
    1808
    Eunice Stanton against Ebenezer Willson and Benjamin Smith, Executors of the last will and testament of John Bird, deceased. Eunice Stanton, Administratrix on the estate of Joshua Stanton, jun. deceased, against Ebenezer Willson and Benjamin Smith, Executors, &c.
    Husband and •wife were divorced by a decree of the Umotiy"vassal ¾⅞ wasTS be 10 !ieu all claims of dower; and she was constituted sole guardian of two of their infant ehiw-ren; held,that the father was liable for education atidsup-port of such ⅛⅛⅛⅞ the -f^uaof ⅛ and after-wards by a stranger, to Len^i'riS
    Where an infant child elopes from his father for fear of personal violence and abuse, and cannot with safety live with him,' the father is liable for necessary support and education famished to such child by a stranger.
    What articles are necessaries, must depend upon the circumstances of the party for whom they are furnished; and when those circumstances are ascertained, the court will only instruct the jury as to the classes of articles which are to be considered as necessaries.
    Book debt will lie for necessaries furnished to an infant, without a request from the party liable, or a promise to pay for them.
    A wife may be a witness for her husband in an action of book debt, especially aft? Isis death, though the charges accrued in his life-time, . >
    MOTION for a new trial.
    These were actions of book debt for education and support, furnished by the plaintiff, before her intermarriage with Stanton, and by him afterwards, to the children of Bird. As both the cases depend upon the same principles, apd were argued together, it is not necessary ,. ,. . . , . lurther to distinguish them.
    The account produced at the trial consisted of the r , following articles:
    To cash paid Mr. Conklin for his wife’s nursing William, an infant son of said John Bird, from June 1st,
    1797, to Jlfiril 1st, 1798, 43 weeks and three days, at
    1 dollar, - - - - §43 43
    , „ ...... lo paid for extra nursing m his sickness, - 5
    To paid the doctor’s bill for ditto, - 10
    To clothing said William 10 months, - 20
    
      To boarding, clothing and nursing said William from March, 1798, to September, 1803, 6 1-2 years, - - - - - ⅜429 00
    To schooling said William 2 1-2 years at 6 dollars, - is oo
    
    To nursing and clothing William and his sister Maria, from June 1st, 1797, to May 15th, 1798, 49 weeks and 6 days, - - - 74 78
    To extra nursing and doctor’s bill in her last sickness, - - . 20 00
    To boarding and clothing said William from October, 1803, to February, 1806, 117 weeks and 1 day, at two dollars 50 cents, - 292 87
    To two and a half years’ schooling said William, 12 00
    To boarding John Herman Bird, son of said John Bird, from -February, 1805, to February, 1806, 48 weeks and 1 day, - - - 96 30
    To paid for classic books, and tuition at college for the same, - - - - 55 00
    To expense money furnished the same, - 20 00
    In the course of the trial, it appeared, that the plaintiff was married to Bird in October, 1739, and continued to be his lawful wife, until May, 1797, when she was divorced by a decree of the general assembly. By that decree, she was constituted sole guardian of their youngest children, William and Maria, mentioned la the account, until they should respectively attain to the age of twenty-one years, which guardiansnip she accepted. Bird was ordered to pay her, within six months from the 1st of June, 1797, three thousand dollars, as her part and portion of his estate, and in lieu of all claims of dower. This sum was afterwards paid to her satisfaction; and she gave him a written discharge from all claims and demands which she had against him, by virtue of the decree. William and Maria lived with, and under the care of the plaintiff; and their support and education charged in the account were furnished by her, until her intermarriage with Stanton,. in October, 1803, and by him afterwards. Of John Herman, the elder son of Bird and the plaintiff, she was not appointed guardian. He continued with his father several years after the divorce, and then, as the plaintiff contended, and introduced some evidence to prove, eloped from him for fear of personal violence, and went to live with Stanton. After this, Stanton furnished him with the support, tuition, books and money charged in the account. It was agreed, that the whole of the charges accrued withput any request from Bird, and that he had never made any express promise to pay them.
    The plaintiff offered herself as a witness in support of the charges. She was objected to, as incompetent to testify as to such as accrued after her intermarriage with Stanton, on the ground of her relation to him. this objection was overruled; and she was admitted.
    On the merits, the defendants contended, that Bird was not liable to pay Stanton for any part of the account for supporting William and Maria, on the ground that Stanton was not their guardian; and that, if there was any liability, it accrued to Stanton and his wife jointly. But the court decided, and gave it in charge to the jury, that the sole guardianship of the mother was no objection to a recovery by Stanton, inasmuch as the debt accrued solely to him.
    The defendants also contended, that the plaintiff could not recover for any part of the charges relating to John Herman; but the court decided, and gave it in charge to the jury, that if they found that he eloped from his father for fear of personal violence and abuse, and could not with safety live with him, the plaintiff was entitled to recover such sum. for his support and education as they should judge reasonable.
    . The defendants further contended, that upon the facts stated, the action of book debt would not lie; but the court decided, and gave it in charge to the jury, that the action of book debt was the proper remedy.
    The defendants further contended, that by force of the decree of the general assembly, and the discharge of the plaintiff, Bird was not bound by law to support the children; but the court decided, and gave it in charge to the jury, that he was solely liable for their support. •
    On the whole case, the court directed the jury to find for the plaintiff to recover of the defendants such part of the account as was just and reasonable, taking into their consideration the situation and circumstances of the respective parties.
    The jury found for the plaintiff accordingly ; and the defendants moved for a new trial, on the ground that the court mistook the law in admitting the testimony objected to, and in their charge to the jury.
    -V. Smith and Beers, in support of the motion.
    I. One point contended for by the defendants in the superior court, and reserved for the opinion of this court, is, “ that by force of this decree, John Bird was not by law bound to sujifiort the two youngest minor children, viz. WUiiam and Maria, for whom the principal part of the support was furnished.”
    By the decree, recited in the record before us, the vights and powers of the father as guardian are taken away, and placed in the hands of the mother.
    
    
      1st. We contend, in the first place, that the duty to support ceases, when all the rights and powers ol the guardian by nature arc taken away from him, and placed in the hands of a person who, before this, was equally bound to support with him.
    By the law of nature, each of the parents is equally bound to support and educate their offspring. The general expression “ fiarent,” is always used by legal writers, when treating of this natural liability to support children; they do not restrict it to tivs father, oi, mother, alone. 1 Bl. Com. 447.
    To be sure, during the coverture, by the laws oi many countries, the husband and wife are deemed but one person in law. She having no separate rights, and he having the exclusive control and custody of all their property, she can rarely be seen, or known, on this subject of support; but the instant the coverture ceases, she again shows herself: — her liability again appears, and even during the coverture, if you can find her with separate property, she has been held bound to contribute. It has been decided in Great Britain, that where the wife has separate property, and it goes to the husband’s use during the coverture, she may come in as a creditor against his estate to that amount. 2 Atk. 284.
    So where her real estate is mortgaged for Ids debts, Acs estate shall redeem it after his death. But it lias been decided, that her contributions of separate property to the maintenance of the family, do not render her a creditor to his estate. So in case of natural born children, as the father and mother of them have separate rights, and separate property from each other, they are, by tin-laws of most countries, equally bound to contribute for their support, where the father is ascertained and known. And in all cases whore, you can find the father and mother standing ⅛ this situation, they are equally bound to maintain their offspring. -Thus stands the case when the guardianship remains in the ordinary hands.
    But the case before us, is one, where the father, by a legislative act, is totally prohibited the care, custody and guardianship of his children; not only that, but the mother is by this same act constituted and appointed the sole and exclusive guardian till the children attain the age of 21. The same act which has sealed his existence as a husband, has also closed his existence' as a parent and natural guardian.
    But let us suppose all that the gentlemen opposed to us can contend for; suppose that the father alone is generally bound to support after' the coverture is determined by divorce. In these cases, he almost universally remains the guardian of his children. But in the case before the court, he has no control over them; he cannot direct in What manner they shall be supported; no economical mode of his devising or prescribing is to be regarded or followed. /Another person, now a strangér to him in legal contemplation, is to manage affairs in her pwn wdy, expend what she deems proper, and he must silently submit, and pay bills as presented. Surely the laws of Connecticut will not teach us such a doctrine.
    2d. On a fair Construction of this decree, all obligation to support, ceases on the part of John Bird. By this decree, this Woman is not only divorced, and afifiointed guardian to the children, but she has the large and unexampled sum of 3,000 dollars given her out of his'estate.
    The mere act of giving her this large sum of money, if there was nothing else in the case, furnishes strong presumptive evidence enough that it was the. intention of the legislature to give iffor the support of1 the children, as well as for the support of the woman.
    
      It is not given to her merely for life, as in ordinary eases; but it is given to her absolutely, for ever. Nor is it to be set off to her out of his lands, or in any articles of' personal■ firafierty, hut it is ordered to be paid in cash.
    
    Again: when the legislature had their hands in the pockets of John Bird, making provision for this unfortunate woman, can we, for a moment, suppose that they would have been so inattentive and negligent towards these novel sort of orphans, as to have made no provision for them ? Did the legislature forget that they had, at that instant, decreed, that this woman should be the future guardian of these children ; — should have the sole and exclusive custody and control of them ? Could they reflect upon this a moment, without perceiving the necessity of making provision to enable her to discharge the duties thus imposed upon her, in a proper manner ■? Did they mean she should eat bread before them, and give them none ? — No: they knew that they had thrown these children upon the hands of this woman; and hence it was, that they decreed this large sum of money to enable her to support them, as well as herself. Can we believe that they intended, that every time she furnished these children with a meal of victuals, or a garment, that she should pursue John Bird into a foreign state or country; there commence a suit against him; there collect her testimony at a much greater expense than she could ever recover; and thus go through a long course of litigation with him? And so on, repeating the same, from time to time, as often as supplies were furnished them? Never can we impute to a body of men, composed of the collected wisdom of the state, such an unreasonable and foolish intention as this.
    Again: on the face of the decree, there is a declara» tion of the intention of the legislature. It is there de dared, in effect, that this 3,000 dollars shall be appropriated for the nurture and education qf the children, as well as for the sufifiort of the •woman. The decree is in these words, (viz.) “ that the said John Bird shall, within 6 months from the 1st of June, 1799, pay to the said Eunice 3,000 dollars, as her part and portion of the estate of said John, an» in lieu of all claims of dower”
    
    This, then, is given to her for two purposes:
    I st. For ik her part and portion of the estate of said John” and,
    2d. t( In lieu of all claims of dower.”
    Under this last clause of the decree, it then becomes necessary to inquire what is meant by the term dower;— what it is ever given for; — what is the object of it.
    Is dower given for the support of the woman alone ? By no means: it is given for something more; it is for the nurture and education of the children, as well as for her sufifiort. And because the legislature have anticipated it, and ordered it to be paid before the natural death of John Bird, the application of it is not to be changed to a different purpose than that which the law has fixed. It is to be applied to the same use as though he was naturally dead, and it was set out to her as her third part of his estate.
    Whatever may be the idea affixed to the term dower in common hartancc, the true legal signification, as defined by the ablest common law writers, “ is that portion of the husband’s lands, which the wife has, after the husband’s decease, for the sustenance of herself, and for the nurture and education of her children,” Co. Litt. 30. b. 2 Bl. Com. i 29, 130. Jacob's Dictionary, tit. “ Dower.” 
      And this court will, at once, recognise it as a well set-tied rule, that where a technical term of the common ’ . . . . law has acquired a fixed signification* and is used in an - . , . , , . . , act 01 the legislature, such act is to receive the common law construction. 4 Bac. Abr. 647.
    If, then, dower is given for the nurture and education of children, as well as for the support of the wife; and this is given in lieu of that, (though the arrival of if has been hastened by the interposition of the legislature,) it must, of course, follow, that this 3,000 dollars was intended for their support, as well as for that of the woman. And if it is about to be contended, (as it has heretofore,) that the man must have been dead, in order that the idea of dower can apply to the case, it may be answered, that by this sovereign act of the legislature, this man, in contemplation of law, was as effectually dead to all intents and purposes as it respected her', as though he had died a natural death. By this decree, she ceased to have any husband; he ceased to have any wife. Nay, more was effected by this decree than by a natural death of the husband: by a natural death, the children are left guardianless; but here, the same act which terminated his existence as a husband and a guardian, appointed another person guardian to his children. Much less than this kills a man in England: there, by a kind of civil suicide, a man may close his ewn existence, without the aid of a legislative decree. Abjuring the realm, or becoming a monk, terminates a man’s existence as completely, for all civil purposes, as if he had died a tiatural death.
    3d. John Bird cannot be liable, where it appears that the advancements were made without his consent or request, and against his will. It is very evident, from the whole course of proceedings, as far as the record will discover it, that every step from the application for a divorce, down to the death of John Bird, was against his will: and it is stated in the record, that the advancements, which constitute her account, were without any promise or request from him.
    It is a principle well settled in the country from whence we derive our ideas of jurisprudence, that if a wife elopes from her husband, (though not with an adulterer,) and supplies are furnished her against his will, no recovery can be had for them. 2 Stra. 873.
    II. In the next place. Can the plaintiff recover far any part of her account, which is for the support of John Herman Bird, who was not under her guardianship, but under that of his father ?
    
    1st. Whatever might be her claim to a recovery for the other parts of her account, most clearly no part of this class of charges, can, on any principle, be supported.
    It appears, that this child eloped from his father, and went to live with his mother's husband: and it is said, he had fears of personal violence. Whether these fears were well grounded or not, or whether, like all other boys, he did not deserve and expect correction at times, does not appear. But we. apprehend, that the pretended, Imaginary, or even real, fears of a boy, are to be no justification for his eloping. Much less are they sufficient to authorize any stranger (for such was Joshua Stanton) to harbour, provide for, and educate him, at the expense of the father. Otherwise, a father would be placed in a perilous situation; — he would never dare to exercise his parental authority, if upon every look of disapprobation, the child might run away to some stranger, pretend that “ he was afraid of personal violence f and thus authorize the stranger to receive him, and charge the father. It would be constituting a child tbc-sole judge of the propriety of his father’s actions and conduct. It would totally prevent, the father from training up his child in the way he should go.
    
    2d. If any part of these charges are recoverable, that part of them particularly which consists of moneys expended for “ booksj tuition and spending money at col~ lege,” to the amount of 75 dollars, cannot be recovered.
    There is no common or statute law, in Great Britain, or the state of Connecticut, compelling a man of property to educate his children, and particularly at college, They are left by the laws, at their own option, whether they will breed up their children to be ornaments, or disgraces to their family. 1 Bl. Com. 450. 2 Swift’s System, 205. In England, they have certain statutes for the apprenticing of poor children; but no law (says Judge Blackstone) compelling rich men to educate, their children. So in Connecticut, the law has left it to the consciences of parents; and has only made provision for a sufficient degree of learning to prevent their sinking into barbarity ; and that is, by requiring that children learn to read the English tongue well, and to know the laws against capital offences, Undoubtedly, this young-man had received this learning from his father, or we should not have found him in a college immediately after eloping. In Vermont, where this education was bestowed, they have no statute at all on this subject. Whatever, then, is the common law of England, is the law of that state, since their statute adopting the common law. That common law, we have seen, makes no provision on the subject.
    
    III. Another question reserved for the opinion of this court is this; Will the action of book debt lie?
    
    
      We contend, that it will not. We apprehend, that this action wil1 never lie, where the liability arises by mere operation of law. 1
    This is a case of money laid out and expended, by a stranger to, John Bird, for the support and education of his children, contrary to Ms mind and will. No agreement, or request, on his part is pretended. If the action of book debt will lie for this kind of implied agreement, no reason can be shown why it will not lie on every possible kind of implied agreement. If it will lie in the present instance, you may charge on hook money paid under a mistake, or money paid through the deceit ' of another, and recover it back in this form of action. So money paid on a consideration which happens to fail¡ money obtained under a void authority; by extortion, imposition, oppression; or money paid on a note and not applied, might all with equal propriety be charged on book, and recovered back in this action. But it having been so recently settled by this court, in the case of Bradley v. Goodyear, 1 Bay’s Cas. 104. that money paid on a note, and not applied, could not be charged on book, that it will not now be contended forn
    We contend further, that if John Bird was liable to support these children, the plaintiff ought to have preferred her petition to a county court, in conformity to the statute law of this state,
      
       or of the state of Vermont, Where the support was furnished.
    
    The law of nature which applies to this subject, has merely compelled certain relations to support each other, but has not pointed out the mode in which they shall be compelled to do it. Hence we find that in Great Britain, in Connecticut and in Vermont, (where this support was furnished,) the legislature have passed acts declaring what that law of nature is, and pointing out a mode in which this law shall be enforced.
    
    In Connecticut and Vermont the acts are literal copies of each other in this respect; and the manner in which this obligation is to be performed is thus pointed out. The county court of the county where the relieved person dwells, on application by any relation, shall assess what shall be just and reasonable, and the sufficient liable relations shall pay in such manner and proportion as the couit shall adjudge; and that whether Such relations live in that county or not. This assessment liquidates the account. And it is also highly firofier that it should be done there. The judges, who are to determine on the reasonableness of the account, live in the neighbourhood where it is furnished, and are therefore more competent to judge what is reasonable there than a court in the' State of Connecticut or New- York. A sum which might be reasonable in one of these states might not be adjudged so in another.
    But it has been said, and perhaps will be again, that these statutes do not extend to infants who are supported; but merely extend to persons who have once supported themselves and have become poor; of course can reach none but adults.
    
    A few words from Judge Blackstone's Commentaries will set this point at rest. In the 1st vol. p. 449., he observes, that “ no person is bound to provide a maintenance for his issue, unless where the children are impotent, either through infancy, disease or accident.”
    These are comments on the -English statute of 43 of Eliz.,- but it will be found, on comparing our statute with theirs, that in this respect, they are expressed in similar terms.
    IV. Another point is this. We contended in the court below (and it was overruled) that this plaintiff ought not to be admitted to testify, to prove her account., because when the account accrued she was the lawful wife of Joshua Stanton, jun.
    It is not on the ground of an interest which she may have, that we object to the admission of this plaintiff, for in the action of book debt, interest is no objection to the admissibility of a witness; for the parties themselves are invariably admitted, and no persons can be more interested than they are . But it is on the ground of policy that we object. If she can be admitted a witness for him, then she may against him. If she is introduced by him to testify In his favour, and on cross examination she discloses the whole truth, and it proves against him, it will create the most implacable quarrels and dissensions between them, and break in and totally destroy all the happiness of the married state. If she can be introduced by him, she may by others, and thus all the secrets of the family might be drawn out. And it makes no difference that she is not, at the time of testifying, his wife : it is enough to exclude her, that she came by this knowledge at a time when she was liis wife.
    In Great Britain, the exact point which we are contending for, has been judicially decided, in a very recent case, reported in the Appendix to Peake’s Evidence, p. 44. Monroe v. Twisleton. This is also laid down by Mr. Peake as the settled law, in p. 174. of the body of his treatise; though he himself was opposed to the decision at the time it was made.
    
      
      Daggett and Gould, contra,
    I. The first question is, whether Bird was liable for the support of William and Maria Í
    
    The duty of the father to provide for the maintenance of Ms infant children is a principle of natural law, re-cognised and established by the common law. 1 Bl. Comm. 446. 448, 449.; 1 Swift’s Syst. 204. In this case, support was furnished to such children; the articles furnished were necessary and proper; and they were, furnished by a person appointed by law to do it in his stead. His liability, therefore, results conclusively, unless there are peculiar circumstances attending the case, which exonerate him. If he is exonerated at all, it must he by virtue of the decree of the general assembly. By that decree, Bird and the plaintiff were divorced a vinculo matrimonii; she was appointed the guardian-of these children; and was allowed a reasonable sum as alimony from his estate.
    Does the divorce discharge his liability ? There car, be no pretence of it. He is still the father of his children. The relation between them is not impaired, not affected. Their respective rights and duties remain the same. It would be strange, indeed, if a natural duty from A. to B. should be discharged, by dissolving a civil relation between A. and C.
    
    Does the afifiointment of the mother as guardian discharge his liability? As to this question, it makes,no difference whether the guardian be the mother, or any other person. A guardian, as such, is not bound to support. lie is the mere agent, trustee, and committee of the person and estate of bis ward, i Bl. Com. 460.
    
      In chancery, a guardian will be allowed to apply the property of the infant for his support. Com. Dig. tit. Chancery, 3 O. 2. And in this state, he may charge the articles furnished on book, and recover for them, in an action at law. Mills v. St. John, 2 Root, 188. But it is otherwise with regard to a father. He will not be allowed, even in chancery, to apply the property of his child to his support, except where the father is in distressed circumstances. Darley v. Darley, 3 Atk. 399. Hughes v. Hughes, 1 Bro. Chan. Cas. 387. Roach v. Garvan, 1 Ves. 160. Com. Dig. tit. Chancery, 3 O. 1.
    The duty of the father to support his child arises from the relation between them. That relation subsists, notwithstanding the appointment of another person as guardian;
    Does the allowance of alimony discharge his liability ? Why should it ? Because, it is said, it will he presumed to be for the support of children. But whence arises such a presumption l Is alimony never allowed where there are no children ? or where, by the terms of the decree, they are to remain with the father ? Suppose, in this case, the children had died immediately after the plaintiff had received her alimony ; could she be compelled to refund it?
    II. The next question is, whether Bird was liable for the advances made to Herman ?
    
    There is no pretence, huí that Bird was bound to support this child, in some way or other. The objection proceeds on the ground, that the supplies furnished were not necessaries ; axiA that the persons furnishing them had no right to furnish them, and charge them tc Mm.
    
      As to the first part of this objection, it is a sufficient answer, that in determining what are necessaries the situation and circumstances of the parties are to be considered; and the direction of the court to the jury was, to allow such part of the account as was just and reasonable, taking into consideration the situation and circumstances of the parties.
    
    As to the other part, we contend, that if the father turns away his child; or, by cruelty, drives him away; or permits him to be away; he sends a credit with him¿ any one may relieve him on the father’s account, especially a near connection.
    If a husband turns his wife out of doors, he thereby gives “ a tacit assent” to her contracts for necessaries ; or, in other words, he sends with her credit for her reasonable expenses. 1 Pow. Contr. 139. Rawlyns v. Vandyke, 3 Esp. Rep. 251. where the husband of the mother of an infant child had taken the child into his family, and had then left him, it was ruled, that he was liable for necessaries furnished to the child on her contracts. Stone v. Carr, 3 Esp. Rep. 1. In Rawlyns v. Vandyke, just cited, Lord Eldon held, that where the father and mother are separated, and the husband suffers the childreiv to remain with their mother, he thereby constitutes her his agent, and authorizes her to contras, t for necessaries for them. In the principal case, Hire did something more than merely to leave his son Herman without making provision for his support; and something more than to suffer him to go and remain with his mother. Hodges v. Hodges, l Esp. Rep. 441. is perhaps still more strongly in point. In that case, Lord Kenyon ruled, that where a wife’s situation in her husband’s house was rendered unsafe Lorn his cruiRv, or ill treatment, it was equivalent to turning her-out of doors, and he would be liable for necessaries'furnished to her under those circumstances. It is impossible to distinguish the case cited from the principal case as relative .to Herman, except upon a supposition equally absurd and illegal, that a father is under less obligation to support his child than a husband is to support his wife.
    III. The counsel for the defendants contend, that we have misconceived our action. They insist, that we should either have brought indebitatus assumflsii, or made an application to the county court under the statute.
    The reason offered for bringing assumflsii is, that the liability arises by mere operation of law. But book debt also will'lie in many cases, where the promise is an implied one. Indeed, the principal use of this action is support a recovery in such cases. It is very seldom that it is brought where there is an express promise to pay; for a party will not be allowed to prove such a promise by his own oath. Guardians, conservators, &c~ always make their charges on book; and are allowed to support them by their own oaths, and to recover for them in this action. Mills, v. St. John, 2 Soot, 188. .
    .Again ; If A. htobUged to pay the debt of ⅛, wemdmit that book debt lies not, b*it indebitatus assumflsif. . Inhere, as betweqn A. and the. .creditor., pays his, own <ieht; it is money, paid to <:the;^*e af A.j.not to him. But it is otherwhft, yphere gt adyappes .necessaries to,any, oj}p,.On account of who is bound by law to .prop,'ure^them; for, instance,;,to the wife oiB, There, in contemplation ,pf lavy, the neipessaries. are advanced to, B.. ,,
    ¡^(Thp.other ground.of objection to our action is equally «umnatdo-: Before that Abjection .can prevail, it must be shown, not only, that this case is ¡within the statute;, but that ,the s statute furnishes the. only remedy. But we contend,; first, that the statute does not relate to infant 
      children; at any rate, it creates the duty only to adult children ; as to infants, it is only in aid of the common law. It certainly does create the duty as to them; for the obligation to support infant children is a common law duty, enforced by action of common law. 1 Bl, Comm. 446. 448, 449. 1 Swift's Syst. 204. T. Raym. 500, In Simpson v. Robertson, i Esp. Reft. 17. Ford v. Fo-thergili, l Esp. Rep. 211. and Stone v. Carr, 3 Esp. 1. the action was at common law; but the English statute of 43 Eliz. c. 2. is substantially like ours.
    Secondly, the statute extends to those cases only, in which application for future support is made by select-/pen, or some stranger related to the pauper; not where the guardian has furnished support. See sect. 2.
    IV. Another ground, on which a new trial in this case is moved for, is, that the plaintiff was admitted as a witness.
    It is not claimed, that she was incompetent, by reason of interest; for the statute expressly admits those who have the greatest interest. But the ground relied upon is, that to admit a wife to testify in a case in which her husband is interested is opposed to sound policy, as it would disturb family peace. We admit, that the wife can neither» be compelled, nor allowed to testify against her husband. But in this case, let it be observed, that the plaintiff had no husband when she testified ; and that her testimony was not against the interest of him whom she represented, but in favour of it.
    
      
      
        See Chipman’s Rep. 111.
    
    
      
       Tit. 88. c. 1.
    
    
      
      
         Vide Kirby, 156.
    
    
      
      
        Vide stat. Conn. tit. 25, c, t.
    
    
      
      
        Stat, Conn, tit 25. c. t.
    
   By the Court. Smith and Baldwin», Judges,

dissenting. Swift, J. absent. Parents are hound by law to maintain, protect, and educate their legitimate children, during their infancy, or nonage. This duty rests on the father# audit is reasonable it should be so, as the personal estate of the wife, and in her possession at the time of the marriage, becomes the property of the husband, and . , & ,. instantly vests in him.

By the divorce, the relation of husband and wife was destroyed ; but not the relation between Bird and his children. His duty and liability, as to them, remained the same, except so far forth as he was incapacitated, or discharged, by the terms of the decree. This decree takes from him the guardianship of two of his children ; and with it the right, which, as natural guardian, he might otherwise have exercised ; and releases him from those duties only which a guardian, ás such, is bound to perform. This transfer of the guardianship to the plaintiff vested her with powers similar to those of guardians, in other cases; and the appointment of the plaintiff to this trust did not subject her to the maintenance of the children, her wards, any more than a stranger would have been subjected by a like appointment.' By accepting the trust, she became bound to provide for, protect, and educate them, at the expense of Bird, unless the decree of the general assembly has made other adequate 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 lien, 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. ‘ Book 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 qf articles, whichj^y law, are considered as necessaries; but the extent to wMch they have been furnished is a fact to be left to the jury j) 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 •f 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 Herman⅛ 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 rulé that can he 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 he 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 Ms protection, be 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. Th¿ infant Cast oh the world must seek protection and Safety Where it can be found; and where, with more propriety t apply, than to the next friend, nearest relative, and § jape most interested in its safety and happiness? The fatherlijaving 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.

Motion denied»  