It was indeed formerly held that the moral duty of a parent to support the child was a sufficient consideration for an express promise to repay money laid out by another person in such support. But this ruling was due, not to any misconception of the nature of this relation, but to a temporary extension of the doctrine of consideration beyond its just bounds. Now, it is well settled that, at common law, neither the child nor a third person who has supported the child has any action against the parent for such support, or for damage due to the failure of support. In like manner, the child, even when of full age and abundant means, is not legally liable, at common law, for the support of the parent. Either one may, of course, be liable upon a contract for the support of the other to third persons, with whom the contract may have been made. Such a contract need not be expressed, but may be inferred from facts and circumstances. But it must be actually inferred as a fact; it will not be implied as of law from the relation between them. (Schouler on Domestic Relations, ? 241, and cases; Allen v. Jacobs, 14 Ill. App. 277; Tyler v. Arnold, 47 Mich. 504.) A parent is not liable for the debts or torts of his child as such. The law makes no difference in this respect between the minor child and one of full age. In order to charge the parent, the debt or wrong must be shown to have been his, either as that of a joint wrong-doer or of a master who has given the child, as a servant, power to incur it. The cases in which a father is held liable for maintenance furnished a child, not provided for at home, are better explained upon this principle than from any duty arising from the status. The strongest case is that where a parcnt, having the means to support a child, turns it out of doors without reason and without means. He is then liable for maintenance furnished, as a husband would be for a wife under like circumstances. (40) The legal power of a father-for a mother as such is entitled to no power, page 453. At common law the father's rights were paramount; the mother had none during his life, and few after his death. (Mercein v. People, 25 Wend. 64; 35 Am. Dec. 653; People v. Mercein, 3 Hill, 399; 38 Am. Dec. 644.) But in this country, even at common law, the courts will give custody to the mother as against the father in a proper case (McShan v. McShan, 56 Miss. 413; English v. English, 32 N. J. Eq. 738. Cf. 31 N. J. Eq. 543); and in some States the law puts them on an equality, e. g., Iowa, where both have equal power. In case of great neglect a guardian may be appointed in his lifetime, and custody taken from him. (Heineman's Appeal, 96 Pa. St. 112; 42 Am. Dec. 532.) Neither has an absolute right, even against third persons, though a prima facie one. (McGlennan v. Margowski, 90 Ind. 150.) Grandparents, to whom the child has been given as an infant to bring up, can retain it against the mother (Bonnett v. Bonnett, 61 Iowa, 198; 47 Am. Rep. 810), the father. (Sturtevant v. State, 15 Neb. 459; 48 Am. Rep. 349; Verser v. Ford, 37 Ark. 27. Contra, Re Searritt, 76 Mo. 565; 43 Am. Rep. 768, Henry, J., dissenting.) The aunt may retain it against the father in some cases. (Chapsky v. Wood, 26 Kan. 650; 40 Am. Rep. 321.) (41) In case of divorce in the spiritual court a vinculo matrimonii all the issue born during the coverture are bastards, page 457. The influence of the canon law in introducing the consideration given to good faith, knowledge, etc., is clearly shown in the case of divorce, and its effect upon the legitimacy of the issue. By the common law a divorce bastardized all the issue, as Croke says, in Hil. 18 Edw. IV., pl. 28, fol. 29, 30; but the spiritual law distinguished in cases of divorce for consanguinity between a conscious and unconscious incest, and bastardized only the issue of the former. (Brian, ubi supra, and Catesby, arg. fol. 296.) There the question is treated as an open one, and the difference of common and canon law is clearly recognized; but at a later date the same point is stated without qualification in our law, as Blackstone has stated it here. (Roll. Rep. 212; 14 Vin. 250; Heir, F. 1); and it is doubtless from the influence of the canon law that the French law took the rule mentioned in a former note (40, p. 446), legitimizing children born of a void marriage, which has been copied by the statute law of Virginia and other states. CHAPTER THE SEVENTEENTH. OF GUARDIAN AND WARD. The only general private relation, now remaining to be discussed, is that of guardian and ward [see note 42, page 809]; which bears a very near resemblance to the last, and is plainly derived out of it: the guardian being only a temporary parent; that is, for so long time as the ward is an infant, or under age. In examining this species of relationship, I shall first consider the different kinds of guardians, how they are appointed, and their power and duty; next, the different ages of persons, as defined by the law: and, lastly, the privileges and disabilities of an infant, or one under age and subject to guardianship.* 1. The guardian with us performs the office both of the tutor and curator of the Roman laws; the former of which had the charge of the maintenance and education of the minor, the latter the care of his fortune; or, according to the language of the court of chancery, the tutor was the committee of the person, the curator the committee of the estate. But this office was frequently united in the civil law; as it is always in our law with regard to minors, though as to lunatics and idiots it is commonly kept distinct. [401] Of the several species of guardians, the first are guardians by nature: viz. the father and (in some cases) the mother of the child. † For if an estate be left to an infant, the father is by common law the guardian, and must account to his child for the profits. And, with regard to daughters, it seems by construction of a Ff. 26. 4. 1. b Co. Litt. 88. *Cited, 11 Ga, 610. +-+ Quoted, 20 Ind. 334; 9 Dana, 534. Cited, 31 Conn. 553; 2 Ala. 531; 11 Ala. 42; 8 Fla. 144; 71 Am. Dec. 106. the statute 4 & 5 Ph. & Mar. c. 8. that the father might by deed or will assign a guardian to any woman-child under the age of sixteen; and, if none be so assigned, the mother shall in this case be guardian. There are also guardians for nurture, which are, of course, the father or mother, till the infant attains the age of fourteen years: and in default of father or mother, the ordinary usually assigns some discreet person to take care of the infant's personal estate, and to provide for his maintenance and education. Next are guardians in socage (an appellation which will be fully explained in the second book of these commentaries), who are also called guardians by the common law. These take place only when the minor is entitled to some estate in lands, and then by the common law the guardianship devolves upon his next of kin, to whom the inheritance cannot possibly descend; as, where the estate descended from his father, in this case his uncle by the mother's side cannot possibly inherit this estate, and therefore shall be the guardian. For the law judges it improper to trust the person of an infant in his hands, who may by possibility become heir to him; that there may be no temptation, nor even suspicion of temptation, for him to abuse his trust.h The Roman laws proceed on a quite contrary principle, committing the care of the minor to him who is the next to succeed to the inheritance, presuming that the next heir would take the best care of an estate, to which he has a prospect of succeeding: and this they boast to be ". summa h Nunquam custodia alicujus de jure alicui remanet, de quo habeatur suspicio, quod possit vel velit aliquod jus in ipsa hæreditate clamare. Glanv. 1. 7. c. 11. * Cited, 50 N. H. 508; 6 Conn. 500. |