#### Edwards and Wife *against*Davis.

There ¡sn» obhgTon,‘by Ja^fe^ísupí *P°£*parent, but the liability of the chiidiscreated tutef b¡Ld,ta" undoes not-!3se7fr<TMPthe f0blnecessaries *"urm*shed, without his re-jj“es£ttoanin" and the natucan only be mode^po’inted *for ^the^rdief tfd the teTMmr.*® ®Jj- 36j ^|- declaration in an action of *assumpsit*against husband and wife, alleging a request and promise by husband and wife, during coverture, is bad, for the wife cannot be sued upon a mere personal contract made during coverture, although joined with her husband: and if a count on a promise by husband and wife, be joined with a count on a promise by (he wife *dum sola,*and judgment is rendered generallyior the. plaintiff, it is error.

IN ERROR, to the Court of Common Pleas of the county of *Jefferson.*

The defendant in error brought an action of *indebitatus assumpsit,*in the Court below, against the plaintiffs in error. The declaration alleged, that *Hannah,*the wife of the de- - 7-17 7 *°*7 ’ . . lendant *Edwards,*when sole and unmarried, was indebted to the plaintiff below, in the sum of 300 dollars, for meat, drink, washing, lodging, and other necessaries, by the plaintiff found and furnished, at her special instance and request, whilst sole and unmarried, for *Samuel*and *Ruth Clark,*her parents; and in the further sum of 300 dollars, paid, laid out, and expended, at her special instance and request, and for her, in furtherance of their good and comfortable maintenance and support, and in discharge of surgeons and physicians’ bills for attendance on them; and being so indebted, whilst she was sole and unmarried, she undertook, &c. There was another similar count, for necessaries furnished *to,*and money paid for, the maintenance of *Samuel*and *Ruth Clarlc,*at the requests of both the defendants, *Edwards*and *1 *■ 'A**282his wife, in which the promise was alleged to have been made fcy them both. The defendants pleaded *non assumpserunt.*

The cause was referred, under the statute, by rule of Court, and the referees made the following report: “ The referees appointed in this cause report, that they find due to the plaintiff from the defendants, the sum of 49 dollars and 51 cents. The facts were substantially these : that *Davis’s*and *Edwards’s*wives are sisters, whose parents have eight children. *Edwards’s*wife was, before the marriage with .Edwards, a widow. Her parents were poor and feeble, and unable to maintain themselves. The plaintiff had, during the widowhood of Mrs. *Edwards,*expended the sum of 396 dollars and 8 cents, the one eighth part of which is the above sum reported. It appeared that Mrs. *Edwards,*while a xvidow, had Sufficient property to have paid said sum reported. The plaintiff also claimed before us, the one eighth part of 348 dollars and 48 cents, being, the sum that appeared in evidence to us, xvhich he had expended in support of the aforesaid parents of *Edwards’s*wife, since she was married to *Edwards,*and before the commencement of this suit; but this last demand we did not allow: but refer the same 'to the Court, whether, according to law, it ought to be .allowed.” ,

The Court confirmed the report as to the first sum found by the referees, but disallowed the other, and a judgment •was thereupon rendered, for the plaintiff below, for 49 dol- , lars and 51 cents.

*Louclcs,*"for the plaintiffs in error.

By the marriage, the obligation of *Hannah,*the wife of *Edwards,*to maintain her parents,- entirely ceased, she having taken upon herself • stronger and paramount duties. A man who marries a widow, having children by a former husband, is not bound to maintain those children. *(Cooper*v. *Marlin,*4 *East, 76.*84.) *Lawrence,*J. said it was a mistake, to consider the maintenance of the children as the *debt*of the mother, who has married a second husband, or as a *debt*on her estate. The wants of the children are only ground for an order of maintenance, under the statute, if the parent is of sufficient ability; but when she has parted with that ability by a se-. *283cond marriage, she is no longer liable. *(Tubb*v. *Harrison,*4 *Term Rep.*118. *S.*P.)

So, in *Rex*v. *Munden,*(1 *Str.*190.) it was decided, that a man was not bound to maintain his wife’s mother, though he received a good fortune with his wife. *Pratt,*Ch. J. said, that by the law of nature, a man was bound to take care of his own father and mother; but there being no temporal obligation to enforce that law of nature, it was necessary to establish it by act of parliament, which extended no farther than the law of nature went before. This case was recognized in *The King*v. *Benoier,*(2 Lord *Raym.*1454.)

There is no contract in this case; hut the plaintiff’s claim is founded on the liability of the defendant’s wife, arising from natural relationship, which, we contend, ceased on her marriage. But if liable at all, she could only be so, under the statute *for the relief and settlement of the poor.*(1 JV". *R. L.*286. sess. 36. ch. 78. s. 21.) The only remedy being by statute, no action lies at common law. (5 *Johns. Rep. 175. 10 Johns. Rep.*389.) The party, therefore, should have applied *to*the *Sessions*for an order of maintenance.

N. *Williams,*contra.

The plaintiff below was clearly entitled to recover against the defendants the amount for which the wife of *E.*was liable. Now, the wife was under a natural and moral obligation of the highest kind, to support her indigent parents; (1 *Bl. Com.*453.) and the Court may presume a promise founded on such moral obligation.(a) This *284Is the principle of the common law; and though the statute gives a remedy, it is in the affirmative, and does not take away the. common law right. (1 *Comyn's Dig.*322. *Ac-*» it'ore *on*Statute, (C.) 2 /nsf.' 100.)

Again; the report of the referees may be considered as a special verdict; the Court may, therefore, presume that it was proved, that the necessaries were furnished to the parents, at the special instance and request of the defendants. (1 *Saund.*228. *a. Bartlett*v. *Crazier, 15 Johns. Rep.*254.)

(a)

**It never has been decided, that a mere moral obligation is sufficient to raise an implied assumpsit. Our law does not go the length of the civil law in enforcing a naked promise, or mere moral obligation^. *(Thorne*v. *Deas, 4 Johns. Rep. 97.*1 *Fonbl. Equ.*322—326.) Where *assumpsit*is brought on a past or executed consideration, and laid, as it must be, on the *request*of the defendant, (1 *Chitty’s PI.*296,297.) that *request*may he shown either by positive proof, or *implied evidence,*arising from the *beneficial*nature of the consideration, and the circumstances of the transaction. *(Livingston*v. *Rogers, 1 Caines’ Rep.*584, 585. 1 *Saund.*264. n. 1. *Hicks*v. *Buchans,*10 *Johns. Rep.*243.) But *it seems,*that a legal or equitable duty, or a prior moral obligation, is a sufficient consideration to support an *express*promise. *(Butter’s*JV*. *P,**284147. *Watson r. Turner. Hauikes*v. *Saunders, Comp.*290. *Atkins*v. *Bamoell, 2 East,*506. *Sed vide*3 *Bos.*<Sp *Pull.*249, 250.' *Wennall*v. *Adney,*a learned and well written *note*of the reporters, who think the position too broad and indefinite.) From what is said' by the Court in *Comstock*v. *Smith, ¡7 Johns. Rep.*88.) it might be inferred, that a beneficial consideration, or a request, might he implied from the moral obligation alone, hut the cases there referred to, do not support that doctrine ; nor was such a principle necessary to the decision in that case. Though it has been, undoubtedly, decided, that “ where a person is bound, morally and conscientiously, to pay a *debt,*though not *legally \*bound, a subsequent promise to pay will give a right of action(Zee v. *Muggeridge,*5 *Taunt.*36. 44.) or as *Gibbs, 3.*expresses himself, that “ wherever there is a moral obligation to pay a debt, or perform a duty, a promise to perform that duty, or pay that debt, will be supported by the previous moral obligationyet, it is believed, that in all the cases which may be cited in support of the rule, there was an original consideration, beneficial to the party promising, and which might have been enforced, on an implied promise, had it not been for some statute provision, or some positive rule of law, which, with a view to the general good, exempted the party from *legal*liability, in the particular instance. (Vide further *Dunbar*v. *Williams, 10 Johns. Bep.*249. *Newby v. Wilt-shire,*2 *Esp. N. P. Rep.*739. *Simmons*v. *Wilmot,*3 *Esp. N. P. Rep.*91. *Tioga*v. *Seneca,*13 *Johns. Rep.*380. *Everts*v. *Adams, 12 Johns. Rep.*352. *Oatfieldv. Waring, 14 Johns. Rep.*188. *King v. Butler, 15 Johns. Rep.*281. *Barnes*v. *Hedley,*2 *Taunt.*174. *Lamb*v. *Buncex 4 Maulé fy-Sclw. Rep.*275. *Wing*v. *Mill,*1 Bamui• <Sr *Aid. Rep.*104.)

Spencer, Ch. J. delivered the opinion of the , Court.

On the argument these questions were discussed ; whether, independently of statutory provisions, at common law, a child, having sufficient property, was liable, merely from that relation, to support her parents ; and whether a suit could *285be maintained by any person, furnishing a necessary support to the parents, against such child ?

The duty of a parent to maintain his offspring, until they attain the age of maturity is a perfect common law duty. The liability of a child to support its parents, who are infirm, destitute, or aged, is wholly created by statute ; and it has been truly said, that the statute imposes on such relatives, duties unknown to the common law. *(Reaves’ Domestic Relations,*284. 1 *Bl. Com.*448.) In *Rex*v. *Munden,*(1 *Str.*190.) *Pratt,*Ch. Justice, said, with the concurrence of the Court, “ by the law of nature, a man was bound to take care .of his own father and mother, but there being no temporal obligation to enforce that law of nature, it was found necessary to establish it by act of parliament.” Our statute for the relief and settlement of the poor, (1 JV". *R. L.*286. s. 21.) provides, that the father and grandfather, mother and grandmother, being of sufficient ability, of any poor, blind, lame, or decrepid person, not being able to maintain himself, and becoming chargeable to any city or town, and the children and grandchildren being of sufficient ability of such poor, blind, lame, or decrepit person, not being able to maintain himself, and becoming chargeable, as aforesaid, shall respectively, at their own charge and expense, relieve and maintain every such poor person, in such manner as the justices of the peace of the county, at their general sessions of the peace, shall order and direct, on pain of forfeiting and paying one dollar and twenty-five cents for each person so ordered to be relieved, for every week such order shall not be obeyed, to be sued for by the overseers of the poor of the city or town to which such poor person shall be chargeable.

Now, the duty of a child, of sufficient ability to maintain its poor and destitute parents, being an imperfect one, not enforced at the common law, and the statute having prescribed the manner in which it is to be enforced, and the extent of the penalty, the statute remedy is the only one to he resorted to. This principle was recognized by this Court in *Almy*v. *Harris,*(5 *Johns. Rep.*175.) Then, the consequence necessarily follows, that no one who has afforded relief to indigent persons, from motives of humanity, or from any other consideration, can maintain a suit, as upon an im*286plied contract, against the children of such parents, arising merely from the duty which such child owes to its parents, to Support them.

It was urged on the argument, that the Court would intend a request, from the moral duty operating on the child ; it is true, that a request has heen inferred, as in the case of *Oatfield*v. *Waring,*(14 *Johns. Rep.*192.) from the beneficial nature of the transaction, and the circumstances of the case. In the present case, the maintaining the parents of the wife of the plaintiff in error, while she was sole, could not be considered a benefit to her; and the circumstances negative the idea that any request was made by her, or the defendant in error, to maintain and support her parents.

We must regard the special report of the referees as presenting the facts in the case, and then it is evident, that they place their decision on the ground, that the plaintiff below had expended a gross sum in supporting the parents of the wives of the plaintiff and defendant; that the defendant’s wife was of sufficient ability; that there were eight children, and the whole expenditure is apportioned on the eight children. The referees evidently founded their report on these circumstances alone; and unless we regard their report as in the nature of a special verdict, and consider the judgment rendered thereon, which is a general one, as adopting and sanctioning the special finding of the referees, and as applicable to the demand for necessaries found for the parents of the plaintiff’s wife, whilst she was sole, the judgment is erroneous on another ground. Some of the counts are against the plaintiff and his wife, for necessaries furnished the parents of the wife, at the special instance and request of the husband and wife; and no principle is better settled, than that the wife can, in no case, be sued upon a mere personal contract made during the coverture, whether joined with her husband or not, unless the husband be *civiliier mortuus,*or banished or .transported. (1 *Chit. PI.*43. 2 *Samd.*180, n, 9.)

Judgment reversed.