Jenness vs. Emerson, Adm'r

The main question arising upon this case is, whether the plaintiff is entitled to the results of his own labor, performed for the defendant’s intestate under the circumstances detailed in the case, or whether the same belong to his mother. During the period of the services for which the claim of compensation is made, the mother of the plaintiff was his only surviving parent, and she was insane, and a pauper, supported at the expense of the town of Moultonborough, and the plaintiff was a minor, poor, and destitute of the means of support, excepting as the same might be derived from his own labor.

The proper decision of this question depends upon the principles of the common law regulating the duties, rights and liabilities of parents and children. It may be safely stated, as a general rule, that parents are under obligation to support their minor children, and in some degree liable for their education, and entitled to their earnings. Benson vs. Remington, 2 Mass. R. 113; Nightingale vs. Withington, 15 Mass. R. 272; Jenney vs. Alden, 12 do. 375; Burlingame vs. Burlingame, 7 Cowen R. 92.

But their duties and rights are limited, and are dependent upon, and in a great measure result from each other. Whether the general rule will apply to the mother, in all eases where the father has deceased, we need not settle in this case.

Blackstone says, the father has “ the benefit of his children’s labor while they live with him and are maintained by him.” 1 Blade. Com. 453.

Mr. Chancellor Kent, in his Commentaries, (2 Kent's Com. 193,) says, that “in consequence of the obligation of the father to provide for the maintenance, and, in some qualified degree, for the education of his infant children, he is entitled to the custody of their persons, and the value of their labor and services.” The case of Day vs. Everett, 7 Mass. R. 145, holds the same principle. Mr. Justice Woodbury, in Cale vs. Parrot, 1 N. H. Rep. 28, says, “ the general right of the parent to recover for such services cannot be contested.” But in that case it is remarked, that “ when a minor happens to be eloigned from the parent, the latter often ceases to be entitled to any portion of his wages, on the ground that the child without them would be suffered to starve.”

In Nightingale vs. Withington, 15 Mass. R. 272, it is said, that “ the father, and in ease of bis death the mother, is entitled to the earnings of their minor children.” The right must be founded upon the obligation of the parents to sustain and support their children, which obligation is compensated by a right to their services, or to the fruits of them, if by their permission they are employed by other persons. But when the father has discharged himself of the obligation to support the child, or has obliged the child to support himself, there is no principle but that of slavery which continues his right to receive the earnings of his child’s labor. Thus, if the father should refuse to support a son, should deny him a home, and force him to labor abroad for his own living, or should give or sell him his time, as is sometimes done, the law will imply an emancipation of the son, and will give him the benefits of such contracts as are made with him for his services.

In Dedham vs. Natick, 16 Mass. R. 135, Mr. Justice Wilde, in delivering the judgment of the court, remarks, that “ the mother, after the death of the father, remains the head of the family. She has the like control over the minor children as he had when living. She is bound to support them, if of sufficient ability, and they cannot, by law, be separated from her.”

A similar principle is laid down in the case of the Trustees of Bloomfield vs. Trustees of Chagrin, 5 Ohio Cond. R. 193. And in Hillsborough vs. Deering, 4 N. H. Rep. 95, the court, speaking of unemancipated minor children, say, “ By the common law, and independent of the statute, such children are entitled, and have a perfect right to support from their parents, and correlative to this duty of maintaining their offspring is the right of parents to the services and earnings of their children, so long as the latter remain under their control.”

The plaintiff in this case was clearly in no sense under the control of his mother at the time of his employment with the defendant. He may well be considered as emancipated at that time from'the control of his parents by misfortune, which may be as effectual for that purpose as the voluntary emancipation of them by their parents. Lubec vs. Eastport, 3 Greenl. R. 220; Sydney vs. Winthrop, 5 Greenl. R. 123. In Riley vs. Jameson, 3 N. H. Rep. 29, Ch. J. Richardson says, “ a mother stands on different ground from the father in respect to her children. She is bound to support her children only when she is of sufficient ability, and they stand in need of relief. While a mother actually supports her minor children at her own expense, she is entitled to their services, and they may perhaps be presumed to be in her employment. But in the present case it did not appear that the mother maintained the defendant at her own expense. He may have had property sufficient to maintain him; and she may not have been of sufficient ability. There is no ground, then, to presume, from the circumstance that the defendant lived with his mother, that he took possession of the locus in quo in her right.” Upon the authorities cited, it would seem to be well settled that parents are not entitled to the earnings of their emancipated children; that they may be emancipated by misfortune, as well as by the assent of their parents. And it would seem to be as well settled, that it is only when parents are bound to maintain their children, or actually do maintain them, that they are entitled to their earnings. And no case is found, and it is believed none can be found, giving any countenance to the doctrine, that an insane mother, who has neither the ability to support herself nor her children, but who is a pauper, is under any obligation for the support and maintenance of her minor children, or in any manner entitled to their earnings. It seems entirely clear, upon the principles maintained in all the authorities, that the mother has no right or claim to the services of a minor child, in a case where she is not bound and liable for its support. When no such duty exists, no such right exists. The right to the services arises directly out of the duty and liability for support. And we are all of the opinion that the instructions of the court in this particular were correct.

But it is farther contended in this case, that if the mother be not entitled to recover the earnings of the plaintiff, yet the town of Moultonborough is entitled thereto, inasmuch as the mother was a pauper; upon the ground that our statutes make provision to the.effect, that, if parents are paupers, the minor children of such parents are also paupers, and the earnings of the whole go to the town. It cannot be denied, that, if the premises assumed were correct, that the minor children of pauper parents are paupers, the consequences would also follow which are contended for.

But that position cannot be maintained; it was never in the contemplation of the Legislature that the mere fact of the pauperism of a parent should necessarily make the minor children paupers also. Nor was it the intention of the Legislature that the earnings of minor children, not paupers, should go to aid in the support of parents that are paupers. The result of any such construction of the statutes as that contended for, would inevitably lead to the pauperism of the children. Without other means, if the law diverts their earnings from their support to that of their pauper parents, then indeed the pauperism of the children is the neccesary consequence. But the statute is not so in terms, nor, in our opinion, in fair and legal construction of its terms, nor in its spirit, nor in the intention of those who enacted it. 1 N. H. Laws, 804, sec. 7.

There is no fair pretence that the plaintiff was a pauper, unless such a consequence could follow from the mere pauperism of the mother. He never applied for aid from the town. He was at the time when the defendant’s intestate took him into his employment, earning wages beyond his mere support and continued to eammore than was sufficient for his clothing, support, and education, while in the employment of the defendant’s intestate, as found by the verdict. He was not then a pauper in fact or law. The town are not entitled to the earnings of the plaintiff. It is therefore of no consequence whether the evidence offered by the defendant of his intestate’s acting as overseer of the poor was competent to-prove his official character as such overseer of the poor or not. It does not appear that he acted or intended to act in the employment of the plaintiff in his official character. Could he act in the double capacity of agent to let to hire, and of employer ? Besides, as before suggested, he could not treat the plaintiff as a pauper, until he became a pauper in need of relief.

The evidence of the declaration of the defendant’s intestate, contained in Moulton’s deposition, was properly rejected by the court. It was the declaration of the defendant’s intestate of what a third person had declared. It was not a part of the res gestee. It was at most mere hearsay evidence as related by a party. Besides, Lee is a witness, and, if the evidence were material, could testify to the reason why the defendant’s intestate took the plaintiff from his employment.

Upon these views of the case, the other rulings not referred torn the opinion are immaterial.

On the whole, we are clearly of the opinion that the action is-well maintained, and that there must be •