
    
      ACOSTA vs. ROBIN.
    
    Appeal from the court of the parish and • /* ivt , city ot JNew-Orleans.
    The natural father can’t compel &e mother of a natural child to give up to him the possession of such child,
    There ⅛ no tutorship un-tilth» death of (he father mother'
   Porter, J.

.delivered the opinion of the court. The contest in this case arises out of the conflicting pretensions of the father and mother of a natural child—each claim the right of having the possession and care of The parish judge decided against the petitioner, and he appealed.

The evidence shews that the child was acknowledged by the father, who was a party to the act of baptism, in which he is stated to be such. It is also shewn, that the parties lived for years in a state of concubinage. The defendant has urged that the acknowledgement of the father does not make proof against her This is true, but taking the whole proof in the case, there is little doubt left in our minds, that the petitioner is the father of the child claimed in the petition. Civ. code, 48, art. 27.

Considering him such, the next question is, has he the right ih law to the care of his natural child, in opposition to the mother? This is the first time in our experience that the question has been presented to our courts, but it is not a novel one in our jurisprudence It has been long settled there.

In support of the pretentions of the appellant it has been urged that the father is the natural tutor of his child. But in our judgment there can be no tutor to a child while the hither and mother are alive. The first law of the I6th title of the 6th Partida declares lu-tein, in latin to be that guardianship which is given over minor orphan children, not minors alone, as staled in Moreau ⅜ CarletmCstrans-lation of the law. The words are tutela tanto quiere dicer en latin como guarda en romance, que es dado ¿ otorgada al huérfano libre, menor de catorce anos. The commentators on this law, understand it as confer-, red only for children, who have lost father, or mother, or both. Our code declares tutorship by nature to be the right of the surviving father, or mother, on the dissolution of the marriage by the death of one of them, to be tutor of the children. It contemplates the father to act in another character during the marriage, and ©alls him the administrator of the estate of his minor children*. The opinion of the French commentators on the árdeles of the Napoleon code, which are the same as ours on this subject, is that there is no tutorship until the death of the father or mother. C. code, 58, art. 5 <fc 6⅝ Paillette, on the code Napoleon, art. ¾89, Toullier, rol. 2, liv. I, lit. 10, no. 1090.

The right therefore setup in this instance in behalfofthe father, can derive no support from the Jaws relating to tutorship; if it exist at all, it must be found in that which treats of the paternal power. La patria potestad.

But we are satisfied that i t does not confer any such power on the father of bastard children even when acknowledged by them. It did not do so in Rome, where the authority of parents was carried further than in any other civilised country. The institutes of Justinian declare, that the children whom we have under our power are those which are born in le-gitimalc marriage. The digest has an express provision that natural children cannot be brought under the paternal authority. (Patri , ' am potestatem.) The 2d law of the 17th title of the 4th Partida, provides, that natural children are not in the power of the father as legitimate children are, and the Spanish commentators state their iaw tobe in conformity with this provision. Partidas 4, tit. 17, law 2; Febrero,p. I, cap. 12, §3, no. 17. Institutes lib. 1, lit 9, digest, lb. 1, tit. 8, no. 11 Merlin repertoire, verbo puissance pater-nelle, 343.

The case was argued before us on the provisions of our code alone: we have gone into this examination of the law as it previously stood, to shew more clearly the construction we should put on that provision of our code which declares ‘‘that bastards are not submitted to paternal authority, even where they have been legaliy acknowledgedand believing as we do, that this provision (which is not found in the Napoleon code) was taken from the laws of Spain, Sf introduced in conformity with the doctrine established there, we think there cannot he a doubt that it repels the demand made by the petitioner. Code 56, 59.

Toullier, in commenting on the Napoleon _ code which repealed the civil law, and contains no provision such as that first cited from ours, seems to consider that in tender age the child should be confided to the mother, but that as it advances in life the reasons in favour of her having the possession are not so conclusive. He considers it a question left to the prudenceof the magistrate underall the circumstances of the case, and that the right should be conferred on either father or mother, as the interest pf the minor may dictate. If we had such a discretion, the facts of this case would induce us to prefer the mother.

There is a claim in the petition for one thousand dollars, in case the father cannot get the child: we doubt much whether two such demands can be joined; but admitting they could, the evidence does not authorise judgment in his favour. . .

It is therefore ordered, adjudged, and decreed, that the judgment of the parish court be affirmed with costo.

Rodrigues for the plaintiff—More&t fot the defendant.  