The opinion of the court was delivered by
This is an action of assumpsit in which the plaintiff seeks to recover for supporting his daughter, Lomyra A., on an alleged contract with the overseer of the poor of the defendant.. The daughter was 23 years old when the suit was brought, and presumably over 18 years old when the claimed contractwas made. It is stated in the exceptions that it appeared that this daughter had from a child been of weak mind and incapable of'exercising any choice or intention in regard to the place of her residence, had always lived with the plaintiff as a part of his family, and during all said time was suffering from such mental disability and infirmity as rendered it necessary that she should remain with and nnder the care, protection and control of her parents, and had never been emancipated. On this state of facts she was incapable of gaining any settlement in her own right. Ryegate v. Wardsboro, 30 Vt. 746. She would take the settlement of her father, though acquired after she reached the age of majority. Hardwick v. Pawlet, 36 Vt. 320; Topsham v. Chelsea, 60 Vt. 219. “Upon the ground of humanity,” as said in the case first cited, she remained a part of the plaintiff’s family after she reached the age of majority as much as she did before, and the same policy which prohibits the separation of the father from his nnemaneipated children for the purposes of support, prohibited the separation of this daughter from the plaintiff for such purpose. An order of removal upon, the plaintiff, with his family and effects, would be operative te remove the daughter with him. Landgrove v. Plymouth, 52 Vt. 503. While, ex necessitate, she remained a member of the family of the plaintiff, he was bound, if of sufficient ability, te support her. When any member of the legally constituted fam
Eor this promise the plaintiff promised to support this daughter, just what and no more than he was legally bound to «do without the defendant’s promise. . That the plaintiff performed his promise adds nothing by way of consideration, because he was legally bound to support the daughter as much before as after he promised the overseer to do so.
Applications of this principle may be found in the following cases: Smith v. Bartholomew et al., 1 Met. 276 (35 Am. Dec. 365) ; Rix v. Adams & Throop, 9 Vt. 233; Ferrell v. Scott, 42 Am. Dec. 371; Keith v. Miles, 39 Miss. 442 (77 Am. Dec. 685); Jones v. Ashburnham, 4 East. 455 ; Hawley v. Farrar, 1 Vt. 420; Barlow v. Smith et al., 4 Vt. 139 ; Statesbury v. Smith, 2 Bunb. 924. It was therefore error for the court to neglect to instruct the jury upon this .branch of the case, as it was one of the vital points in the case as made up. Without taking up the other exceptions in the case,
The judgment is reversed and, cause remanded.