Baldwin v. Foster

Holmes, J. There was evidence that the defendant’s wife left him without cause, taking their child with her ; that the defendant was able and willing to furnish the child with a suitable [453] home, and to support it; that he notified his wife and the plaintiff that he was so able and willing; and that, when he was absent from the State, he arranged to have his letters forwarded so that he could always be reached through the mail. If this evidence was believed, there was no ground of necessity or implied authority on which the wife could pledge the defendant’s credit to the plaintiff. Dodge v. Adams, 19 Pick. 429. Hancock v. Merrick, 10 Cush. 41. Reynolds v. Sweetser, 15 Gray, 78, 81. See Angel v. McLellan, 16 Mass. 28. In Bazeley v. Border, L. R. 3 Q. B. 559, it was conceded that a wife had no power to charge her husband for the support of a child, unless she was living apart from him justifiably, and her power to do it in that case was put on the ground that the reasonable expenses of the child were part of her reasonable expenses. But assuming it to be true, as laid down in several more or less considered dicta, that the law of Massachusetts imposes a duty upon a father to support his children, and that, when he wrongfully turns wife and children out of doors, his liability for the latter arises out of that duty, (Reynolds v. Sweetser, ubi supra, and Brow v. Brightman, 136 Mass. 187, 188,) still all the cases cited show very plainly that, when the wife leaves without cause, taking her child with her, the fact that her husband does not attempt to compel her to give up the custody of the child does not of itself authorize her to bind him for its support. The contrary suggestion to the jury in Rawlyns v. Vandyke, 3 Esp. 250, 252, was made in a case where the husband was regarded as substantially in the position of having turned his wife away, and at a time when fathers had an absolute right to the custody of their children, and could obtain possession of their persons by habeas corpus. Under our statutes, the rights of the father and mother, in the absence of misconduct, are equal, and the happiness and welfare of the children determine their possession. Pub. Sts. e. 147, § 36; c. 146, § 32. See Dumain v. Gwynne, 10 Allen, 270, 272. The rulings requested by the plaintiff were wrong, and the instructions given were sufficiently favorable for him. See, further, Kelley v. Davis, 49 N. H. 187. Exceptions overruled.