10 Barb. 483 | N.Y. Sup. Ct. | 1851
A parent is under a natural obligation and duty to furnish necessaries for his infant children.
Though stated so broadly, and by such eminent jurists, an examination of the cases, throws doubt upon this position. ¡Reeve was not a very careful writer. He cites 1 Bl. 446, to show that it is a common law duty of parents to support minor children. ¡Blackstone says, this duty is “ a principle of natural law.” (1 Bl. 447.) That “ it is a principle of law, that there is an obligation on every man to provide for those descended from his loins ; and the manner in which this obligation shall be performed is thus pointed tintand immediately refers to the provisions of the statutes on the subject. (Id. 448.) And adds on the next page, “ no person is bound to provide a maintenance for his issue, unless where the children are impotent and unable to work, either through infancy, disease, or accident, and then, is only obliged to_find them with_necessaries, the penalty on refusal being ho more than 20s. a month.” And Mr. Chitty, in his note, (1 Bl. 448 a,) says there is no legal obligation on a
In England, the liability of the parent, stands solely upon ¡ contract. Mr. Chitty, in his work on contracts, says, where a; father gives no authority, and enters into no contract, he is no more liable for goods supplied to his son, than a mere stranger^ would be. (Chit, on Cont. 140, note, Perkins’ ed.) And he is sustained by a strong current of authorities, of which Mortimer v. Wright is a leading ease. (6 M. & W. 482.) There Lord Abinger, C. B. said, “in point of law, a father who gives no authority, and enters into no contract, is no more liable for goods supplied to his son, than a brother, or an uncle, or a mere stranger would be.” And that “ the mere moral obligation on the father to maintain his child, affords no inference of a legal promise to pay his debts.” “ To bind the father in point of law for the debt incurred by his son, you must prove that he has contracted to be bound, just in the same manner as you would prove such a contract against any other person.” And Parke, B. said, a father was under no legal obligation to pay his son’s ' debts, except, indeed, by proceedings under the statute; the , mere moral obligation imposing no legal liability. This cause was decided in 1840, and so was Seaborne v. Maddy, where the same doctrine was laid down at nisi prius by Park, B. (9 C. & P. 497.) And see remarks of Abbott, C. J. in Blackburn v. Mackey, (1 C. & P. 1;) Burrough, J. in Fluck v. Tollemache, (Id. 5;) Gurney, B. in Rolfe v. Abbott, (6 C. & P. 286;) Bing. on Infancy, 87; note to Am. ed.; Gordon v. Potter, (17 Vt. R. 348 ;) Varney v. Young, (11 Id. 260.) Chitty says, his liability in case of desertion is questio vexata. (Chit, on Cont. 142.) And see Urmston v. Newcomen, (4 A. & E. 899.) In Massachusetts, the father is liable to third persons, perhaps, if the child be expelled, but not if he voluntarily leaves to avoid discipline and restraint. (Angell v. McLellan, 16 Mass. 28.) In this state, and probably in all our sister states, as well as in England, the parent may be compelled by statute to support a minor child; and our statute extends to widows. (1 R.S. 614, 615.) The husband is liable, as a general rule, for the debts of
It has been said, that a mother is not entitled to the earnings of her children, (Comm. v. Murray, 4 Binn. 487, citing Wood’s Inst. 64.1 Bl. 453.1 Woodes. L. 451.) And notice must be given by the parent. (Laws of 1850, p. 579.) It would seem, that Blackstone was speaking of her power during coverture. Her power, if any, perhaps should be referred to that of guardian. Though a minor over 14 may choose his own guardian.
It was said on the argument that “-schooling” is not a necessary. And Mr. Chitty says, it seems a parent is not legally bound to educate his child. (Chit, on Cont. 140.) A parent is almost the sole judge of what is necessary. But if a parent is liable to a third person, I hope it will never be decided that sending to a common school, at a suitable season, and to a reasonable extent, is not necessary, in this country. However, this cause does not call for a decision on. that point.
Judgment of the county court and of the justice reversed.