II. RELATIVE, &c. were going on, though, if no such original decree of alimony CHAP. II. had been made, the payments might have been considered voluntary ; and in the latter case, a Court of Law and jury might inquire and determine whether or not the payments were suf- wife. ficient in proportion to the husband's means. (u) A married woman also may acquire beneficial interests in property quite independently of her husband, by the intervention of trustees, either before or after marriage; and in that case, in a Court of Equity, she is considered in respect of that property as a feme sole, so that she may by her contract (considered as an appointment of the property) charge it; and it is settled, that if a married woman give a bond or bill for a debt of her own, or of her husband or other person, her separate property will be liable in equity to pay it ; (v) though at law she can in no case be sued upon a contract entered into by her during coverture, unless her husband be civiliter mortuus, as where he has been transported; (w) though, if after the death of her husband, she expressly promise to pay, in consideration of forbearance of a suit against her in respect of her separate estate, she might be sued upon such promise even at law. (x) In general, every contract made with, or security given to a married woman, vests in her husband, and he may sue alone to enforce the contract; (y) but if a note be given to a married woman as administratrix, even by her husband and others, then, after her husband's death, she may sue the latter. (≈) If a gift or legacy, whether specific or otherwise, be given to a married woman "for her own use, and at her own disposal," without other words, this vests the beneficial interest separately in her; (a) and, in these cases, if no other trustee be appointed, a Court of Equity will treat the husband merely as a trustee, and compel him to act accordingly. 1. Husband and child. The rights between parent and child result only from legal 2. Parent and marriage, though, in some cases, as in that of a marriage between persons too nearly related, the children are legitimate, unless the marriage be decreed void by the Spiritual Court during the joint lives of the parents. (b) In general, it is a settled rule, that a child born before marriage, whether in Scotland or England, does not become legitimate by subsequent (u) 1 Bar. & Adolp. 801, 802. (v) 17 Ves. J. 366; 1 Bro. P. C. 16; 3 Madd. R. 387; Bingham v. Jones, at Rolls, A. D. 1832; Chitty on Bills, 8 ed. 791; 4 Russ. R. 112. (w) 8 T. R. 515. (r)5 Taunt. 362; 1Bar. & Adolp. 811. (:) 2 Bar. & Adolp. 447. (a) 1 Turner and Russel's R. 222. 440. &c. 2. Parent and child. CHAP. II. marriage of the parents, so as to enable such child to inherit II. RELATIVE, lands in England; (c) and the term "child," in a deed or will without other words, is always considered as confined to "legitimate children." (d) And, therefore, although an illegitimate child has been expressly named and described in a will as "Elizabeth, the daughter of A. B.," yet if a subsequent independent bequest of the residue to all the children of A. B. generally, without expressly repeating the name of such illegitimate child, she could not take any part of the residue. (e) Hence the necessity for great care in bequests to illegitimate children, very distinctly to designate the precise objects, and also to provide for the maintenance of such children until they attain full age. For legal purposes, registers of marriages, births, christenings, and deaths, are not essential in trial; and important only to assist in evidence in case of future discussion, whether or not the event has taken place; and they are only receivable in evidence when made by recognized authority; and it has been held, that the entry of the birth of a dissenter's child, in a register kept for that purpose at a public library, is not evidence; and entries in the Fleet books are not received except as declarations, nor an entry in the register of an ambassador's chapel; and Lord Kenyon is said to have rejected a register of baptism in Guernsey, on the ground of the ecclesiastical jurisdiction not extending to that island. (ƒ) Shortly after the birth of a child, it is expedient, though not legally necessary, to register in the parish books the time and place of its birth and name, and sometimes the particular additions of his parents, and to have two or more young and disinterested relations to write their names, attesting the truth of the entry; to which, for purposes of pedigree, resort may afterwards be had in evidence. But such entry in the parish books will not be in general allowed, unless a regular christening has taken place, upon which certain fees are paid, and which may be one reason why the production of the entry made by proper authority, or of a verified copy, may be received as primâ facie evidence of a (c) 4 Wils. & Shaw, 289; 5 Bar. & Cres. 438. The attempt to alter this rule gave rise to the celebrated declaration of the Barons, "Nolimus leges Angliæ mutari." (d) 1 Russ. & Myl. 581; Harris v. Lloyd, 1 Turner & R. 313, 314, where the Chancellor said, "I have not the least doubt that this testator by the words 'all and every the child and children of my son, S. H.,' meant his illegitimate children; but I am clearly of opinion, that there is not enough upon the face of the will to authorize me to carry that intention into effect." And see 5 Vesey, 530. (e) 1 Russ. & Mylne, 581; but see Wilkinson v. Adams, 1 Vesey and Beames, 469; and see Harris v. Lloyd, 1 Turn. & Russ. 310. (f) Ex parte Taylor, 1 Jac. & W. 483, and cases there cited. CHAP. II. II. RELATIVE, &c. 2. Parent and regular christening having taken place at the time therein of a child. A father has such an interest in the person of his child, Defence, &c. that at any age he may justify his defence even by forcible means. (k) He has a right to the custody of his infant son and daughter, and may legally retake them, and may have an habeas corpus to restore such custody, () and may support trespass for taking him away, or detaining or injuring him, or debauching his female child whilst generally resident with him per quod servitium amisit, (m) but not in respect of the mere parental right; (n) and for merely taking away or injuring a child, no action can be supported, unless it occasion an actual loss to the parent, for in strictness no damages are recoverable in any case for an injury merely to parental feelings; (o) and yet it has been held to be no ground for a new trial that the judge, in an action for debauching a daughter, admitted evidence of a promise of marriage, though such proof probably increased the verdict, without evidence of any real greater damage to the parent in the character of master. (p) So the taking away a daughter under the age of sixteen, (9) or the stealing of a child under the age of ten years, (r) are punishable, the former as a misdemeanor, the latter as a felony. (A) 3 Stark. Rep. 63; 5 Bar. & Cres. (1) 4 Mooie, 366; 7 East, 579. (n) 4 Bar. & Cres. 660; 3 Bla. C. 140, note (28), and 143, note (50). (0) Flemington v. Smithers, 2 Car. & P. 292; 4 B. & Cres. 660; 7 Dowl. & R. 133, S. C. (p) 3 Wils. 18. (q) 9 Geo. 4, c. 31, s. 20, ante, 40. CHAP. II. The parent has also in general a right to direct and controul II. RELATIVE, the education and care of his child, as to compel him to receive &c. 2. Parent and child. Controul over parents. his education at a particular school or college, and to delegate that care to other proper persons, and a Court of Equity will lend its aid so as to enforce obedience; (s) and it is an established doctrine that a parent may justify the correction of his child either corporally or by confinement; and a schoolmaster, under whose care and instruction a parent has placed his child, may equally justify similar correction. (t) But the correction must be moderate, and in a proper manner. (u) At law the judges will, upon an habeas corpus, interfere when the father has been guilty of cruelty or personal ill usage to his child, but unless there is some circumstance of that nature, the judges at law will not interfere. (x) But in Courts of Equity, especially upon a bill filed, or where a suit is pending in that court, a much more extensive jurisdiction and control over parents exists and is exercised. Such jurisdiction has long been exercised, but was not finally established until the recent decision in the House of Lords, by which it was settled that the Chancellor may not only controul the father's power over, but even his intercourse with his children, in all cases where, in the exercise of his sound discretion, he thinks it essential for the interests of the infant that he should so interfere; as where the parent is guilty of gross immoral conduct, and inculcating bad principles into his child. (y) The King is the parens patria, and the Chancellor representing him has jurisdiction over the care of every infant in the kingdom, although, as it has been judicially observed, the Court of Chancery only, in fact, exercises jurisdiction over infants having property, because the court has not funds of which it could take upon itself the maintenance of all the children in the kingdom. (2) Nor is the exercise of this essential jurisdiction limited to instances in which the conduct of the parent has been cruel or immoral; it is also exercised in cases in which their general education or their pecuniary interests are concerned. (a) And such regulations may be imposed as, under each particular case, may be (s) 1 P. Wms. 702; 2 P. Wms. 117; 4 Bro. C. C. 101, post. (t) Com. Dig. Pleader, 3 M. 19; Hawk. c. 60, s. 23, and c. 62, s. 2,-ch. 29, s. 5. See valuable observations of Dr. Johnson on the right of a schoolmaster to correct his pupil, upon which Boswell made an able argument in the House of Lords in defence of his client, in Boswell's Life of Johnson. But a master has no right to flog a choir boy of a cathedral for (u) Id. ibid. (r) See 1 Jacob's Rep. 254, note (¿). (y) Wellesley v. Wellesley, and Wellesley v. Duke of Beaufort, 1 Dow. Rep. New S. 154; 2 Bligh's Rep. New S. 124; 2 Russ. R. 1; 2 Simon's R. 35; 1 Jacob's R. 245. (z) Per Lord Chancellor, in Wellesley v. Duke of Beaufort, 2 Russ. R. 21. (a) 1 Jacob's R. 245, 254, 264, note (b). best for the interests of the child, without unnecessarily inter- CHAP. II. fering with the paternal rights of the parent. (b) II. RELATIVE, &c. 2. Parent and Where a father applied to the Court of Chancery, praying that his three female children, aged nineteen, fourteen, and child. twelve, might be delivered up to him by an aunt, who was guardian of their fortunes, under the will of their grandmother, with a discretionary trust for their maintenance, and with whom he had permitted them to reside for a long time, the court under the circumstances refused the application, although there was nothing established against the moral conduct of the father; but it appearing that his situation was such that he could not educate the children in a manner suitable to the property which they derived from the bounty of their grandmother. (c) With respect to the mode of exercising this jurisdiction, although the Chancellor may have jurisdiction upon a writ of habeas corpus, yet it is preferable to proceed by petition, or to constitute the infant a ward of court. (d) maintenance, If the father withhold maintenance, a magistrate may make Compelling an order of maintenance, observance of which may be enforced, &c. or the violation punished by indictment; (e) and if a father withhold proper necessaries from his infant child incapable of supporting itself, he might be indicted for his neglect at common law. (f) But the mother, whilst her husband is living, could not be indicted, because she is not legally bound to provide necessaries. (g) And no action for necessaries can be sustained against a parent (as it may against a husband) unless there has been a contract to pay it, (h) which, however, is usually inferred upon very slight evidence. Where proper maintenance and education are withheld by a parent from a child in the higher ranks of society, the only efficient remedy is by application to the Court of Chancery. (i) children. Gifts, bequests, or devises to infants by relations or friends, Donations to are too frequently made quite independently of the controul of the parents, and even without any condition, and hence the demoralization of so many young men, who at too youthful an age are induced to consider themselves independent of their parents, and so far from being influenced by their moral injunctions, (b) 1 Jacob's R. 245, 254, 264, note (b), where see several instances of particular modifications. (e) Lyons v. Blenkin, 1 Jacob's R. 245. (d) Id. 254, note (b). (e) 43 Eliz. c. 2, s. 7; Burn's J. Poor; 1 Russ. R. 23. (f) Rer v. Friend and wife, Russ. & Ry. C. C. 20; Rer v. Ridley, 2 Campb. VOL. I. |