1 Rawlyns v. Vandyke, 3 Esq. 250, 252; Rumney v. Keyes, 7 N. H. 571.
1 The King v. Greenhill, 4 Ad. & El. 624.
2 Atkyns v. Pearce, 2 C. B. (n. s.) 763 (1857).
§ 137. Where the child voluntarily leaves the father, the latter would not be responsible for any debts unless his authorization and assent were distinctly proved,2 or unless, perhaps, in cases of absolute necessity in so far as to prevent the child from perishing. A fortiori the father would not be liable in such cases, where it appears that the child was able to support himself, and actually did earn enough to pay for strict necessaries.3
§ 138. The term "necessaries" as relating to the liability of the father, receives a much more strict and limited construction, than when it relates to the child - and the father without his assent express or implied, would never be liable for any thing but absolute necessaries; and if a father give a son a reasonable allowance, he would not be liable even for things strictly necessary.1
1 Forsyth v. Milne, Sitt. after M. T. 1808, K. B., cited in Chitty on Cont. 147; Paley on Principal and Agent, 120, note 2. See also Bryan v. Jackson, 4 Conn. 288; McKenzie v. Stevens, 19 Ala. 691; Thayer v. White, 12 Met. 343.
2 Angel v. M'Lellan, 16 Mass. 28.
3 See Weeks v. Merrow, 40 Me. 151. In Rolfe v. Abbott, 6 C. & P. 286, the defendant's son, who was nineteen years of age and had a situation worth £90 a year, ordered clothes of a tailor who sent the bill to the father. Gurney, J., said to the jury: " The question in this case is, whether these clothes were supplied to the son of the defendant by the assent of the defendant. For, to charge him, it is essential that the goods should have been supplied with his assent, or by his authority: Indeed, if the law were not so, any one of you who had an imprudent son might have bills to a large amount at the tailor's, the hatter's, the shoemaker's, and the hosier's, and you know nothing at all about it." In Blackburn v. Mackey, 1 C. & P. 1, the defendant's son was a minor living away from his father as a clerk in London, and receiving a guinea a week as wages. The father did not supply him with clothes, and being greatly in need of them, he bought them, and suit was brought to recover their price of the father. But Abbott, C. J., told the jury that " a father was not bound to pay for articles ordered by his son, unless he had given some authority, express or implied." See also Baker v. Keen, 2 Stark. 501.
§ 139. Again, if a person adopt the relationship of a father, or hold out the child as being his own, he will be liable in like manner as if it were truly his child, although it be illegitimate, or although it be the child of other persons.2 But a father-in-law is not, at the common law, bound to maintain his wife's children by a former marriage, unless he take them into his house, and assume the character of parent, or adopt them as his own.3 But if he educate and support them, he cannot recover a remuneration therefor, unless there be an express promise to repay him.4
§ 140. Whether, the father being dead, the mother is liable for the support of her infant children, does not seem to be entirely settled, but the inclination of authority is against her liability.5 At all events, it is well established that the mother could, in no case, be liable to the same extent as the father for the maintenance of the child.6
§ 141. The legal obligation of the father to pay for the maintenance and support of the children, does not seem to be annulled by the fact that the child has an independent property of his own,7 although, generally, courts of equity incline to appropriate to the maintenance of the child the income of his own property;1 and where the father is without means to educate and support his children, courts of equity will always make a prospective allowance for such purpose out of the property of the children.2
1 Crantz v. Gill, 2 Esp. 471.
2 Hesketh v. Gowing, 5 Esp. 131; Cameron v. Baker, 1 C. & P. 268; Nichole v. Allen, 3 C. & P. 36.
3 Tubb v. Harrison, 4 T. R. 118; Cooper v. Martin, 4 East, 76; Stone v. Carr, 3 Esp. 1; Freto v. Brown, 4 Mass. 675; Minden v. Cox, 7 Cow. 235. This is made otherwise by Statute of 4 & 5 Will. IV. ch. 76, § 57, in England.
4 Pelly v. Rawlins, Peake, Ad. Cas. 226; Cooper v. Martin, 4 East, 76; Williams v. Hutchinson, 5 Barb. 122; Grossman v. Lauber, 29 Ind. 618 (1868).
5 Tilton v. Russell, 11 Ala. 497 ; Pray v. Gorham, 31 Me. 241; Raymond v. Loyl, 10 Barb. 483; Commonwealth v. Murray, 4 Binn. 487, are against the obligation of the mother. But see contra, Benson v. Remington, 2 Mass. 113; Nightingale v. Withington, 15 Mass. 274; Hughes v. Hughes, 1 Bro. C. C. 387; Matthewson v. Perry, 37 Conn. 435 (1870) ; Simpson w. Buck, 5 Lans. 337 (1871). See cases cited note 1, ante, p. 143.
6 Ibid.; Dawes v. Howard, 4 Mass. 97; In the matter of Ryder, 11 Paige, 185; Buckley v. Howard, 35 Tex. 565 (1872).
7 Dawes v. Howard, 4 Mass 97; In the matter of Kane, 2 Barb. Ch. 375.
§ 142. In consideration of this obligation on the part of the father to maintain his children, the law gives him a right to all their earnings;3 and in case of his death the mother has the right.4 But whenever this obligation fails, the right fails likewise; and if the children support themselves, or their maintenance is from their own property, or if they live with their mother when separated from the father, the father will not be entitled to their earnings.5 So, also, the father may relinquish his claim to the earnings of his child, by emancipating him, or by contract with those for whom he works, allowing them to pay the child the wages for his labor, or by any act importing an intention to abandon all claim thereto.6
§ 143. An infant must sue by guardian, or prochein ami.7 And if he have a guardian, he may, with his consent, sue by the prochein ami;1 but he can only defend by guardian.2 The prochein ami is not, however, to be considered as a party to the suit, but merely as an attorney, having power to prosecute the right of the infant, but not to do any act to his injury, such as to release or compromise his suit.3 Payment to him, without ratification by the infant, is therefore no satisfaction of a recovery;4 and the suit may be compromised and dismissed without his consent.5 His power over the subject-matter commences with the suit, and if a previous demand were necessary to perfect the cause of action, he cannot maintain it.6