-MAIN children. CHILDREN, though in family with their father, are capa- LEGITI ble of receiving fums in gift or legacy, either from strangers MATE or from the father himself, which thereby become their pro- TENANCE. perty. But the father, as their tutor and curator, has the adminiftration thereof, unless it has been exprefsly excluded, Property of or unless fuch child be forisfamiliated; that is, has left the family, and is fupported without his father's afliftance. But, Father's a child who gets a feparate stock from the father, for carrying on any trade or employment, even though he should continue in the father's house, may be faid to be emancipated or forisfamiliated, in fo far as concerns that stock; for the profits arifing from it are his own. adminiftra tion. liable. If the child, even after majority, be unable to fupport him- If the child felf, his parents are bound to maintain him. And failing the alter major ity is in father, the fame obligation extends to the paternal grand- poverty father, and fo upwards to the other afcendants by the Grandfather; and failing thefe, to the mother, and the afcend- father when ants by herd; though neither the paternal nor maternal Mother,&c grandfather, or remoter ancestors, have any part of thofe Has the powers and right of administration which belong to the fa- grandther. It has been found that a father is liable to maintain power the wife, but not the widow, of his fon. father any management? THE father's obligation arifes also from the principle al- Father's ready mentioned, that one third of the goods in communion obligation whence? $2. LEGITI MATE -MAIN TENANCE. Legitime. Collation, children, not with of which he has the management, belongs to the children. During his life he has the unlimited difpofal of the whole goods in communion; but he cannot, by any teftament or mortis caufa deed, affect the legitime or third belonging to his children. THIS third, or, when there is no widow, half, divides among the children equally, though of feparate marriages. If the eldest fon fucceed to a landed eftate, he gets no part of the legitime, or of the dead's part. If a child renounce the legitime, it is the fame thing as if he had died his hare divides among the reft; but he does not thereby lose his right to the dead's part, if he does not also renounce his fhare in the father's executry. A CHILD having a provifion from the father, cannot draw any share of the legitime without collating; that is, he must throw fuch feparate provifion into one ftock with the legionly among time, that the whole may be divided equally; unless, from the deed, it shall appear that the father intended it as a precipuum. the widow. This collation takes place only in queftions among children who are entitled to the legitime. The widow is not bound to increase the legitime by collating donations given her by her husband: on the other part, the children are not obliged to collate their provifions in order to increase her fhare . Children bound to maintain CHILDREN are bound to maintain their parents, when they fall into decayed circumftances; which duty, Mr. Erfkine fays, is enforced also by the civil fanction £. After the Mainten- father's death, the eldeft fon, fucceeding to the heritage, is their parents. ance among brethren. e If a man leave a widow and one child, who fucceeds to his heritage, fill the fociety goods divide in three, becaufe fuch only child is entitled to a legitime. f B. i, t. 6, § 58. LEGITI -MAIN obliged to aliment his younger brothers and fifters, if left unprovided. The reprefentatives of a grandfather are, agree- MATE ably to the latest decifions, not liable; becaufe, were this obli- TENANCE. gation to go beyond the reprefentatives of the immediate parents, there would be no knowing where to ftop. Such queftions are competent before the judges ordinary; whether they are fo before the feffions of the peace is not fo clear; but this we had already occafion to take notice of h. III. SPURIOUS children, or bastards, must be maintained by their parents. Baftards derive their name of fpurious from their being faid to be fine patre. And, in their cafe, it is neceffary to bring evidence of the man's connection with their mother within the legal period. $3. BASTARDS. oath in fun ther. BUT, as the guilt in such a cafe does not admit of direct Woman's evidence, it has become cuftomary to admit the woman's plement as cath in fupplement: but this ought never to be done, unlefs to the fa there be real grounds of fufpicion against the man; as, for example, where there is a proof of indecent freedoms with the woman, and fubfequent opportunity; for no anxiety to free the public from the burden of the maintenance, ought to induce juftices, rafhly, to admit an oath in fupplement without fuch foundation in the circumftances of the * Seton, &c. against Paterfon, 25 June 1761. And, accordingly, a brother having fucceeded to a very large fortune, an application was made to the court to authorize his tutors to allow a fum to his fifter; the court refufed to interfere, leaving to the tators to take fuch responsibility upon themselves. Clerk of Pennycuick. b Vol. i, p. 103. In England, when a woman is Celivered, or declares herself with child of a bastard, and will, by oath -fore a juftice of peace, charge any perfon as having got her with child, $3. BASTARDS. If he owns guilt. A burden on the parents. -QUAN TUM. Aliment, cafe. If the man acknowledge his guilt at a distance of time greater than the natural duration of a woman's preg nancy, that will not be fufficient to fubject him, unless he i proved to have afterwards kept company with her, and had an opportunity to repeat his guilt. THE aliment of baftards is a burden on both parents, ac cording to their respective ability. Mr. Erfkine says, 700 "only the mother, who is always certain, but likewife the "father, if he have either acknowledged the child, or may "be prefumed, from other circumftances, to have begotter "him c." The fum, therefore, for which decree is to be given against the father, is only such, as together with the mother's contribution, may fuffice for the maintenanc of the child. The code of monarchical France more hu manely laid the burden on the father alone; and, only fail ing him, on the mother. Lorfque le pere n'eft pas connu, lorfqu'il n'a pas le moyen, c'eft la mere qui doit etre chargée d l'enfant. As to the quantum of the aliment, no particular directions can be given; it must be fuch, as with what the mother diferetion may be fuppofed able to earn with her labour, fhall be fufh ary, accord- cient for the fupport and clothing of the child: and this ing to ex muft depend on circumstances, according to the expence of pence of living. living in the time and place. The rate of aliment varies allo according to the father's rank and circumftances. Only it is material to remark, that be the rank and fortune of the father what it may, that is no foundation for the magiftrate awarding fuch a fum as shall bring up the child in such stile as might a See fupra, the chapter on Evi- fubject the defender. Dict. Vol. iv dence. Vol. i, p. 234. 135. b The acknowledgment of guilt with the mother, at the distance of eleven calendar months from the birth, was not found fufficient to c B. i, t. 6, § 56. d Pothier, Droit Civil, &c. Tom iii, p. 314. $3. BASTARDS be fuitable to the father's ftation, were it legitimate. It takes of 14 years, and become able to 'aliment itself; which implied that the aliment should continue no longer than the age of 14, and fuch "was the opinion of the court." Graham against Kay, 25 July 1740. the fubfequent cafe, Oliver ag. Scot, 3 March 1778," the justices of peace, of the county of Roxburgh, * found Oliver, a day labourer, lia ble to Janet Scott, a woman of the fame rank, by whom he had a baf*tard child, in 41. fterling annually " of aliment, for the said child dur"ing her continuing to keep and " maintain faid child." In a fufpenfion of this judgment, at the inftance of Oliver, the lord ordinary found that he was liable in that fum annually, until the child fhould attain the age of 14 years. But the court, in reviewing this judgment, were of opinion, that, for perfons in his circumftances, the fum was too large, and the time too long; and, therefore, they restricted the quantum of the aliment to 31. in the year, to be paid quarterly, until the child fhould attain the age of feven years; and also, thereafter, until either that the father fhall take the child into his own keeping, or that the child fhall attain the age of 10 years. In the cafe of Glendinning against Flint, the court found the mother entitled to aliment for the child, ay and until the arrives at the age of 10 years complete, referving to the child to apply afterwards for aliment as accords. 19 Nov. 1782. Fac. Coll. And in the cafe of Paterson against Spiers, 29 Nov. 1782, the lord ordinary found the defender only liable in payment to the purfuer of the aliment awarded, till fuch time as the child in question arrives at the age of feven years. The court adhered to this interlocutor. Obferved on the bench: There is no established general rule for determining cafes of this nature, which are always to be regulated according to their peculiar circumftances; and, therefore, though in the cafe of Flint and Glendinning, |