166 CHAPTER II. PARENT AND CHILD. PART III. A LEGITIMATE child is one between whose TIT. I. Who are legitimate children. CAP. II. parents the relation of marriage subsisted at the time of conception or of birth, or at some intervening period. Whether the husband is the real parent of a child born to his wife during the marriage or after the death of the husband, may, however, be open to controversy. But he is presumed to be the parent, unless he was absent for not less than nine calendar months or forty weeks before the birth, or was impotent, or could not have had sexual intercourse with the wife during that period. (See 2 Ste. Com. 291-2; Steer Par. Law, 568; Co. Litt. 123 b. n. 1, 2.) 398. In general, parents are entrusted with the nance, and custody and education of their children, on the natural presumption that the children. will be properly treated, and that due care will be taken of them, in regard to learning, morals, and religion. But whenever this presumption is negatived by the actual state Custody, mainte education of children. of the case, and a father or a mother is guilty of gross ill-treatment of his or her infant child, or is living in gross immorality, or otherwise acts in a manner injurious to the morals or interests of his or her children, the Supreme Court deprives him or her of the custody of his or her children, and appoints a suitable person to act as guardian, if the children have property. (St. § 1341-9; Swift v. Swift, 34 Beav. 266; 4 D. J. S. 710; In re Besant, L. R. 11 Ch. D. (Ap.) 508.) And by the Supreme Court of Judicature Act, 1873, s. 25, clause (10), it is enacted that "in questions relating to the custody and education of infants, the rules of Equity shall prevail." 399. PART III. TIT. I. CAP. II. Parents may be compelled to provide their legitimate children, of whatever age, with necessaries when the children are in poverty, and unable, through infancy, disease, or accident to support themselves. (2 Ste. Com. 296-7.) But a father is not under any legal obligation to educate his child (except so far as he may be compelled under the stat. 33 & 34 Vict. c. 75, s. 74, or any other statute); and he is not liable to pay a debt Children's contracted by his child, even for necessaries, without his authority. (Chit. Con. 144; Macph. 516.) 400. debts. PART III. power over A father is entitled to the custody and CAP. II. control of his children until the age of The father's twenty-one years; and he may correct them his children. While under age, in a reasonable manner; and may delegate his authority to their tutor or schoolmaster. (2 Ste. Com. 299301.) 401. The mother's her chil dren. The mother has no legal power over power over her child in the father's lifetime, at least as against the father, unless delivered into her custody by the Supreme Court. But after the father's death, she is entitled to the custody of the child during minority. (2 Ste. Com. 301; Macq. 174.) 402. Maintenance of parents. Action by parents. The children of poor persons not able to support themselves, must, if of sufficient ability, maintain their parents. (2 Ste. Com. 302.) 403. A parent cannot bring an action for injury done to his child, though the parent may have been put to expenses in getting the child cured, unless the child is old enough to render him some sort of service, however slight, and can be treated in law as his servant at the time (). (Ad. Torts, 697; 3 Ste. Com. 532; Rosc. 589, 590; Thompson v. Ross, 5 Hurl. & Norm. 16; Hedges v. Tagg, L. R. 7 Ex. 283.) And it has been held that even then he cannot bring an action either for loss of service or for the burial expenses, if the injury resulted in the immediate death of the child! Gillett, L. R. 8 Ex. 88.) 404. (Osborn v. Indeed, a parent has no remedy for the seduction of his daughter, even though he may have been put to great expenses in consequence of it, unless the child was living with him, or he had a right to her services, at the time, and by reason of her pregnancy and illness he was deprived of those services to which he had a right. If he had a right to her services, however slight, and without proof of any having been rendered or been likely to be required, an action for damages is maintainable by the parent against the seducer (a), where the pregnancy was caused by him, and the parent was not the indirect cause of the seduction, by introducing her to profligate acquaintances or encouraging improper intimacies. (Ad. Torts, 697-700; Broom Com. 75, 77-8; 3 Ste. Com. 532; Rosc. 589, 590; Terry v. Hutchinson, L. R. 3 Q. B. 599.) 405. (a) The gross injustice of the cases where relief has been withheld from the parent is only equalled by the absurdity of the ground on which, in other cases, relief has been given to him. But the former has given rise to the latter. I PART III. CAP. II. PART III. In estimating, however, the damages to be CAP. II. given for a daughter's seduction, the jury may give the father damages for the disgrace, distress, and anxiety of mind which he has. sustained. (Ad. Torts, 702; Mayne, 284; Rosc. 590; Terry v. Hutchinson, L. R. 3 Q. B. 599.) 406. Custody and maintenance of illegitimate children. The mother of an illegitimate child is entitled to its custody, and is bound to maintain it while she remains single or a widow, or until the child attains the age of sixteen, or gains a settlement in its own right, or, being a female, is married; and if the mother marries, her husband then becomes subject to the same obligation; but this ceases on the mother's death. If, however, the mother, while single or a widow, is not of sufficient ability, she can compel the father to supply a fund for its maintenance until it is thirteen, or, if the justices making the order think fit, until the child is sixteen, and she may take steps for that purpose, even before the child is born. (2 Ste. Com. 302-4; Steer Par. Law, 559, 560, 569; 35 & 36 Vict. c. 65, ss. 3, 4, 5; 36 Vict. c. 9, s. 3.) 407. |