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PPEAL from Court of Chancery; Bird, vice-chan. cellor.

"Lastly. All the rest and residue of my estate, of any and every form, kind and description whatsoever, I hereby give, devise and bequeath, under the name of The Hutchins' Fund,' to Henry George, the wellknown author of Progress and Poverty,' his heirs, executors and administrators, in sacred trust, for the express purpose of 'spreading the light' on social and political liberty and justice in these United States of America, by means of the gratuitous, wise, efficient and economically conducted distribution all over the land of said George's publications on the all-important land question, and cognate subjects, including his 'Progress and Poverty,' his replies to the criticisms thereon, his 'Problems of the Times,' and any other of his books and pamphlets which he may think it wise and proper to gratuitously distribute in this country: provided, first, that said George, his heirs, executors and administrators shall regularly furnish true annual reports of the management and disbursement of the said 'Hutchins' Fund' to the paper called The Irish World and the American Industrial Liberator, or its acknowledged successor, and shall also annually mail, or otherwise send, a copy of said paper, containing such annual report, to each of the following persons, to-wit: my aforementioned wife, Mary Hutchins, now of this place, William S. Wood, now of Parker, county of Randolph, State of Indiana, and James Hutchins, now of Selma, county of Delaware, and State of Indiana; and provided, second, that said George, his heirs, executors and administrators, shall cause to be inserted or printed, opposite the title page of every free copy of his books distributed by means of this fund, this, my solemn request, virtually, to-wit, that each recipient shall read it, and then circulate it among such neighbors or other persons as in his best judg ment will make the best use of it. In testimony whereof I have hereunto set my hand and seal, and publish and declare this to be my last will and testament, in the presence of the witnesses named below, this eighth day of September, in the year one thousand eight hundred and eighty-three. George Hutchins. [L. S.]"

classes. The testator's direction is that the property designated by him shall "constitute a sacred trust, for the express purpose of spreading the light on social and political liberty and justice in these United States of America." That such a purpose is a charitable use, according to the legal import of those terms, is selfevident, in view of the present state of the decisions on that subject. Consequently, if there be any illegality in this testamentary disposition, of necessity, it must reside in the methods contrived by the testator for the fulfillment of such legitimate purpose. Those methods are described by the testator in these words, viz. "The gratuitous, wise, efficient and economically conducted distribution all over the land of said George's publications on the all-important land question, and cognate subjects, including his Progress and Poverty,' his replies to criticisms thereon, his 'Problems of the Times,' and any other of his books and pamphlets which he may think it wise and proper to gratuitously distribute in this country." It is now urged that the doctrines taught in the works thus designated are of such a character that the court will not permit their dissemination. The inquiry thus started should be preceded by a consideration of the rule or test applicable in such affairs. It is plain that such rule has but little to do with the ordinary canons of criticism. For present purposes the scientific or literary value of these works are not to enter into the account. If I should say that I have concluded, which is the truth, that these works of Mr. George have greatly elucidated and enriched, in many ways, the subjects of which they treat, and that they are very valuable contributions to the science of economics, it would not be shown that a step had been taken in the path of present duty. It is not to be doubted that the public circulation, by virtue of a charitable use, of the works of Sir Robert Filmer, which maintain the divine right of kings, would be entitled to the judicial imprimatur equally with a treatise on government under the signature of John Locke. It matters not in the least to the judicial inquiry whether the instrumentalities appointed by the donor to fulfill his purpose be good or bad, fit or unfit; whether they be the best possible, or the worst possible. In this particular the largest discretion resides, and properly resides, in the creator of

John T. Woodhull and Samuel W. Belden, for appel- the trust. These public benefactions are properly relant.

Geo. A. Vroom and C. V. D. Joline, for respondents.

BEASLEY, C. J. This is an executor's bill, seeking a judicial exposition of the last will which he is called upon to execute. The instrument in question was executed by one George Hutchins, whose domicile, at the time of his death, was in this State. It is dated 28th day of February, 1887, and it contains a residuary clause, that is set forth at large in the statement of facts prefacing this opinion. In that clause the testator has set apart property to be devoted to the propagation of certain designated works, as will hereafter appear, and the question propounded to this court is whether such testamentary disposition is to be established as a charitable use.

It is familiar learning, that from the enumeration of certain subjects in the statute of Elizabeth, and from the judicial expositions of that act, there have been evolved certain defined classes of testamentary gifts that are now universally admitted to be, in the estimation of the law, charitable uses. With regard to such classes, debate and doubt have ceased, and consequently all examination of the grounds upon which such classification has been justified would, at the present time, be profitless, and nothing better than empty pedantry; for it is obvious that the instance now before this court belongs, so far as the testamentary intent is concerned, to one of such established

garded as matters of great interest to the community; as entitled to the most favorable reception by the courts, and to their amplest protection. It is not surprising therefore that it has heretofore been understood that the entire restriction imposed by the law on such donations is that comprised in a single sentence: "The writings to be circulated must not be, when considered with respect to their purpose and general tendency, hostile to religion, to law or to morals." The rule, in this definite form, in my opinion, has been by repeated adjudications thoroughly established; and the only difficulty inherent in the subject is to properly select the writings to which it is applicable.

Regarding, then, this principle of proscription as settled, the question arises, has it been applied by the vice-chancellor in the present instance? It has not been, and could not be, reasonably alleged that the writings now in question are either sacrilegious or immoral; but the argument proceeds exclusively on the theory that the doctrines they teach are antagonistic to the law. It was urged that this was the case, by reason of the hypothesis of this author respecting the title to land. The view on that subject expressed by Mr. George is that the earth belongs to mankind, and is a heritage that is inalienable, and that, consequently, one generation, or a series of generations, of men, cannot, either by act or omission, debar a succeeding generation from claiming its own. The doctrine therefore inculcated is that no private absolute

conclusion would be the opposite of that which he has arrived at. I cannot perceive for what reason the testator's scheme was designed to be educational with respect to an important branch of legal and economie science, and in his opinion the circulation of the works of Mr. George would contribute to the accomplishment of that purpose; therefore, viewing the subject from the standpoint suggested, I could not, in the line of judicial duty, have sanctioned a principle, that while it would repress the dissemination of the writ ings of Mr. George, would undoubtedly lend its aid to the circulation of the reply of the Duke of Argyle, on the ground that the former are aggressive toward the legal establishment in question, while the monograph of the latter tends on that subject to quietism and public acquiescence. In such a situation, if I had possessed the power, I should not only have sanctioned. but have favored, the propagation of any or all of these works, in the conviction that such discussions advance the cause, not of error, but of truth. If there

adopted by the vice-chancellor, I should have been obliged to dissent from his conclusion.

But, waiving such considerations, let us turn to the question how far the principle of decision under criticism will stand the touch of judicial authority. It is incompatible with judicial position to aid, if invested with such power, in the circulation of the works of a learned and ingenious man, putting under examination and discussion any part of the legal system. It would not seem to me that, as a judge, I was called upon to discard the use of means in the development of the law, which in every other science are regarded as absolute essentials. With respect to all intellectual creations, embracing, of course, laws and judicial institutions, the most potent of all forces tending to im provement and evolution are those of examination and discussion; and, recognizing them as the motive agents of progress, I should, very confidently, have concluded that it was neither proper nor becoming in me, as a judge, to refuse to this testator the right to use them in this instance. According to the theory in

ownership in land can rightfully exist; the consequence being that the public, as the real proprietor, has the right to regain possession of all property of this nature by the use of any legal method. The decree appealed from avoids the charitable use attempted to be created, and the principle of decision is thus stated in the opinion pronounced. The vice-chancellor says: "Clearly, the author, in these passages, not only condemns existing laws, but denounces the fact that the title to land in private individuals is secure as robbery as a crime. It is this aspect of the case which leads me to the conclusion that the court ought to refuse its aid in enforcing the provisions of this will. Whatever might be the rights of the individual author, in the discussions of such questions in the abstract, it certainly would not become the court to aid in the distribution of literature which denounces as robbery as a crime-an immense proportion of the judicial determinations of the higher courts. This would not be charitable. Society has constituted courts for the purpose of assisting in the administra-fore I were to accept the principle of judgment tion of the law, and in the preservation of the rights of citizens, and of the public welfare; but I can conceive of nothing more autagonistic to such purpose than for the courts to encourage, by their decrees, the dissemination of doctrines which may educate the people to the belief that the great body of the laws which such courts administer concerning titles to land have no other principle for their basis than robbery." | A single glance at the rule of judgment here propounded will suffice to show that it is one of entire novelty. It does not appear to have been suggested, or even alluded to, in any former consideration of the subject. Stripped of unnecessary terms, in its ultimate analysis it promulges this far-reaching principle: that a court of law will not, in view of the purposes for which it was instituted, lend its aid by its decree to the agitation of the question whether the laws which it is in the habit of executing have or have not any better foundation than wrong and injustice. In this analysis I have of course disregarded the presence of the term "robbery " in the foregoing quotation that gives the ratio decidendi in the court below, be-dicated, and, in some degree, expounded, in the begincause I am well aware that the learned vice-chancellor did not put his judgment, either in whole or in part, upon a mere epithet or turn of phrase. I have also put, in a general form, the judicial proposition, because it would be manifestly absurd to declare that the courts will not assist in providing for a discussion of the existing title to land, but that such refusal does not extend to the discussion, in a similar way, of the title to personalty and personal rights. It seems inevitable that the proposed principle of judgment must be applicable to the whole field of established law, if it be applicable to any part of it. And before leaving this formula, that embraces the ground of decision in the court below, it is important to observe that its expressions convey the idea that all that the court does, or is required to do, in these instances, is to refuse to aid in the circulation of the writings that are impugned; but that in this respect they are misleading, for what the court does is to adjudge that it is not permissible for any person to make provision for such circulation. The decree in this case frustrated the will of this testator, declared his trust void, and diverted the property invested in it in other directions. It would seem therefore that the rule in question should have been, and, if it is to be adopted, must be, thus formulated: that a court of equity will not permit the fulfillment of a testamentary use that is designed to circulate works that call in question any of the funda

mental rules and establishments of the law.

The vice-chancellor educes this principle from a consideration of the functions and constitution of judicial tribunals; and if I were to stand on that ground, and indulge in speculation, it must be confessed that my

ning of this opinion, it is attempted to be shown, that on such occasions as the present, the index expurgatorius to be applied by the court is formed on the prin ciple that only such works are to be proscribed as manifestly tend to violations of law, or to the corrup tion of morals or religion. To this catalogue the court below, as has appeared, added a class comprising such writings as a court, from its iuberent nature, could not properly or becomingly aid in circulating. It is evi dent that this extension of the rule will not harmonize with any of the adjudged cases. A reference to two of such authorities will be a sufficient illustration. Both of these decisions are cited in the briefs of counsel, and are referred to in the opinion of the vice-chan. cellor without hostile comment.

The first to which attention will be called is that of Thornton v. Howe, 31 Beav. 14. It was a case embrac ing a charitable use, and the words of the bequest were, "to propagate the writings of Joanna South. cote." The argument took place before Sir John Romilly, who, upon looking into the works in question, found that their authoress was under the delusion that she was with child by the Holy Ghost; that she had conversations with the devil, and inter-communings with the spiritual world. In view of these things the master of the rolls said: "I have found much that, in my opinion, is very foolish, but nothing which is likely to make persons who read them either immoral or irreligious. I cannot therefore say that this devise of the testatrix is invalid by reason of the tendency of the writings of Joanna Southcote." And afterward his further declaration is: "But if the tendency were not immoral, and although this court might consider

the opinions sought to be propagated foolish, or even devoid of foundation, it would not on that account declare it void, or take it out of the class of legacies which are included in the general terms, charitable bequests.'" It needs no comment to show that this decision is irreconcilable with the rule upon which the present case has been decided. The master of the rolls, concluding that the tendency of the works was not immoral or irreligious, assented to their circulation, although he was satisfied that the doctrines taught by them were foolish and without foundation.

The second authority to which I shall refer is that of Jackson v. Phillips, reported in 14 Allen, 539. This controversy also related to a charitable use; the bequest being of a fund, to trustees, to be expended, at their discretion, in such sums, at such times, and such places as they deem best, for the preparation and circulation of books, newspapers, the delivery of speeches, lectures, and such other means as in their judgment will create a public sentiment that will put an end to negro slavery in this country." The decision of the court, in its own language, was: "The bequest itself manifests its immediate purpose to be to educate the whole people upou the sin of a man's holding his fellow-man in bondage; and its ultimate object -to put an end to negro slavery in the United States -in either aspect, a lawful charity." It is conspicuous that this decision is diametrically opposed to the rule under criticism. In the present case the decision was that the court would not help in the circulation of books that strove to show that private ownership in lands, the validity of which had been repeatedly recognized by the courts, had no better foundation than robbery. In the reported case, the court helped the dissemination of writings whose object was to prove that the ownership of human beings, which was a species of property established by the Federal Constitution itself, and sustained as such by repeated judgments both in the National and State courts, had no better foundation than sin. The legal rule imposing limits on charitable uses is one of great importance; and, influenced by that consideration, I have examined with care the principle upon which the present case has been decided, and my conclusion is that such principle does not consist with the authorities, and, if it were adopted by this court, would be productive of serious mischief. If sanctioned, the subject, with respect to the rights of donors in this field, would be involved in clouds and darkness, for instead of a rule we would have a speculation. By force of the prevalence of such a change, it may well be doubted whether it would not be altogether impracticable to disseminate, by means of a charitable use, the works of any of the leading political economists, either of the present or past age; for it is believed that none can be found that do not, in material particulars, make war, more or less aggressive, upon some parts of every legal system as it now subsists. Certain it is that neither the Political Economy of Mr. Mill, nor the Social Status of Mr. Herbert Spencer, could be so circulated, for each of these very distinguished writers denies the lawfulness of private ownership in land. A principle bearing such fruits could not properly be introduced into our legal system, except upon the compulsion of irresistible authority.

It is obvious that, by the application of the ordinary test, and which, it has been thus insisted, is, and always has been, the legal test, the works now in question do not come under the proscription of the law. It has been heretofore stated that they do not tend to the corruption of morals or religion, and it is equally evident that they are not opposed to any legal rule or ordinance. What these writings are calculated and were intended to effect is to cause the repeal, in a legiti mate mode, of the laws at present regulating the title to land, and the substitution of a different system. It

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PPEAL from Circuit Court, Posey county. William F. Parrett, judge.

Ernest Dale Owen, for appellant.

E. M. Spencer and Hovey & Menzies, for appellee.

MITCHELL, C. J. The judgment from which this appeal is prosecuted was entered against the plaintiff below upon substantially the following facts, which appear in the pleadings: Margaret Ramsey, having been theretofore lawfully joined in marriage with John L. Ramsay, obtained a divorce from him at the March Term of the Posey Circuit Court, in 1878. She was pregnant at the time with a child, begotten by her husband in wedlock, which was born shortly after the decree dissolving her marriage with the defendant was pronounced. As a part of the decree the wife was awarded $300 as alimony, but notwithstanding the fact of her pregnancy was averred in the complaint for divorce, there was no order concerning the future custody or support of the expectant child. Living apart from her former husband, and possessed of no means of support except her earnings, the divorced wife assumed the custody of, and furnished the necessary support for, the child, without any request or promise from the father, who was possessed of sufficient means for its support and education. Having thus supported the child until it was nine years old, she instituted this suit against the father to recover for the maintenance and support of his child.

The question is whether, upon the facts stated, a recovery should have been allowed. The argument in favor of a reversal is predicated upon the proposition "that a father is bound for the necessaries furnished his minor child, and is bound to whomsoever shall keep and maintain his child during the first years of life, when it is helpless to provide for itself." As sustaining this proposition the following decisions are relied on: Haase v. Roehrscheid, 6 Ind. 66; Wallace v. Ellis, 42 id. 582; Kinsey v. State, 98 id. 351. Two of the cases cited bold, in effect, that a father who is guardian of his minor child will not be allowed to assert a claim against the estate of his ward for its support, unless it is affirmatively shown that he was unable to furnish suitable support and education out of his own private means. As a reason for the ruling in those cases it is said, that by the common law, it is made the duty of parents to support their minor children, at least while they are incapable of supporting themselves. The correctness of the ruling in the cases cited cannot be doubted. In the other case nothing more is decided than that a father who is ready, able and willing to support his minor children at home cannot

be held liable to another who, without his assent, supports them abroad. This decision affords scant support to the appellant's position. While it is true beyond any question that the common law enjoins upon parents the duty of protecting, educating and maintaining their children, it is also true, that in the absence of statutes, the common law never afforded any means of enforcing this obligation. In the language of Lord Eldon in Wellesley v. Duke of Beaufort, 2 Russ. 3-23: "The courts of law can enforce the rights of the father, but they are not equal to the office of enforcing the duties of the father." The duty of the father to protect, educate and support his tender infant child, for whose being he is responsible, is not only a plain precept of universal law and natural justice, but is enjoined by the positive teachings of the Christian religion.

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However clear and imperative the duty, or sacred the obligation, of parental support, it is open to serious consideration whether it does not fall within that class of imperfect obligations or moral duties, the enforcement of which, according to the common law, it was deemed wise to leave to the impulses of natural affection, rather than that it should be committed to unrestrained regulation in the courts. The delicate parental duty which requires of a child submission to reasonable restraint, and demands habits of propriety, obedience and conformity to domestic discipline, may induce a minor to abandon his father's home, rather than submit to what may seem to the parents proper discipline, and necessary restraints of the household. It would be intolerable if any one who should choose to furnish a minor necessaries, under all circumstances, could compel the father to answer to a court or jury concerning the propriety of the family discipline. If this were allowed, a child impatient of parental authority might be incited to set at naught all reasonable domestic control by holding over his father's head the alternative of allowing him his way at home, or of paying for his support abroad. Accordingly, it has been said no one shall take it upon him to dictate to a parent what clothing the child shall wear, at what time it shall be purchased, or of whom. All that must be left to the discretion of the father or mother." Bainbridge v. Pickering, 2 W. Bl. 1325. It is therefore the settled rule of law in England, as well as in this country, that however derelict a father may have been in the discharge of his parental duty, he is under no legal obligation, in the absence of statutory enactment, to remunerate one who may have furnished necessaries or afforded relief to his minor child, unless either an express promise to pay, or circumstances from which such a promise may be implied, can be shown. Gotts v. Clark, 78 Ill. 229; McMillen v. Lee, id. 443; Freeman v. Robinson, 38 N. J. Law, 383; Hunt v. Thompson, 3 Scam. 180; Gordon v. Potter, 17 Vt. 348; Varney v. Young, 11 id. 258; French v. Benton, 44 N. H. 30; Townsend v. Burnham, 33 id. 277; Raymond v. Loyl, 10 Barb. 483; Blackburn v. Mackey, 1 Car. & P. 1. See Schouler Dom. Rel., § 241, and notes; Tyler Inf., §§ 190, 191. Thus in Kelly v. Davis, 49 N. H. 187, where a father had been guilty of a palpable omission of duty in turning his son adrift upon the world, with little education or ability to take care of himself, it was held in an elaborate opinion, in which the authorities were fully reviewed, that the father was not liable to one who had furnished him with necessaries, in the absence of a contract, express or implied. In that case the court declared the conclusion that a parent cannot be charged for necessaries furnished by a stranger for his minor child, except upon a promise to pay for them, and that such promise is not to be implied from mere moral obligation. *But the omission of duty from which a jury may find a promise by implication of law must be a legal duty, capable of enforcement by process of law."

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The further conclusion was declared that it would be a question for the jury in each case, taking into consideration all the circumstances connected with the parent's neglect, as indicating his intention, views and purposes with regard to the wants of the child, whether or not the facts were sufficient to warrant the fiuding of a promise, express or implied. Quoting from Chitty, this court said, in Hollingsworth v. Swedenborg, 49 Ind. 378: "Though, independently of an express contract, or one implied from particular facts, a father cannot be sued for the price of necessaries provided for his infant son, yet very slight circumstances will suffice to justify a jury in finding a contract on his part." So in Shelton v. Springett, 20 Eng. Law & Eq. 281, it was held that a father is not liable on a contract made by his minor child, even for necessaries furnished, unless an actual authority be proved, or the circumstances be sufficient to imply one. In Mortimore v. Wright, 6 Mees. & W. 482, Lord Abinger, C. B., declared that "in point of law, a father who gives no authority, and enters into no contract, is no more liable for goods sup plied to his son than a brother or an nucle or a mere stranger would be;" and he said further that "the mere moral obligation on the father to maintain his child affords no inference of a legal promise to pay his debts." On the other hand, it has sometimes been said, where a parent fails to discharge the natural obligation resting upon him, by neglecting to provide necessaries for his infant children, that any other person who supplies them will be deemed to have conferred a benefit upon the delinquent parent, for which the law raises an implied promise on his part to make compensation. Van Valkinburgh v. Watson, 13 Johns. 480; Reynolds v. Sweetser, 15 Gray, 78.

While we should hesitate to declare that a father is not in any sense under a legal, as well as a moral, obligation to nurture and maintain his minor child during the tender years of infancy and helplessness, we do give full recognition to the rule, which lies at the foundation of all the cases, that the right of a third person to recover, who has discharged the obligation of the father, and supplied his offspring with neces saries which he neglected to furnish, must in every instance be predicated upon a contract, express or implied. White v. Mann, 110 Iud. 74; Horn v. Eberhart, 17 id. 118: Wiggins v. Keizer, 6 id. 252; Schouler Dom. Rel., § 241. It would be futile as well as hurtful to attempt, by any general statement, to lay down a rule, or otherwise describe the circumstances under which the law would imply a promise on the part of a father to pay for necessaries supplied by another to his minor child. Surely it would be safe, on the other hand, to say, if a father should purposely abandon his child, or cast it out helpless upon the world, under such circum. stances that but for the intervention of another the life or health of the infant would be imperiled, the parent would not be heard to say that he did not come under an implied obligation to pay for doing that which it was his duty to do. On the other hand, if a minor child, who had reached years of discretion, should abandon the parental roof, even though it were with the consent of his parents, in order to escape domestic discipline or parental restraint, it could not reasonably be inferred that he carried with him, by legal implication, the right to pledge his father's credit for support. Weeks v. Merrow, 40 Me. 151; Angel v. McLellan, 16 Mass. 27. Slight evidence may sometimes warrant the inference that a contract for the infant's necessities is sanctioned by the father, and the evidence of a contract may grow out of an infinite variety of circumstances. A relation which the law recognizes as contractual may arise between parties in three ways: (1) The terms of the agreement may have been uttered, avowed or expressed at the time it was made, in which an express contract results. (2) Circumstances may have arisen, or acts may have been done, which

according to the dictates of reason aud justice, and the ordinary course of dealing, or the common understanding of men, show a mutual intention to contract, in which case an implied contract arises. Day v. Caton, 119 Mass. 513; Add. Cont. 23; 3 Am. & Eng. Cyclop. Law, 861. (3) There may have been no intention to contract at all, and yet one may have come under a legal duty to another of such a character that the law precludes him from asserting that he did not agree to perform it, and thus, by fiction of law, a contract results by construction or implication. Hertzog v. Hertzog, 29 Peun. St. 465. Implied or constructive contracts of this latter class are similar to the constructive trusts of courts of equity. They arise out of a state of facts from which the law alone, contrary to the intention of the parties, produces the obligation by compulsion or "by force of natural equity." People v. Speir, 77 N. Y. 144-151; Wright v. Moody, 116 Ind. 175. It is, of course, plain enough that there was no express contract in the present case to pay for the support of the child. It seems equally plain, from all the circumstances, that there was no mutual intention on the part of the father and mother that the latter should be compensated for the support of the child. When the marital relation was dissolved the mother, by the decree of nature, was the necessary custodian of the child, and it was then certain that she must remain its custodian (until it should arrive at an age when maternal care was no longer indispensable. Possibly, if she had offered then, or at any subsequent time, to surrender the child to the custody of the father, and he had refused to accept it, the law might have implied a promise to pay for its future support. The mother chose however to indulge the better instincts of her nature, and keep her child. While she retains the custody and society of the child, unless she does so in consequence of the refusal of the father, the law will not imply a mutual intention to make or receive compensation for its support. The right to the custody and services of the child, and the obligation to support and educate, are reciprocal rights and obligations, unless otherwise fixed by judicial decree. Husband v. Husband, 67 Ind. 583; Johnston v. Onsted, (Mich.) 42 N. W. Rep. 62; Schouler Dom. Rel., § 237; 2 Bish. Mar. & Div., § 557.

It does not appear that the husband was absent from the State or neighborhood in which the mother and child lived, or that he refused, or would have been permitted voluntarily, to take the custody and support of the child. All that appears is that the mother voluntarily retained the custody, and maintained and supported it without let or hindrance, aud without any request, from the father. Where a parent supports a child or a child a parent, the law refers the motive which induced the support to the relationship and affection consequent thereon, and will not imply a promise to pay, or infer a mutual intention to make or receive compensation. Wright v. McLarinan, 92 Ind. 103; Davis v. Davis, 85 id. 157; Fitler v. Fitler, 33 Penn. St. 50; Fross' Appeal, 105 id. 258. Services which are intended to be gratuitous at the time they are rendered cannot afterward be used as the basis of an implied promise to pay for them. Potter v. Carpenter, 76 N. Y. 157; Society v. Wolpert, 80 Ky. 86. Ordinarily where a wife with an infant child is driven from the husband's house by his cruelty or misconduct, she may pledge his credit for the child's necessaries, as well as her own, while he permits it to remain with her, but she can exercise no such agency after she is divorced. Schouler Dom. Rel. 324. After a decree of divorce, either with or without an order for the custody of the children, there is no implied obligation on the part of the father to pay for support voluntarily furnished by the mother to the children, while she asserts and maintains the right to their custody and society, unless the father has in some way manifested

his purpose to abandon them, or has refused to take them into his custody and render them proper support. Hancock v, Merrick, 10 Cush. 41. After a wife is divorced she occupies the same relation to her husband in respect to her common-law right to recover for necessaries furnished his children as any other strauger. Her right to recover must rest upon a contract, express or implied. The facts in the present case fall far short of showing an implied contract; nor do the facts make the present a case in which a contract by construction or compulsion of law arises. The child having necessarily come into the custody of the mother after the dissolution of the marital relation it cannot be charged against the father as a wrong that he did not assert the right to separate it from its mother, as possibly he might have done. That he allowed it to remain with her cannot be regarded as an abandonment of the child. As was pertinently said in Fitler v. Fitler, supra : "When a man abandons his child, and casts it upon the public, he becomes liable for its support. But it is entirely impossible to treat a child as thus cast upon the public when the fact simply is that the mother has deserted the father, and carried away the child, and continues to support it. This is merely leaving it with her until she chooses to restore it, "and while she keeps it on such ground she has no claim for compensation." It is true in the case cited the wife was in the wroug; she having, while pregnant with an unborn child, deserted her husband, who afterward obtained a divorce. But the right of the wife to recover was denied upon the ground that the husband had been guilty of no wrong to the child in leaving it with the mother in deference to her feelings, and that hence no contract could be inferred. Accordingly we rest our conclusion here upon the fact that the child, so far as appears, was allowed to remain with its mother out of regard for her feelings, and not in pursuance of any purpose to neglect or abandon it.

The case of Gilley v. Gilley, 79 Me. 292, has fallen under our observation. In that case a father had deserted his wife and children and left the State, and it was held in a contest between the wife and the creditors of the husband, after a decree of divorce for desertion and want of support, no decree for custody or alimony having been made, that the mother might maintain an action against the father for the necessary support of their minor children. But the decision in that case went upon the distinct theory that the father had deserted and discarded his minor children, and in that view it is in consonance with our conclusion here. As we have seen, nothing of that kind appears in the present case, and it follows from what has preceded that the plaintiff 'had no common-law right to recover upon the facts stated. Our conclusion is not at all affected by the contention that the right to recover for the support of the child was adjudicated in the proceeding for divorce. That adjudication settled the rights of the parties as they existed at the time, but it did not affect their rights so far as the father's custody or support of the unborn child was concerned. Whatever relief the mother may be entitled to, if any, growing out of the changed circumstances since the rendition of the decree, must be sought by an application to the court for a modification of the decree in reference to the support and custody of the child. Dubois v. Johnson, 96 Iud. 6; 5 Am. & Eng. Cyclop. Law, 837.

There was no error. The judgment is affirmed with costs.

NEW YORK COURT OF APPEALS ABSTRACTS.

AGENCY-UNDISCLOSED PRINCIPAL.--One who, after refusing to sell goods to defendants, sells them on

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