§ 136. If the father be in a state of separation from his wife and allow his child to live with her, he impliedly constitntes his infant child, would be liable for necessaries, did not arise exactly, because the child was left with relations who were able to support him, and whom the father understood to undertake to do so. Under these circumstances it was held, that the father having reasonable grounds to suppose the child provided for, was not liable; but the court declined to give an opinion as to what the law would be in case of utter desertion without any-such circumstances. See Maule v. Maule, 1 Wils. & Shaw, 266. In 1 Black. Comm. 449, it is said, " 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 in refusal being no more than 20s. a month." The liability there alluded to is, however, to Stat. 43 Eliz. ch. 2, § 7, and it was argued in this case of Urmston v. Newcomen, that the existence of the statute showed an absence of common law liability. Sir John Campbell, in this connection, said, "By the common law, if a child perish for want of proper care, it is murder in the person neglecting it." Lord Denman added, "If the person has the actual custody,"- and Patteson, J., said, " or the child be part of his family. Would it be murder in a parent to abscond ? " her his agent to supply the child with necessaries.1 And this would be especially the case, where the father has a right to provision, which, by the terms of that decree, she is bound to apply. This is not the case here. The sum allowed was directed to be paid to her as her part and portion of Bird's estate, and in lieu of all claims of dower.
"Articles furnished by a guardian for the necessary support, maintenance, and education of his ward, or by others at his request, are proper articles to be charged on book. Booh debt is the proper action; and the party is, by statute, in this action, made a competent witness. What articles are to be considered as necessaries must depend, in some measure, on the circumstances of the party for whom they are furnished. The court can only instruct the jury as to the classes of articles, which, by law, are considered as necessaries, but the quantity, or extent to which they have been furnished is a fact to be left to the jury; and to what amount they shall be allowed must depend on their discretion. It may be generally true, that minors under the government of parents cannot bind their parents for necessaries without their consent. The danger of encouraging children in idleness and disobedience, and of their being inveigled into expense by the artful and designing, furnishes a sufficient reason for the rule; but neither the rule nor the reasoning will apply to the charges in respect to two of the children in this case. The articles were furnished by the guardian herself, or at her request; who, in virtue of her trust, had full power to contract, and make the father liable for necessaries, not only without but against his consent.
"With respect to the charges on account of Herman's support, if it is admitted, that ' he eloped from his father for fear of personal violence and abuse, and could not with safety live with him,' every reason for the rule that can be given, ceased to operate. Protection and obedience are relative duties; and when the wisdom that should guide the infant is lost in delirium, and the arm that should protect, and the hand that should feed him, is lifted for his destruction; obedience is no longer a duty, and the child cannot with any propriety be said to be under the government of a father. But because the father has abandoned his duty and trust, by putting the child out of his protection, he cannot thereby exonerate himself from its maintenance, education, and support. The duty remains, and the law will enforce its performance, or there must be a failure of justice. The infant cast on the world must seek protection and safety where it can be found; and where, with more propriety can it apply, than to the next friend, nearest relative, and such as are most interested in its safety and happiness ? The father having forced his child abroad to seek-a sustenance under such circumstances, sends a credit along with him, and shall not be permitted to say it was furnished without his consent, or against his will." See Kelley v. Davis, 49 N. H. 187 (1870).
But see Gordon v. Potter, 17 Vt. 350, where the contrary doctrine is held. In this case Redfield, J., said: " It is obvious that it [the law] makes the child.1 But this is not true if the wife be living in adultery.2 So, also, where, in the absence of her husband, a wife contracted for the board of her daughter, who was a minor, at a particular place, and the child stayed there for a certain time, no provision for strangers to furnish children with necessaries, against the will of parents, even in extreme cases. For if it can be done in extreme cases, it can in every case, where the necessity exists; and the right of a parent to control his own child will depend altogether upon his furnishing necessaries, suitable to the varying taste of the times. There is no stopping place short of this, if any interference whatever is allowed. If the parent abandons the child to destitution, the public authorities may interfere, and in the mode pointed out by statute, compel a proper maintenance. But this, according to the English common law, which prevails in this State, is not the right of every intermeddling stranger."The same doctrine is held in Raymond v. Loyl, 10 Barb. 483, that there is no legal obligation on a parent to maintain his child independent of statute. See also Hunt v. Thompson, 3 Scam. 180; Varney v. Young, 11 Vt. 258; Chilcott v. Trimble, 13 Barb. 502; Kelley v. Davis, 49 N. H. 187 (1870), reviewing the cases on this subject. But in Dennis v. Clark, 2 Cush. 352, Metcalf, J., said: " By the common law of Massachusetts, and without reference to any statute, a father, if of sufficient ability, is as much bound to support and provide for his infant children, in sickness and in health, as a husband is bound, by the same law and by the common law of England, to support and provide for his wife. 2 Mass. 115, 419. Now, it is clearly the law of England, as well as of this Commonwealth, that if a husband desert his wife, or wrongfully expel her from his house, and make no provision for her support, a person who furnishes her with necessary supplies may compel the husband, by an action at law, to pay for such supplies. And our law is the same, we have no doubt, in the case of a father who deserts or wrongfully discards his infant children. In England, however, the liability of a father, in such case, is matter of doubt, depending, it seems, upon another question equally doubtful; namely, whether he is bound, by the common law, to maintain his infant children. Urmston v. Newcomen, 6 Nev. & Man. 454, and 4 Ad. & El. 899. That was an action against a father to recover pay for boarding, clothing, etc, his infant daughter. The court held, upon the facts of the case, that the father was not liable to the action. But they declined to give an opinion upon ' the general question, whether, by the common law, a parent is bound to maintain his deserted legitimate child.' Coleridge, J., said that his opinion was, that a parent was not so bound. 6 Nev. & Man. 466. Neither of the other judges intimated an opinion on the question. See Cro. Eliz. 849; O. Bridgm. 257; 4 East, 84; 6 M. & W. 488; 9 C. & P. 497." See also Owen v. White, 5 Porter, 435. In the matter of, Ryder, 11 Paige, 187.