and Williams & Black. It was alleged that the complainants were minors, except one of them, and that they had not a guardian, and the land in controversy was conveyed in and for their use, and the suit was to
InWilliams v. Duncan, 44 Miss. 375, the court said:
“If there were no other reason, the infancy of the complainants brings the case within the jurisdiction of a court of equity.”
In Johns v. Smith, 56 Miss. 727, this court held that the chancery court had full jurisdiction over minors and their property, which must be exercised whenever nonaction would result prejudicially to the minor, and if there is no guardian the court must act without one.
In Hurt v. So. Ry., 40 Miss, 391, it was held that an infant could sue in a court of law by next friend. See also, 22 Cyc. 627, where it is said that infants may sue at law or in equity.
Minors are peculiarly wards of the chancery court, and it was held in Price v. Crone, 44 Miss. 571, that it is the duty of the chancellor to protect the interest of minors whether the proper defense be made or not; and for this purpose they look to the record in all its parts, and, of his own motion, give to the infant the benefit of all objections and exception as fully as if specially pleaded. The infant can waive none of it.s rights.
In Story’s Equity Jurisprudence (10 Ed.) section 1341, at page 595, it is said:
“The jurisdiction of the court of chancery extends to the care of the person of the infant, so far as necessary for. his protection and education; and as to the care of the property of the infant, for its due management and preservation, and proper application for his maintenance. It is upon the former ground, principally, that is to. say, for the due protection and*173 education of the infant, that the court interferes with the ordinary rights of parents, as guardians by nature, or by nurture, in regard to the custody and care of their children. For although, in general, parents are intrusted with the custody of the persons, and the education of their children, yet this is done upon the natural presumption that the children will be properly taken care of, and be brought up with a due education in literature, and morals, and religion, and that they will be treated with kindness and affection. But whenever this presumption is removed, whenever (for example) it is found that a father is guilty of gross ill treatment or cruelty towards his infant children, or that he is in constant habits of drunkenness and blasphemy, or low and gross debauchery, . . . the court of chancery will interfere, and deprive him of the custody of his children, and appoint a suitable person to act as guardian, and to take care of them, and to superintend their education.”
In Leibold v. Leibold, 158 Ind. 60, 62 N. E. 627, it was held that suit would lie in equity against the father for the support of his minor children, independent of any statute. In that case the suit was filed by the wife for the support and custody of their minor children; the only distinction between that and this being that this suit is merely for the support without any suit as to custody. The proceeding did not conform to a statutory proceeding in Indiana. At page 61 of 158 Ind. (62 N. E. 627), the court said: “This proceeding, however, was not brought under the act of 1881, nor does the sufficiency of said second paragraph depend upon that act. The power of a court of chancery to control not only the estate, but the person and custody, of infants, is well settled” — citing 2 Story’s Eq. (13 Ed.), sections 1341, 1341a, 1345; 1346; 3 Pomeroy’s Eq. Jur. (2 Ed.), section 1307; Cowls v. Cowls, 8 Ill. (3 Gilman) 435, 44 Am. Dec. 708.
In discussing the jurisdiction of the Chancery court pertaining to its control over minors, Lord Eldon, in English chancery, in the case of Wellesley v. Duke of Beaufort, 2 Russell, 23. says:
*175 “"Wherever the power of law rests with respect to the protection of children, it is clear that it ought to exist somewhere; if it be not in this court, where does it exist? Is it an eligible thing that children of all ranks should be placed in this situation — that they shall be in the custody of the father, although, looking at the quantum of allowance which the law can compel the father to provide for them, they may be regarded as in a state little better than that of starvation? The courts of law can enforce the rights of the father, but they are not equal to the office of enforcing the duties of the father. Those duties have been acknowledged in this his majesty’s court for centuries past. Having thus shortly alluded to some of the cases, and referring to the cases themselves for a more large exposition of the grounds upon which this jurisdiction stands, I repeat that I find myself in this seat humbly representing his majesty, and bound by the settled law of the land. I cannot now retire from the discharge of this duty; I dare not violate the principles which grow out of the practice of the court. My duty is to apply those principles honestly, to look diligently to all the circumstances of the ease, and, with judicial integrity (by which must be always meant an integrity of the purest nature), to determine manfully, and manfully to declare what my opinion is.”
Again, at star page 28 it is said: “I was anxious upon that point for another reason, namely, because, reflecting upon the nature of the jurisdiction as connected with property, it appears to me that whilst the court looks at the duties of the. father, it considers those duties as duties that impose upon him thus much —that if he he himself of ability to maintain the children (be their fortunes what they may), and to provide for them according to their expectations it says, ‘.You shall provide for them out of your own means, and not encroach upon the property of the
In the case of Prather, by next friend v. Prather, 4 Desaus. 33, the South Carolina court was called upon to deal with a situation analogous to the present case. Bill Avas filed in this case by a wife who lived separate from her husband to recover alimony on the ground of ill usage and being turned away by her husband. The defendant demurred to the bill, and the court held that it had jurisdiction and made allowance in proportion to the husband’s-fortune. At page 35 it is said, after setting out the allegations of the bill: ,
“This bill makes a very shocking ease, outrageous to humanity, and disgraceful to civil society. The question then arises: Is there no remedy for such enormous evils? and if there is, where is it to be had? The delicate trust is committed, in the country from whence ecclesiastical courts are the tribunals' to whom this we have borroAved our jurisprudence, though in particular cases the court of equity has interposed to give*177 relief, as shall he more particularly noticed hereafter. But there are no ecclesiastical courts in this country, which can give relief. It is equally clear that the courts of law capnot give any relief. The nature and constitution of those courts, and their forms of proceeding, render it impossible for them to interfere in such case. We are brought, then, to this conclusion — either that these gross injuries must pass without redress, or this court must interpose and give relief. It is shocking to think that such conduct, so inhuman in itself, so injurious to innocent and helpless women, and so mischievous to society, should pass unheeded and unchecked in a civilized country. It is the boast of our jurisprudence that for every wrong there is a remedy, and for every injustice an adequate and salutary redress. But this would be a vain and empty boast, if for such a case as this there was no remedy.”
And at page 38, discussing the wife’s right, the court said:
“She acquires by her marriage, in return for the comfort she brings, the right to maintenance and support, and to a participation in the enjoyment of her husband’s property, according to his degree and situation in life, while she demeans herself correctly; and this right she may exercise in an irregular, unsettled, vexatious manner, by running in debt for necessaries, upon his deserting her, which he would be compelled to pay. But this is a very uncertain method, and full of inconvenience and productive’ of constant litigation. New will trust a woman under such circumstances, when they are sure of not being paid without suits, and the measure is entirely uncertain.”
The same may be said with increased emphasis of the condition of. the helpless children in the present case. New would be willing to trust them with a sufficiency for their comfort, if they must depend upon the result of the suit and the consequent uncertainty of the
“The want of a more specific remedy than can be obtained in the courts of law gives a concurrent jurisdiction to a court of equity in a great variety of cases, as in executory agreements. A court of equity will compel them to be carried into strict execution (unless where it is improper or impossible), instead of giving damages for nonperformance. So, too, in questions that may be tried at law in a great multiplicity of actions. A court of equity assumes a jurisdiction to prevent the expense and vexation of endless litigation and suits. Now, if the court of equity has concurrent jurisdiction with the courts of law,, merely because it can give more ample or complete relief with less litigation, surely it follows that it will be justifiable to interfere where the courts of law can give no relief at all, as is acknowledged in the case under consideration.”
In most of the cases dealing with this subject the suit has been brought by the wife, and generally for moneys or credits expended by her for the support of the children. But manifestly the right of action, whoever may bring it, is rooted in the legal obligation of the father for their support, and it is not a right of the wife as such, but it is the right of the children, and the judgment is made to her as the trustee for their benefit. Many of the cases already cited furnish ample authority for the procedure, and the authorities in this state, which I have already cited, show that children may sue for any right which they have, at least in the equity court.
I proceed now to a consideration of the authorities cited in the majority opinion, the principal of which is Huke v. Huke, 44 Mo. App. 308. The basis of this decision, and the only theory upon which it can be
“By the common law of England a father is not bound to support his infant child, in the sense that the obligation has any legal sanction; no action can he maintained against him, without the aid of statute, to compel him to discharge this natural duty. By that law a father is not liable, as upon an implied contract, to a stranger who furnishes necessaries for the support of his infant child.”
If this statement were true, and if there were no legal obligation on the part of the father to support the child, then the conclusion of the majority would be sound. As is shown above, the overwhelming weight of authority is .against this announcement, and as the majority opinion confesses that there is a legal obligation on the part of the father to support the child, this authority does not sustain the reasoning of that opinion. At pages 313, 314, of 44 Mo. App. the Missouri Court of Appeals said:
“But it is suggested, in argument, that this petition is addressed to the chancery powers of the circuit court, and that the Chancellor of England had, in virtue of a delegated authority from the king as parens patries, or, as was sometimes said, the father of the fatherless, a power to require a father, having the means, to set apart a fund for the support of his indigent minor child. That court has again and again asserted a species of vice regal power over the custody and education of children, in virtue of a delegated authority from the king as parens patries
It is settled that a court of equity of this country and of this state has the power that a court of chancery in England had, and represents the state as parens patries, exercising the same jurisdiction that the English chan
“In the exercise of that jurisdiction it will appear that the English Court of Chancery went so far as to level orders and decrees against parents and guardians residing in foreign countries — in France and America— and that it stood ready to enforce those decrees by imprisoning the defendants in the Fleet, whenever they should set their feet upon the soil in England.”
It will be seen from a careful reading of this opinion that the decision would have been otherwise, had the court recognized the duty of a father as a legal duty, instead of a moral duty. There are only a few states in America that agree that a duty is not a legal duty, and Mississippi is not one of those that consider it a mere moral duty. Legal and moral obligations frequently co-exist. In such cases the courts will enforce the obligation, and it is a legal duty to enforce them, but the courts will not enforce a mere moral duty. This case of Huke v. Huke has been cited by many text-books for the proposition that a child cannot sue a parent, and the text-writers in some of the courts have cited it without referring to the reason underlying the decision, and without pointing out the different results which will flow from a recognition of the duty as a legal one. This is the only case which I have found directly holding that proposition. It ought not to prevail in any jurisdiction recognizing the legal obligation of the pargnt to support the child. The other cases referred to in the majority opinion are not applicable to this suit.
The case of Alling v. Alling, 52 N. J. Eq. 92 et seq., 27 Atl. 655, cited in the majority opinion, in which it was said that a court of chancery has no jurisdiction to compel a parent to support an infant child was a suit brought by the mother against her only child and
“ ‘By begetting them, therefore, they have entered into a voluntary obligation to endeavor, as far as in them lies, that the life which they have bestowed shall be supported and preserved; and thus the children will have a perfect right of receiving maintenance from their parents.’ This duty and this obligation have been variously modified by the positive laws of civilized countries, but fully recognized by all. Connected with this obligation of maintenance there is a parental privilege. The parant is entitled to the custody and care of the child which he sustains, and to such service as it can render, and he has a right to exercise his own discre*182 tion’ in determining the fitness and necessity of the alloAvances to be made, and of the support to be furnished to his children, for Avhich he is to be made chargeable. ’ ’
At page 110, 52 N. J. Eq., and page 662 of 27 Ath, it is said:
“In looking over the account, I find that the* child was maintained in a style AA’hich, in my judgment, was quite beyond her pecuniary expectations, and I cannot approve its payment out of her fortune. If the mother chose to support her in such style, I think she must pay a part of the expense from her oAvn income, Avhich was nearly three times that of the child.”
The case of Finch v. Finch, 22 Conn. 411, referred to in the majority opinion, is a suit by a wife against her husband on a book debt, after divorce, in which he had been awarded the custody of the children. The suit Avas for the entire support and education of such children after such decree has been granted. The court held that the entire account could not be recovered. The majority opinion, at page 421, said:
“It seems to a majority of the court that the sole obligation of supporting the children, which was thrown upon the husband and father by the state of coverture, is essentially changed, or modified, by the dissolution of the marriage; and now their pecuniary condition and ability may be equal or otherwise. The mother may have ample means, and the father none; and in such case, surely, it Avould be inequitable to charge the father with the entire maintenance of the children, while they remain in their mother’s service, and under her exclusive control; and Ave do not believe the common law imposes any such obligation.”
Two of the judges dissented. It is clear from this case that it is not in point here, and does not sustain the holding of the majority.
“The peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court .in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent.. The state, through its criminal laws, will give the minor child protection from parental violence and wrongdoing, and this is all the child can be heard to demand.”
This utterance, as applied to the facts of that case, is a correct pronouncement. The facts show a condition that was very grave facing the parents to control their minor daughter, who was guilty of practices that would bring irreparable wrong and shame to her family. She Avas committed to an insane asylum, and most people would sympathize with the family in the step taken. I apprehend that this court would never hold that a suit by a child against a parent for a permanent injury, willfully and maliciously inflicted, would not lie.
I have a great regard for the distinguished judge who wrote the opinion in Hewlett v. George, Executor, and I cannot bring my mind to believe that he and his distinguished associates would have held that in no condition could a minor child sue a parent. I think that the true rule is that the parent has a right to exercise a reasonable restraint and inflict chastisement for the purpose of correcting a child, and in the discharge of his duties, while acting within the limits of reason, he has the discretion as to what chastisement and the kind of support he will furnish, and is not to be required to maintain his children in luxury and ease even though he may have ample means to do so, and that the parent is the judge, within reasonable
The state will not rely entirely upon criminal law for the protection of children from neglect and maltreatment by parents for several reasons: First, it is wholly inadequate for that purpose. The children are under the control and restraint of the parents, and have not sufficient intelligence and opportunity to set the criminal law in motion or to attend and prosecute. It is contrary to human nature for them to want to prosecute.- It accomplishes nothing for the child, as the placing of parents in jail does not clothe the body, nor satiate the pangs of hunger, nor nourish the body. It does not protect the body from the bleak bites of the wintry winds, nor stay the pangs of starvation. If the parent has to pay a fine, his ability is diminished to that extent. If he is placed in jail, he is not able personally to look after his children, and in either event his resentment is aroused and his anger is en-kindled, and the child will suffer more, instead of less, by trying such remedies. If the remedy at law is inadequate, equity ought to take jurisdiction, and it is one of the maxims both of the common law and of the equity court that no wrong will be allowed without a remedy. See Broom’s Legal Maxims, pp. 191-195; 16 Cyc. 30, 133.
“It is pointed out that ‘actions by children against their parents are not to be encouraged, . . . and a minor child has no right of action against a parent for the tort of the latter. ’ ” -
The majority fails to quote that part of Cyc. which quotes from the case of Bird v. Black, 5 La. Ann. 189, where the court said:
“Suits of children against parents are not to be encouraged, unless to redress clear and palpable injustice.’ ’
I heartily concur in the opinion from Louisiana on .the facts there presented.
* I cannot concur in the holding that the repose of society would be adversely affected by maintaining the suit[in the present case.] Any society that can consent to see children neglected by able parents, and whose repose would not be more disturbed by seeing children starved, maimed, and brutally handled, than it would be by seeing the law make the parent fulfill his duties and obligations to his child, ought not to be tolerated at all. Wlmt philosophy is this now promulgated-which say sfhat suits in chancery will disturb society when criminal prosecutions of parents by children will be when the helpless children are allowed to go hungry and unclothed, their vitality so lowered by starvation and exposure as to make them invalids, unable to perform the functions of citizenship, but, on the contrary, make them a burden, and perhaps a menace, to society? If there be such society in existence it ought to be kicked off the earth, and forced to do its reposing in the abysmal pits of Gehenna, where children do not go^