The Town of Hudson vs. Oliver Hills and als., 8 N.H. 417

Upham, J. It is well settled that the mother of an illegitimate child has a right to the custody and control of the child as against the putative father, and is bound to maintain it as its natural guardian. The King vs. Soper, 5 D. & E. 278; Ex parte Ann Knee, 4 Bos. & Pul. 148; Wright vs. Wright, 2 Mass. 109; Somerset vs. Dighton, 12 Mass. 383; do. Petersham vs. Dana, 429; The King vs. Mosely, 5 East 224, note; 10 Ves. Jun. 59; 4 Kent's Com. 2 ed. 216. By our statute, the heirs of an illegitimate child in the ascending and collateral lines are its mother, and her heirs, (1 N. H.

Laws, 353) and the act for the maintainance of illegitimate children provides that the putative father of the child, who shall be holden chargeable for its maintainance, shall be ordered “ to pay such sum or sums of money to the ‘ mother of the child, or the selectmen of the town where * the child has its settlement, to be expended in its nmmtainanee, as the court may, under all the circumstances, judge ‘reasonable.” 1 Laws N. H. 296. The putative father has no right to the custody and control of the child, except, perhaps, as against a stranger; and his right to this extent is questionable.

There are some English authorities in favor of such right, but we do not find them recognized in this country. The King vs. Comforth, 2 Str. 1162; do. vs. Hodnett, 1 D. & E. 96; 11 East 20; 4 Kent’s Com. 2 ed. 216. The circumstance that the defendant in this case had given bond to indemnify the town against the maintainance of the child, altered in no manner the rights of the mother.

Most certainly the selectmen or overseers of the poor were under no obligation on account of the bond to separate the child from its mother at the age of twenty-two months, against the mother’s consent, as long as she was competent to its care and management. The defendant’s offer to take the child, and maintain it, therefore, under the circumstances of this case, forms no de-fence to this action. This point has been directly settled in the New-York courts. In the case of Carpenter & als., Overseers of the Poor, vs.

Whitman, 15 Johns. 208, it was holden that the mother of an illegitimate child of three or four years old was entitled to its custody, and that the putative father and his surety on a bond could not exonerate themselves from liability, by demanding the child. See, also, The People vs. Landt, 2 Johns. 375. How far the offer of the defendant would have availed as a defence of this action, had the child been of more advanced age, or had no rights of the mother intervened, it is not necessary now to determine.

In any event, nothing short of a perfectly suitable and proper provision for the child could have relieved the defendant from his liability to the town. In this case, the selectmen were willing that the defendant should take the child, if the mother would consent. They could do no more ; and this offer was highly improper, unless they had the fullest confidence as to the kind treatment and proper maintainance of the child by the defendant. Judgment for the plaintiff.