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When the wife, even before these statutes, had a separate estate, and intended to charge it, the charge might be enforced in equity, subject to the question as to her power to charge, under the settlement or other instrument by which she held it. In such case there could be no judgment against her personally, no execution on which she could be taken, for that would violate her husband's rights (Reeve), and no remedy against general or after-acquired property. The only enforcement was by bill in equity against her (and her husband as a formal party) as on a right in rem. (2 Kent Com. 164; Reeve's Domestic Relations, 164; Adams' Equity, 45; Story on Equity Jurisprudence, 1400; 1 Bright on H. & W. 254.) Hollis v. Francois, 5 Tex. 195; 51 Am. Dec. 750, note page 768, shows the general rule; but a different one in Texas.

It is now held, that under the statutes giving all married women a separate estate in property taken from others than their husbands, the charge need not be an express one. The execution of a bond, bill, or note is enough to presume such an intent. There need not be even a formal promise. (Dobbin v. Hubbard, 17 Ark. 189; 65 Am. Dec. 425; Coats v. Robinson, 10 Mo. 760; Jarman v. Wilkenson, 7 Mon. B. 293; Leaycraft v. Hedden, 4 N. J. Eq. 512; Boarman v. Groves, 23 Miss. 280.) It may be created by buying on credit the property to be charged with the debt, she having no other personal estate (Cashman v. Henry, 75 N. Y. 103), or by buying supplies for her family, including the husband (Tremeyer v. Tarnquest, 85 N. Y. 516), though not by buying for her husband's sole use in business or otherwise. Sed contra many cases hold that the estate could not be made liable by implication. The charge must be express. In Dickson v. Miller, 11 Smedes & M. 504; 49 Am. Dec. 71, with note, a wife's debt for necessaries furnished her while sole and an infant was sustained as such a charge, without noticing the difference

between the husband's absolute liability for her debts in that case, as stated in the clearest terms by Blackstone, "for he has adopted her and her circumstances together" (p. 443), and his liability by her agency in post-nuptial debts.

It has been held that a note constituting a valid charge on a separate estate may be sued in New York, and judgment rendered as if the wife were sole. It is unnecessary to allude to the coverture or separate estate. They can be set up in the answer, if a defense. “The judgment is properly the same in form and effect as if she were unmarried." (Earl, C., in Smith v. Dunning, 61 N. Y. 249; Corn Exch. Ins. Co. v. Babcock, 42 N. Y. 593; 1 Am. Rep. 603; Bodine v. Hilleen, 53 N. Y. 93; Yale v. Dederer, ubi infra; Frecking v. Rolland, 53 N. Y. 422.) This goes far beyond the doctrine of the separate estate in equity courts, and the rulings in mcst of the other states, even on the most liberal statutes in favor of married women. It places the wife's contract substantially on the same footing with her husband's. The cases where such a charge (not express) is implied have been summed up in New York thus, in Manhattan B. & M. Co. v. Thompson, 58 N. Y. 80: (1) When created in a trade or business of the wife. (Frecking v. Rolland, 53 N. Y. 422.) (2) When the contract relates to or is made for the benefit of the separate estate. (36 N. Y. 600; 37 N. Y. 35.) (3) Where the intention is expressed in the contract or instrument by which the liability is created. (Yale v. Dederer, 18 N. Y. 265; 22 N. Y. 450; 68 N. Y. 332.) The last is a leading case on the subject, and was before the court of appeals three times.

CHAPTER THE SIXTEENTH.

OF PARENT AND CHILD.

The next, and the most universal relation in nature, is immediately derived from the preceding, being that between parent and child.

Children are of two sorts; legitimate and spurious [see note 37, page 793], or bastards: each of which we shall consider in their order; and first of legitimate children.

I. A legitimate child is he that is born in lawful wedlock, or within a competent time afterwards. "Pater est quem nuptiæ demonstrant," is the rule of the civil law; and this holds with the civilians, whether the nuptials happen before, or after, the birth of the child. With us in England the rule is narrowed, for the nuptials must be precedent to the birth* [see note 38, page 793]; of which more will be said when we come to consider the case of bastardy. At present let us inquire into, 1. The legal duties of parents to their legitimate children. 2. Their power over them. 3. The duties of such children to their parents.†

1. And, first, the duties of parents, to legitimate children which principally consist in three particulars; their maintenance, their protection, and their education.‡

[447] The duty of parents to provide for the maintenance of their children, is a principle of natural law; an obligation, says Puffendorf, laid on them not only by nature itself, but by their own proper act, in bringing them into the world: for they would be in the highest manner injurious to their issue, if they only gave their

a Ff. 2. 4. 5.

b L. of N. 1. 4. c. 11.
**Quoted, 28 S. C. 69.

+ Cited, 2 Dutch. 391.

‡ Cited, 11 Ga. 610.

с

children life, that they might afterwards see them perish. By begetting them therefore, they have entered into a voluntary obligation, to endeavour, 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.* [See note 39, page 795.] And the president Montesquieu has a very just observation upon this head: that the establishment of marriage in all civilized states is built on this natural obligation of the father to provide for his children; for that ascertains and makes known the person who is bound to fulfil this obligation; whereas, in promiscuous and illicit conjunctions, the father is unknown; and the mother finds a thousand obstacles in her way;-shame, remorse, the constraint of her sex, and the rigor of laws; -that stifle her inclinations to perform this duty: and besides, she generally wants ability.

The municipal laws of all well-regulated states have taken care to enforce this duty: though providence has done it more effectually than any laws, by implanting in the breast of every parent that natural sopyn, or insuperable degree of affection, which not even the deformity of person or mind, not even the wickedness, ingratitude, and rebellion of children, can totally suppress or extinguish.

The civil law obliges the parent to provide maintenance for his child; and, if he refuses, “judex de ea re cognoscet." Nay, it carries this matter so far, that it will not suffer a parent at his death totally to disinherit his child, without expressly giving [448] his reason for so doing; and there are fourteen such reasons reckoned up, which may justify such disinherison. If the parc Sp. L. b. 23. c. 2.

d Ff. 25. 3. 5.

e Nov. 115.

-* Quoted with omissions, 49 N. H. 188, 189; 22 Conn. 415. Cited, 2 Fla. 362; 6 Ark. 57.

ent alleged no reason, or a bad, or 5a5 false one, the child might set the will aside, tanquam testamentum inofficiosum, a testament contrary to the natural duty of the parent. And it is remarkable under what colour the children were to move for relief in such a case: by suggesting that the parent had lost the use of his reason, when he made the inofficious testament. And this, as Puffendorf observes, was not to bring into dispute the testator's power of disinheriting his own offspring; but to examine the motives upon which he did it: and, if they were found defective in reason, then to set them aside. But perhaps this is going rather too far: every man has, or ought to have, by the laws of society, a power over his own property: and, as Grotius very well distinguishes,& natural right obliges to give a necessary maintenance to children; but what is more than that they have no other right to, than as it is given them by the favour of their parents, or the positive constitutions of the municipal law.

Let us next see what provision our own laws have made for this natural duty. 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 out.i *The father, and mother, grandfather, and grandmother of poor impotent persons shall maintain them at their own charges, if of sufficient ability, according as the quarter sessions shall direct:* and* if a parent runs away, and leaves his children, the church-wardens and overseers of the parish shall seise his rents, goods, and chattels, and dispose of them fl. 4. c. 11. 7.

gde. j. b. & p. l. 2. c. 7. n. 3.

h Raym. 500.

1 Stat. 43 Eliz. c. 2.

k Stat. 5 Geo. I. c. 8.

**Quoted, 22 Conn. 416; 5 Kan. 50. Cited, 50 N. H. 505; 2 Dutch.

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