Gilchrist, C. J.
“A father, without doubt, has a right
to the services of his children during their minority, while they are under his care and are maintained by him.” Putnam, J., in Wodell v. Coggeshall, 2 Met. 91; 1 Bl. Com. 453; 2 Kent 194.
But the parent may assent to the child’s receiving compensation for the services which he renders to his employer; and if he does receive it, the parent has afterwards no claim. This assent may be implied from various circumstances. Gale v. Prescott, 1 N. H. 28.
So, in general, one cannot furnish necessaries to an infant, and mainti? .n an action for the same against the parent, without proof of some authority from the latter to do so. But this authority may result from the circumstances of the parties; as, where the parent places the child in a situation to require necessaries, without providing the means for obtaining them. Pidgin v. Cram, 8 N. H. 352; Rawlins v. Vandyke, 3 Esp. 250.
The substance of this case is, that the plaintiff’s minor son left home, and without the plaintiff’s knowledge was employed by the defendant, who maintained him by paying for his suitable board and clothing, and furnishing trifling sums for pocket money, such as it is customary for young persons in his condition to have. This he did in recompense for the lad’s services.
This the plaintiff suffered to continue for a long time. He suffered the young man to absent himself from home, and did not interpose any objection to the employment in which he had engaged, or to the terms that had been arranged for his compensation. Neither did he make any provision whatever for the support of his son during his absence. He was ignorant indeed of his son’s acts, and of his residence during a considerable part of the period of his absence.
If this was voluntary ignorance, proceeding from a purpose on the parent’s part of abandoning the son to his own devices or fortune, it bears a strong likeness to an assent to all the son’s acts in his own behalf, and to such arrangements as he would be most obviously driven to make for the relief of his necessities.
If, on the other hand, the son had, through design or accident, and contrary to his father’s wishes and endeavors, absconded from his house, and, through his own misdemeanor or misfortune, fallen into want, even if he did not carry with him the credit of the parent to the extent of procuring reasonable supplies, common humanity would require that he should be suffered to apply his own industry for the relief of his necessities. And that is the doctrine of Gale v. Parrott, 1 N. H. 33. Without that privilege the minor would starve, and the law, which is really designed for the protection of infancy, would visit such a fault or error as is here supposed with the penalty of the most debased form of vagrancy.
In any view that can be taken of the case, to hold that this defendant, having, without any improper purpose of harboring the lad, and without any knowledge, so far as it appears, that the father did not consent to the acts of the son, administered to his reasonable wants in recompense for his services, should now be called on to account again for the value of the services so recompensed, would reverse all the sensible rules which govern such cases. All that the plaintiff can be entitled to is the value of those services beyond the amount paid by the defendant for the reasonable support of the young man; and this appears by the auditor’s report to be nothing at all.
An auditor has the power to examine the parties on oath. He must, in the exercise of this power, avoid doing injustice. If one of the parties were dead, or sick, and unable to appear before the auditor, a refusal of the auditor to examine the opposite party, at his own request, would be a reasonable exercise of the auditor’s discretion. Lovering v. Lovering, 13 N. H. 521.
As to the existence of other evidence, that has been held to be immaterial. Fuller v. Little, 7 N. H. 534.
Judgment for the defendant on the report.