Imágenes de páginas

may prove to them an adequate relief, we think, verdict of the jury herein and the judgment of under a somewbat instinctive appreciation, con- court thereon be annulled and set asidr; and it sidering tbat, as it is a probability that in the is now ordered and adjudged ibat the plaintiffs, course of time the circumstances of Edward William Myhan and Catherine Crow, bis wife, Myban might have changed, had be lived, an receive from the defendant, the Louisiana Elecallowance of $2,000 would not be unreasonable, tric Light & Power Company, the sum of and would relieve bis parents awhile, to some $2,000, with legal interest thereon per annum extent, from the immediate consequences at- from the rendition of judgment till paid, and tending the severe injury inflicted on them. all costs of suit.

It is therefore ordered and decreed that the



favor of plaintiff in an action to recover comV.

pensation for professional medical services J. W. POWELL, Appt.

rendered to defendant's minor daughter. Af

firmed. (....Iowa....)

The court below found that plaintiff was en

titled to recover from defendant for the serv. 1. It is the legal, as well as the moral, ices sued for, and rendered judgment in bis duty of parents to furnish necessary favor, but certified the following question to support to their children during minority, this court for its opinion: and, although a parent cannot be charged for

"Is a father legally liable to a physician (for necessaries furnished by a stranger for his minor the) latter's services in professionally creating child, except upon an express or implied promise the minor daughter of said father dangerously to pay for the same, such promise may be inferred on the grounds of the legal duty imposed. attacked with typhoid fever, who at the date of 2. A partial emancipation of a daugh was then and bad been residing away from

said treatment was seventeen years of age and ter fourteen years of age by permitting her for ber father's bouse for three years prior to the three years thereafter to reside thirty miles away, controlling and using her own wages without fur: rendition of said services, earning and controllnishing her with any money or menns of support, ing ber own wages, and providing herself with will not exempt the father from liability for nec- clothing, at a place thirty miles distant from essary services of a physician employed by her her father's place of residence, the fatber not in sickness, where it does not appear that he in- furnishing or agreeing with bis dangliter to tended to waive the right to exercise parental furnish her with any money or means of supauthority over her.

port but consenting to ber absence from bome; (Beck, J., dissents.)

the said professional services being rendered at (January 29, 1890.)

the request of the said minor daughter, - but

were rendered and furnished witbout the proibe District Court for Dallas County in and without knowledge of the sickness until

NOTE.-Obligation of parent to support infant child. I tion because the child has voluntarily left home.

A father is bound to support his minor child if | People v. Strickland, 13 Abb. N. C. 473; Gotts v. he be of ability, even though the child has property Clark, 78 III. 229; compare, however, Angel v. Ma of his own. Braiden v. Mercer, 5 West. Rep. 195, 44 | Lellan, 16 Mass. 28. Ohio St. 339; Wood's Estate, 13 Phila. 391 ; Buckley An express or implied promise by the father is v. Howard, 35 Tox. 565; McKnight v. Walsh, 23 N. necessary to bind him for necessaries furnished his J. Em. 1:38 ; Stevens v, Sterens, 23 N. J. Eq. 296; infant child by a stranger. Carney v. Barrett, 4 Hines v. Mulins, 25 Ga. 696; Addison v. Bowie, 2 Or. 171; McMillen v. Lee, 78 III. 443; Freeman v. Blund, Ch. 606 ; Tompkins v. Tompkins, 18 N. J. Robinson, 38 N. J. L. 383; Kelley v. Davis, 49 N. H. E. 303; Myers v. Myers, 2 McCord, Ch. 214; Stovall 187. V. Johnson, 17 Ala. 14: Thompson v. Dorsey, 4 Md. The mother is not liable for their support and Ch. 149; Hillsborougb v. Deering. 4 N. H. 86; Litch-education during the life jme of the father. Glad. field v. Londonderry, 39 N. H. 247; Cromwell v. ding v. Follett, 95 N. Y. 6.52, 2 Dem. 58. Benjamin, 41 Barb, 558; but compare Re Marx, 5 But if she has supported them out of her own esAbb. N.C. 224; Holtzman v. Castleman, 2 McArth. tate she cannot claim reimbursement out of their 655; Trimble v. Dodd, 2 Tenn. Ch. 500.

estate without showing a contract with their guard. If the father is not able to support them he will ian to pay therefor. McDaid's Estate, 14 Phila. be allowed a reasonable compensation out of their 253. estate for their support. Dawes v. Howard, 4 Mass. A widow is bound to support them, if of suff. 97; Newport v. Cook, 2 Ashm. 33!; Dupont v. Joho. cient ability. De iham v. Natick, 16 Mass. 140; gon, 1 Bailey, Eq. 279; Godard v. Wagner, 2 Strobb. Nightingale v. Withington, 15 MASS. 272. Eq. 1.

But she is not compellable, if the child has an ese It is only under peculiar circumstances that he tate sufficient for its own support. Dawes v. How. will be allowed to charge them for their mainte- ard, 4 Mass. 97; Whipple v. Dow, 2 Mass. 415. dance and education. Tanner v. Skinner, 11 Bush, By the common law, in Massachusetts the father 120; Cowls v. Cowls, 8 111. 435.

is bound to support his minor children, even if he To obtain such allowance, he must show that he de erts them. Glenson v. Boston, 3 New Eng. Rep. is without menns (Haasa v. Roehrscheid, 6 Ind. 67), 772, 144 Mass. 25; Dennis v. Clark, 2 Cush. 347. and he will be allowed for their past maintenance. A father must support a minor child, notwithPresley v. Davis, 7 Rich. Eq. 105.

standing a decree divorcing his wife a vinculo for He is not uecessarily absolved from this obliga- | his misconduct allowed her alimony, but with no

See also 29 L. R. A. 678.

demand was made for the payment of said serv. | Me. 151; Kelley v. Davis, supra; Oren v. White, ices by plaintiff, the atiendance of plaintiff 5 Port. (Ala.) 435; Clark v. Gotts, 1 Ill. App. being from day to day for a period of twenty 455; Bailey v. Ring, 41 Conn. 305; Rernoile v. days.”

Caldırell, 46 Ind. 153; Rogers v. Turner, 59 Messrs. W. W. Cardell and R. S. Barr, Mo. 116; Harper v. Lemon, 33 Ga. 227; Clark for appellant:

V. Clark, 46 Conn. 586; Byers v. Thompson, 66 Parents are not obliged to support their mi. III. 421; 2 Kent, Com. 11th ed. 190, noté 3; por cbildren, independent of statute; for the Gordon v. Potter, 17 Vt. 348. statutes are only indemnifying in their pature in There is no common-law liability to provide favor of municipalities, and do not extend to a maintenance for minor children, such liability individuals.

beicg provided by Farmington v. Jones, 36 N. H. 271.

43 Eliz. cbap. 237; 1 Story, Cont, note 1, p. With this exception, the obligation is only a 240; 1 Bl. Com. 449; Story, Čont, notes bottom moral one, and, unless it is founded upon a p. 142. prior legal liability, it has no binding force When a child voluntarily leaves its father, from a legal point of view.

he is not liable for its contracts for pecessaries, Kelley v. Davis, 49 N. H. 187; Raymond v. Story, C nt. $ 82 and note 1; 5 Wait, Act. Loyl, 10 Barb. 483; Gordon v. Potter, 17 Vt. and Def. § 1, p. 50. 318.

Before the father can be held liable either an Wbile minor children live with and are sup- express promise or circumstances from which ported by tbeir parents, or one standing in loco a promise may be inferred is essential, in all parentis, their services beloog to those holding cases, to bind him for necessaries furnished his the parental relation.

minor child by a third person. Vonoyhan v. School District, 38 Wis. 100; Gotts v. Clark, 78 III. 229; Foulkes v. Baker, Coffin v. Shaw, 3 Ware, 82; Benson v. Reming- 29 Tex. 1:5; Schouler, Dom. Rel. 329; Swain ton, 2 Mass. 113; Angel v. McLellan, 16 Mass. i v. Tyler, 26 Vt. 9; Thauer v. While, 12 Met. 28.

313; McMillen v. Lee, 78 III. 443. Support and services are dependent upon Messrs. D. W. Woodin and F. E. Perry, each other.

for appellee: The Etna, 1 Ware, 474.

The leading duties of the parents as to their As the statutes are intended only for indem- children, recognized in the common law, are: nity of the public against paupers, and not for first, 10 protect; second, to educate; third, to tbe reimbursement of the individual who may maintain, tbem. bave relieved the sufferings and distress of Schouler, Dom. Rel. 3d ed. & 233; Gilley v. needy persons, a promise cannot be in ferred, Gilley, 4 New Eng. Rep. 494, 79 Me 292. even though notice be given by one who has The father cannot by consent or any agreeprovided the support.

meut dispose of his child and discharge himself Farmington v. Jones, supra.

of bis obligations. Parents are not liable upon any contracts Hunt v. Hunt, 4 G. Greene (Iowa) 222. made by their minor children unless they have Independent of any statute, parents are expressly or impliedly authorized them to be bound to contribute to ibe support of their mimade.

nor children, 1 Story, Cont. § 82 and note, 826 and note; Joh nson v. Barnes, 69 Iowa, 643; Darson v. Raymond v. Loyl, supra; Weeks v. Morror, 40' Dawson, 12 Iowa, 514; Furman v. Van Sise,

provision for the child's support, whose custody is A father may give to an infant son his time, and given her. Pretzinger v. Pretzinger, 13 West. Rep. in such case the son's earnings belong to the son. 133, 45 Ohio St. 452; Courtright v. Courtright, 40 Bobo v. Bryson, 21 Ark. 387; Lyon v. Bolling, 14 Mich. 633; Plaster v. Plaster, 47 IIl. 290.

Ala. 753; Fairburst v. Lewis, 23 Ark. 435; Rush v. The fact that on a decree for divorce the children Vought, 55 Pa. 137; Chase v. Smith, 5 Vt. 556; Tillotwere in the custody of a third person will not affect son v. McCrillis, 11 Vt. 477; Morse v. Welton, 6 Conn. bis obligations to support them. McCarthy v. Hin. 517; Jenney v. Aden, 12 Mass. 375; Reais v. Watman, 35 Conn. 538.

kins, 27 Mo. 516; Everett v. Sherley, 1 Iowa, 356. But a father is not liable for its support after the Where a child has been emancipated he ceases to custody of the child has been given to the mother follow any settlement thereafter acquired by his by decree of court. Brow v. Brightman, 136 Mass. father. Orneville v. Glenburn, 70 Me. 353. 187.

The parol emancipation of a minor is revocable

until acted upon. Abbott v. Converse, 4 Allen, 530. Emancipation of infant.

A parent may emancipate an infant child, and A child upon arriving at full age will be held confer a right upon it to acquire property and prima facie to be emancipated. Poultney v. Glov. possess it as against all persons whatsoever. taner, 23 Vt. 328.

ley v. Nat. Union Bank, 115 N. Y. 122, 23 N. Y.S. R. But this rule does not apply to a child of unsound 966. mind. Scranton v. Danville, 106 Pa. 446 ; Overseers A father who has given his son the right to his of Washington v. Orerseers of Beaver, 3 Watts & own wages can revoke the privilege whenever he 8. 548; Shippen v. Gaines, 17 Pa. 38; Toby Twp. Over- chooses. Agricultural & M. Asso. v. State (Md.) 18 seers of Poor v. Madison Overseers of Poor, 44 Pa. Atl. Rep. 37. 60: Penn. Twp. Overseers of Poor 6. Selinsgrove Children are not emancipated at twenty-one years Overseers of Poor (Pa.) 3 Cent. Rep. 587.

of age, who are compelled to remain longer with Marriage of a minor son emancipates the son. their parents on accowot of some intirmity of body Dick v. Grissom, 1 Freem, Ch. (Miss.) 428; White v. or mind rendering them incapable of taking care Henry, 24 Me. 531.

of themselves. Poor Overseers of Gregg Twp. v. So a minor daughter is emancipated by marriage, Poor Overseers of New Berlid (Pa) 8 Cent. Rep. 5:28; and the consent of the father will he implied by the Poor Dist. of Curwensville v. Poor Dist. of Knox circumstances. Bucksport v. Rockland, 56 Me. 22. I Twp. (Pa.) 8 Cent. Rep. 535. 7 L. R. A.



66 N. Y. 439, 443; Gilley v. Gilley, 4 New Eng. I order to hold the person liable in any case for Rep. 494, 79' Me. 242; Van Valkinburgh v. Wat- goods furnished, either actual authority for son, 13 Jobns. 480; Garland v. Dover, 19 Me. the purcbase must be shown, or circumstances 411; Dennis v. Clark, 2 Cush. 352, 353; Rey from wbich such authority may be implied ... nolds v. Sioeetser, 15 Gray, 80; Hall v. Weir, 1 The legal obligation of parents in respect to sud Allen, 261; Camerlin v. Palmer Co. 10 Allen, port extends only to those things whicb are nec. 539.

essary; and if a parent refuses or neglects to proStrangers can recover for pecessaries whether vide such things for his child, and ihey are sup the father knew they were being furnished or plied by a stranger, the law will imply a promiso Dot.

on the part of the parent to pay for them.” 1 Parsons, Cont. 6th ed. pp. 309, 310.

Without further citation of authorities, we

announce as our conclusions ibat it is the leGiven, J., delivered the opinion of the court: gal as well as moral duty of parents to fur

1. Appellant's contention is that the obliga nish necessary support to their children dur. tion of parents to support their minor children ing minority; that a parent cannot be charged is only a inoral one, and is not enforceable iv for necessaries furnished by a stranger for bis tbe alisence of statute or promise; that such minor child, except upon an express or implied promise is not to be implied from mere moral promise to pay for the same: and that such obligation, nor from the Statute providing for promise may be inferrel on the grounds of the the reimbursement of the public; and that an legal duty imposed. omission of duty, from which a jury may find 2. It is further contended on bebalf of appel. a promise by implication of law, must be a le- lant that the facts certified show an emancipagal duty, capable of enforcemeni by process of tion of bis daughter, such as to relieve him law. At first glance, this view of the law from liability for the services sued for; that seems opposed 10 our natural sense of justice; support and services are reciprocal duties, and yet it is not without support in the authorities. if one is withheld the other may be withdrawn. Such is held to be tbe law in New Hampshire Parenis are entitled to the care, custody, conand Vermont. See Kelley v. Davis, 49 N. H. trol and services of their children during mi. 187; Farmington v. Jones, 39 N. H. 271; Gor. nority. To emancipate is to release, 10 set don v. Potter, 17 Vt. 348.

free. It need not be evidenced by any formal A different doctrine bas long since been held or required act. It may be proven by direct in ibis State.

roof or by circumstances. To free a child, In Dauson v. Dauson, 12 Iowa, 513, this for all the period of minority, from care, cuscourt beld that “the duty of the parent to tody, control and service would be a general maintain bis offspring until they attain the age emancipation; but to free bim for only a of maturity is a perfect common-law duty.” part of the period of minority, or from only a

In Johnson v. Barnes, 69 Iowa, 641, wbicb part of the parent's rights, would be limited. was an action by the mother, who had been di- The parent, baving the several rights of care, vorced, against the father, for support fur custouy, control and service during minority, nished their children, the court says: “As may surely release from eitber without waiving there was no promise, the question to be deter- bis right to the other, or for a part of the mined is whether one can be inferred in favor time without waiving as to the whole. A of a wife, who supports her child, as against father frees bis son from service. That does her husband, who bas without cause abandoned not waive the right to care, custody and conber and bis child.

The obligation of parents trol, so far as the same can be exercised conto support their children at common law is sistently with the right waived. He frees bis somewbat uncertain, ill defined and doubtful. son of eighteen from service for one year. Indeed, it bas been said that there is no such That does not waive the right to bis services obligation. But we are not prepared 10 after the year; and if tbe waiver has been for say that this rule has been adopted in this an indefinite period the parent may assert bis country, and it should be conceded, we think, right to the services of ibe child at any time that, independent of any statute, parents are witbin the period of minority, subject to the bound to contribute to the support of their mi- rights of those who have contracted with the nor children, and ibat such obligation rests cbild on the strength of the waiver as to serve mainly on the father, in the absence of a statices. In the law of contracts, where a father ute, if of suflicient ability; and that, in favor expressly or impliedly, by bis conduct, waives of a third person, who supports a child, a prom bis rigut generally to the services of a minor ise to pay may and should be inferred on the child, such child is said to be emancipated. ground of the legal duty imposed."

The child may sue, under such circumstances, In Van l'alkinburgh v. Watson, 13 Johns. on such contracts as are made with bim for bis 480, it is said: “A parent is under a natural ob services. Nightingale v. Withington, 15 Mass ligation to furnish necessaries for his infant 272; McCoy v. Huffman, 8 Cow. 84; Stiles v. children; and, if the parent neglect that duty, Granville, 6 Cush. 458; Schouler, Dom. Rel any other person wbo supplies such necessaries S 267. is deemed io bave conferred a benefit on the de. There is nothing in these authorities, nor any linquent parent, for which the law ruises anim. reason, against the view expresseil, that emanplied promise to pay on the part of the parent." cipation may be general or limited. There is

In 5 Wait, Act. and Def. 50, the author says: no direct evidence as to the purpose of the de“The duty of parents to support, protect and fendant with respect to bis daughter; but we educate their offspring is founded upon the are to say, fror the circumstances showa, nature of the connection between them. It is whetber they evidence either a general or limnot only a moral obligation, but it is one which ited emancipation. is recognized and enforced by law. ... In The case of Everett v. Sherfey, 1 Iowa, 358, t relied upon. That was an action to recover / was attended by the plaintiff, as her physician, damages of the defendant for baving harbored from day to day, for a period of iwenty-one and retained the plaintiff's minor son in bis days, which services were rendered wiibout employ. The issues and circumstances were the procurement, knowledge or consent of the quite different froin those certified in this case. defendant. These circumstances are widely The court says: “There could be no such har. different from those in Everett v. Sherfey. Here boring as would render the defendant liable to there was no disagreement that resulted in the the father in this action, if the son was in truth daughter leaving bome; no want or waiver of emancipated, and, if the son was not emanci. pareital authority; no dissatisfied and roving pated, it will still be a question whether there disposition; no statement by the father that he was such barboring as renders the defendant bad no control over his daughter; and no publiable. By 'emancipation,' in this connection, lication by the father notifying persons not to we understand such act of the father as sets the credit her on bis account. The circunstances son free from bis subjection, and gives bim the disclosed in this case are such as are of frequent capacity of mapaging his own affairs as if he occurrence in this country. Parents, either was of age.”

from necessity or from a desire to teach teir The following is given as a condensed state children to be industrious and self-supporting, ment of the facis: “In the spring or summer emancipate them from service, for a detsite or of 1852, plaintiff's son, a minor of the age of indefinite time, without any intention of thereby seventeen, went to reside at defendant's bouse, releasing their right to exercise care, custody and was then and afterwards employed by him and control over the child. The obligation of as a hired band for over one year, the defend- parents to support their minor childrej loes not ant paying the son full wages for bis services. arise alone out of the duty of the child to serve.' In February, 1853, plaintiff sued defendant to If so, those who are unable to render service be.. recover for the ser vices, in which suit the judg- cause of infancy, sickness or accident--who ment was for the defendant. The son was of most of all others need support-would not be a dissatisfied and roving disposition, careless entitled to it. and improvideot in bis babits, not under pa- Blackstone, in his Commentaries (vol. 1, p. rental control, and, either through willfulness 445), says: “The duty of parents to provide or negligence, bad not received the education for the maintenance of their children is a prin. proper for a person of his age and condition. ciple of patural law, -an obligation, says Puit. In December, 1851, a misunderstanding arose endorf, laid on them, not only by Nature her. between the parent and the child, wbich result. self, but by their own proper act in bringing ed in the son's leaving home, and residing and them into the world; for they would be in the working at various places, before he went into highest manner injurious to ibeir issue if they the defendant's service. After said December, only gave tbeir children life that they might 1851, the father did not, apparently, bave or afterwards see them perish. By begelting exercise the proper and necessary control and them, therefore, they have entered into a volautbority over the said minor ibat a parent of unlary obligation to endeavor, as far as in them & well-regulated family ought and should ex- lies, that the life which they bave bestowed ercise, and permitted and sanctioned the biring shall be supported and preserved. And thus out of said minor at various places, and at dif. the children will bave the perfect right of re. ferent employments, away from home; but wboceiving maintenance from their parents. This made the coutracts, or received the pay, is not obligation to support is not grounded on the : stated por proven. The father bad also stated duty of the child to serve, but rather upon the that he had no control over bis son, and had in inability of the child to care for itself. It is some instances waived bis authority over him. not only a duty to the child, but to the public. It also appears that on the 11th of September, The duties extend only to the furnishing of 1852, the plaintiff, by publication in a news- necessaries. Wbat are necessaries must be depaper, forewarned all persons from crediting termined by the facts in each case. The law bis said son on bis account, avowing, also, has fixed ine age of majority; and it is until therein that he would pay no debts of his con- that age is attained that the law presumes the tracting, and that he would not fulfill any con child incapable of taking care of itself, and has tracts, or pay debts, entered into by him." conferred upon the parent the right to care, The court says: “From these circumstances, custody, control and services, with tbe duty to to mention none others, we think the court support. might fairly conclude there was a manumission 3. There being no direct evidence as to the or emancipation up to the time above stated, purposes of the defendant with respect to his and tbat there was no liability for giving the daughter, we are to say with what intention be son shelter, residence and a home. At least, cousented to bis daughter's going and remainwe think it so fairly deducible from the facts ing away from bis home as she did. That he that we should not disturb the conclusion.” intended she should control ber own earnings,

The circumstances disclosed in this case are at least until such time as he should declare these: The defendant's daughter, at the age of otherwise, is evident; but that it was ever his fourteen, went to reside away from her fatber's intention that if, by sickness or accident, she bouse, ai a place thirty miles distant, where should be rendered unable to support herself, for three years she contracted for, earned and be would not be responsible to those who controlled her own wages, and provided ber- might minister to her actual necessities, we do. self with clothing, her father consenting there pot believe. Such an inference from these facts to, he not furnishing, or agreeing to furnish, would be a discredit to any father. In our her with any money, or means of support. view, there was, at most, but a partial eman. That, while thus absent, she was dangerously cipation,-an emancipation from service for an attacked with typhoid fever, and at her request indefinite time. The father bad a right at any

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time to require the daughter to return to his 2. These facts show that the daughter was home and service; and she had a right at any emancipated by the falber. Emancipation time to return to bis service, and to claim his may be shown by circumstances from which care, custody, control and support. There may be inferred the conseut of the father that was no such an emarcipation as exempted the the child may control his own time, earnings father from liability for actual necessaries fur- and actions. Slight circumstances tending to nished to bis daughter. In view of the legal as show such coosent are sufficient, in the absence well as the moral duty of appellant to furnish of contradictory evidence. Schouler, Dom. pecessary support to bis daughter during minor. Rel. § 267; Everett v. Sherfey, 1 lowa, 356. ity, and especially when upable, from infancy, 3. Emancipation relieves the child of subjecdisease or accident, to earn her own necessary tion to the parent, and bestows upon him the support, we think he may well be understood as capacity of managing his own affairs as if he promising payment to any tbird person for act-were of age (Everett v. Sierfey, supra; Schoul. ual pecessaries furnished to her. As already er, Dom. Rel. & 268); and it also relieves the stated, what are necessaries must be determined parent of all legal obligation to support the from the facts of each case. What would be nec- cbild. Schouler, Dom. Rel. § 268. essary support to a child in sickness would not 4. A parent is bound, neither at common be necessary in bealth. Tbe services sued for law, nor by any statute of the State, to support were evidently, necessary for the support and his children who are of age. Monroe Co. v. well-being of the defendant's daughter. As we Teller, 51 Iowa, 670; Blachley v. Laba, 63 Iowa, have seen, he had not relieved himself from the 22. duty to furnish her such support, and, from As I have shown, an emancipated child bis obligation to do so, may be presumed to bave stands as to his obligation to his parent and the promised payment to anyone who did furnish points exempt to or from obligation for his it in bis absence.

support, just as a child who is of age. Our conclusion is that the judgment of the 5. It may be that the parent would be under District Court should be affirmed.

obligation to support a pauper child who is of

full age, or that a promise would be implied on Beck, J., dissenting:

the part of the father to render such support. 1. I cannot assent to the doctrines and con- But that point is not in tbis case, as it is not clusions announced in the majority opinion in shown or claimed that the child for whose supthis case.

The facts are presented in the cer port the father was sued is a pauper, or not tificate of the judge upon which the case is possessed of ample meads to pay plaintiff for brought here on appeal." We cannot look else. The services rendered by bim. where for the facts. They are, briefly stated, 6. Doctrines as to the liability of the father these: The daughter was seventeen years old, for the support of his minor child, and his liaand, with the father's consent, was at service bility therefor upon a promise, express or imthirty miles away from his home, and had been plied, and upon other points of the law, are for three years, all the time controlling her own found in the majority opinion, to which I diswages, and supplying her own wants, and resent. As tending to support my views, I cite ceiving nothing for support or necessaries from the following decisions of this court: Dauson ber father. The father had no knowledge that v. Dawson, 12 Iowa, 512; Johnson v. Barnes, services were rendered to the daughter by plain. 69 Iowa, 641. See, to the same effect, Schoul. tiff, or that his daughter was sick. It is not er, Dom. Rel. § 236. shown that the daughter was a pauper, or with- In my opinion, the judgment of the district out means to pay the plaintiff. No presump- court ought to be reversed. tion to that effect will be entertained.


J. W. RUSSELL et al., Appts.,

R. H. TATE et al.


2. Where an illegal appropriation has been made by a town council and warrants drawn thereon, some of which bave been paid, equity bas jurisdiction of a suit to cancel the un. paid warrants, to compel repayment of the mode ey paid and to annul the appropriation, and the recalling and cancellation of the unpaid warrante after suit is brougbt will not oust the jurisdiction; in such case the court may grant affirmative, as well as injunctive, relief.

1. A town council has no power to appropriate funds of the town to aid in building a coun. ty court-house therein.

NOTE.-Towns and villages may be restrained from A citizen and taxpayer of an incorporated city is making illeyal appropriations.

entitled to an injunction to restrain an illegal apIn this country, the right of property holders or propriation of the money of the city. Withington taxable inbabitants to resort to equity to restrain v. Harvard, 8 Cush. 6; New London v. Brainard, municipal corporations and their officers from 22 Conn. 552; Harney v. Indianapolis, C. & D. R. CO. transcending their lawful powers or violating their 32 Ind. 244; Scofield v. Eighth School Dist. 27 Conn. legal duties in any mode which will injuriously 499, 504: Webster v. Harwinton, 32 Conn. 131; Teraffect the taxpayers, such as making an unauthor- rett v, Sharon, 34 Conn. 105. ized appropriation of the corporate funds, has been If an appropriation of money be made for two affirmed or recognized in numerous cases in many objects, one lawful and the other not, and it cannot of the States. 2 Dilica, Mun. Corp. 829.

be distinguished and separated, the whole will be

See also 25 L. R. A. 862; 36 L. R. A. 367; 11 L. R. A. 692.

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