Cheesborough v. Baldwin

dissented from the opinion of the court with respect to the husband’s right of joining with the wife in a prosecution for maintenance. The reason given against it is, that the husband is not bound to maintain such child. Admit this to be true; yet if he will voluntarily prosecute with his wife and recover maintenance, he will be bound to maintain it — otherwise the child must become a public charge. But the mother is obliged to maintain her child, and,the husband marries her charged with that incumbrance, while a nurse child; he also married her invested with a right of action for the maintenance of her child, and why he may not join in prosecuting this right as well as any other I am unable to comprehend. It is certain a feme covert cannot prosecute alone.

This point was adjudged at Windham, March A. D. 1774, in thé cáse of Mary Washborn v. Henry Lad. She recovered *231against Mm for maintenance of a bastard cMld. He brought a writ of error to the Superior Court in March A. D. 1773 and reversed the judgment. The place of the child’s birth was not mentioned in the complaint. She entered her original complaint as though it came by appeal; and pending the writ of error, she married one Hender. Lad plead in abatement that she was a feme covert, and could not enter and prosecute said suit alone and that her husband could not be joined. Judgment in March 1774 that the plea was insufficient, and that the husband might join in the suit; and on motion the place of the child’s birth was inserted in the complaint and the cause was tried upon a special issue of accord and satisfaction by the jury, and verdict and judgment was for the plaintiffs to recover.