majority">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# *56audit 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 *57party 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 *58Where 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»

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