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damage? It seems to be very clear that a private per persous to a burdeu whioh cau uot be imposed upon
tioned," "compensation shall be made," says the
contention has no support, either in statute or common is claimed that by the school laws a minor is com pelaw, we must refuse to entertain it.
tent to contract as a school teacher, and therefore The judgments are reversed and a venire facias de such contract may be enforced by the minor the same novo in each case awarded.
as by an adult. It is conceded that the parent has the Merour, C. J., Green and Clark, J.J., concur; Trun right to prevent his minor child from teaching, key and Sterrett, JJ., dissent; Paxson, J., absent. but assenting to her teaching, he, it is argued,
must be held to assent to the contracting, with
all its legal consequences. This is the argument. PARENT AND CHILD-EARNINGS OF CHILD
Is it satisfactory? Does it follow, because the parent
assented to this employment, that he emancipates his -CONSIDERATION FOR DEED-WAR
child, and relinguishes his claim to her services ? * * BOUNTY.
* It appears that the daughter is about sixteen
years of age, and the father was charged with certain SUPREME COURT OF APPEALS OF WEST VIRGINIA,
duties in respect to her, as education, support and proFEBRUARY 12, 1887.
tection, and as some compensation for these duties be
has a right to claim her earnings. And there is no A bounty paid by the United States government, or by a State,
substantial objection to his maintaining this action. city or county, to a minor, a citizen of the United States,
We are quite clear that the recovery will bar any fuduring a war, upon his enlisting in the military service of the United States during a war, as well as his pay, be
ture action by the minor."
In the case of White v. Henry, 24 Me. 531, it was longs to the minor, and not to his father; and if such
decided that a minor was not emancipated by a iparbounty and soldier's pay are received by the father from
riage without the father's consent; and the son havthe son, they constitute a debt due to the son from the father, unless intended as a gift to the father by the son,
ing so married, and gone to sea, being employed by and the father may satisfy such debt by a conveyance of
one who knew he was a minor, but married, the father land to the son, and such conveyance should be regarded
can recover from such employer the wages earned by
such son. The court says: “The father has in no way as made for a valuable consideration, and not a voluntary
consented he should have his earnings, but has always conveyance.
been ready and willing to support him. The defendDILL to set aside deeds. The head-note shows the
ants, knowing that he was a minor, without the knowlpoint. The defendant had judgment below.
edge or consent of the father, employed bim as a seaW. H. Harvey, for appellant.
man, and have paid him his wages in full. To allow
the defense would hold out encouragement to 8008 V.S. Armstrong, for appellees.
impatient of parental control to resist the reasonable GREEN, J. (Omitting minor points.] But it is in authority of their fathers, and give the latter little sisted, that the son being a minor when all these means to secure their own legal rights beyond the exmoneys were earned by him, they all belonged to his ercise of physical restraint." The plaintiff was given father; and when he received them of the son, he re judgment against the defendant for three months and ceived them as his father, and as the person entitled twenty days' wages at the rate of $14 per month, and to the money; and his subsequent conveyance of interest. these lands without any cousideration other than In Weeks v. Holmes, 12 Cush. 215, where a minor these moneys, and when he was solvent, must be re shipped on a whaling voyage without his father's congarded as a mere voluntary and fraudulent convey. sent, it was held the father could recover of the emance, at least against the plaintiff, a creditor, when ployer the fair share, or lay, as it is called ; that is, these voluntary deeds were made.
one per cent of the earnings of the voyage. It would seem to be almost universally admitted And in Bishop v. Shepherd, 23 Pick. 492, it was detbat the father is entitled to the value of his minor cided that where a minor shipped himseli as a seaman child's labor and services. See Day v. Everett, 7 Mass. in a whale-ship, without his father's consent, and de145; Plummer v. Webb, 4 Mas. 380; Gale v. Parrot, 1 serted in the course of the voyage, whereby his share N. H. 28. None have ever disputed that this absolute of the earuings, by the custom in such voyages, was right of the father to his child's labor extended till the forfeited, and inured to the benefit of the ship-owner, child was fourteen years old. But the authorities the father could sue the ship-owner for the value of very generally extend this right, and it seems to me the son's services and earnings upon an implied conjustly, to the father during the whole minority of the tract, if the father repudiated the contract of the son, child; that is, till he reaches the age of twenty-one. as he had a right to do. The services due in this case when the child is legally emancipated from the were for three years. father's control. This seems to me but reasonable, as | If the Wisconsin case be sound law, and it seems to thereby the law would set off some years when the me that it is, then it would be unimportant, in the child may be useful against mauy preceding years Maive and Massachusetts cases above cited, whether when he was entirely helpless, and a simple charge when the son shipped himself as a seaman, being a upon the father. This right of the father to his minor minor, he did so with or witbout his father's consent. child's services is well illustrated by a few cases to In either case the father could recover the wages of his which I will refer, and which bear more or less re son under his contract for pay on the voyage. The semblance to the case before us.
only difference is, that if the minor son shipped himThe first case to which I would call attention is self as a seaman without his father's cousout, the Monaghan v. School District No. 1, 38 Wis. 104. Cole, father could repudiate the son's contraot, and recover J., in delivering the opinion of the court, says: “Is for the value of his services without regard to the conthere any difficulty in the way of the father maintain tract; but if the son shipped himself with the father's ing this action? The daughter was employed by the consent, the father could recover only such pay as officers of the district to teach the district school. A | under the contract the son, it of age, could have rewritten contract was entered into by which it was covered. agreed she should teach the school for four months, But it is universally agreed that the father may vol. and should be paid $25 a month for her services. The | untarily relinquish his child's earnings, though he be father was present when the contract was entered a minor, and allow him to earn for himself, and reinto, and assented to his daughter entering into it. ceive and appropriate his own earnings at his pleasure; The contract bas been performed on her part. But it and such an arrangement between the father and his minor son is called an emancipation of the son. By 12 Mass. 375. The facts in this case were, that when such an agreement the son is put, in reference to his the son was about fourteen years of age, his father services, on the same footing as though he had at told him he might go to sea, and he (the father) would tained the age of twerty-one yoars, when the law give him his time, or all that he should earn, till he itself would emancipate bim. Such an emancipation should be twenty-one years of age. The son accordby the father may be in writing or by parol, and may ingly went to sea, and has followed the course of busibe proved by circumstantial evidence or it may be im ness ever since. The father at different times replied. There are some cases which seem to proceed on ceived the wages earned by his minor son. When the the idea that an emaucipation may arise without the son was about piueteen years of age, the father caused father's agreement, as the result of his failure to per to be executed to the son a deed for eighteen acres of form his obligations as a father, or his utter inability land, which the father had bought and paid for; the to do so. But it does seem to me this is not a correct father being then in good credit, and not involved, principle. See Woods, J., in Jenness v. Emerson, 16 | though he owed one debt to one Church. No account N. H. 489. But the right of the father to emancipate was kept of the wages of the minor son received by bis minor son is unquestionable, and this right exists the father before this deed was made, but it was bethough the father be ipsolvent. See Campbell v. lieved to be equal to the value of the land when so Cooper, 34 N. H. 49; Cloud y. Hamilton, 11 Humph. conveyed to the son, and it was intended as a compen104; Armstrong v. McDonald, 10 Barb. 30; Atwood v. sation for the wages of the son, so received from time Holcomb, 39 Conu. 270; Lackman v. Wood, 25 Cal. 147; to time before that by the father. The father afterMcCloskey v. Cyphert, 27 Penn. St. 225; Dierker v. ward became insolvent, and the court held that this Hess, 54 Mo. 250; Hall v. Hall, 44 N. H. 293; Chase v. was not a voluntary conveyance to the son, and was Elkins, 2 Vt. 290; Winchester v. Reid, 8 Jones (N. C.), not fraudulent as to Church's debt, which was existe 379.
ing when this deed was made to the son. Parsons, There are two decisions which I have seen in which C. J., said: “It appears there was an equitable conthe facts resemble the case before us, and which were sideration subsisting between the father and son; decided differently, because of a diversity in the facts the former having received the earnings of the latter, of the two cases. The decisions themselves seem to an agreement having been entered into by the father be correct iu both of them; and a statement of the that the son should enjoy the fruits of his own labor, character of these two cases, and an observation of although not of age to be emancipated. The agreethe diversity between them which led to opposite de- ment was a lawful one, and the money received by cisions will, I think, aid us in reaching a correct con the father from the earnings of the son may be equitclusion in this case.
ably considered as the earnings of the son, which if he The first of these cases is Winchester V. Reid, 8 could not obtain it by coercion, was yet a good and Jones (N. C.), 370. In this case the minor son had valuable consideration for any promise from the worked in a gold mine for some two or three years, at father, and would fully justify the cousideration in froin seventy-five cents to ove dollar per day, and he this deed as paid by the son.” This case resembles had no other property but these earnings. Having in much the facts in the case before us, except in the this way accumulated money, when the son was be. importaut particular that in this case there is uot the tween twenty and twenty-one years of age, the father, slightest evidence of an emancipation, and no reason who was then largely indebted and insolvent, made a to believe that there was any agreement between the deed for a tract of land worth from $300 to $400 to his father and the son that the son should enjoy the fruits son, for whicb the son paid him down in cash $250, of his own labor, though he was a minor. It is obvihis earnings in working this gold mine, and gave his ous that but for this agreement, made before the note to his father for $50, the residue of the purchase. wages were earned by the minor son, the last decision money. Parsons, C. J., delivering the opinion of the would have been different, and the deed to the son court, when the question involved was whether this would have been declared voluntary, and therefore deed was fraudulent, says: “A father is entitled to fraudulent as to existing creditors of the father. And the services of his child until he arrives at the age of such would be necessarily our conclusion in this case twenty-oue. Musgrove v. Kornegay, 7 Jones (N. C.), on these authorities, unless there can be drawn a dis71. It is true, a creditor cannot make his debtor work tinction between wages earned by a minor son when to pay his debt, nor can be force bim to make his serving as a seaman in a private mercantile vessel, children work, or sell under execution the valuable and wages and bounty earned by a minor son while iuterest which a father has in the services of his child serving as a soldier in the army of his country. So or which a master has in the services of his appren that the determiuation of this case must depend upon tice. But if in fact a child does work and earn wages, whether there be such a distinction. the proceeds belong to his father, and if the father in The father is clearly entitled to the wages of his invests the money so earned in the purchase of land, faut son serving iu a mercantile vessel owned by a taking the title in the name of the child, the father private individual, except when he has before the being insolvent, bis creditors can subject the land to wages have been earned agreed that the son might the payment of their debts. Worth v. York, 13 Ired. bave all the wages he so earned though he was a 206. Therefore when the son worked at the gold mine, | minor. But it does not follow that the father is enhis wages belonged to his father, and he was bound as titled to the wages and bounty received by his minor an honest man to bave taken the money and applied it son, serving in the army or navy of his country as a to his debts, instead of attempting, under the color of soldier or sailor with the father's conseut, though the this money, which was his own, to pass this land into father never agreed with the son, before such services the hands of his son. The deed is voluntary and void were rendered, that he should have either the wages against creditors." The appellants insist that the case or the bounty. If in such a case the father is not enibefore us is substantially like this case; and it is, titled to the bounty and wages, then the decision of unless there is a distinction between wages paid a the Circuit Court in holding the deeds from the father minor for working in a gold mine and wages and to the son to have been made for a valuable considerabounties paid a minor for military services in the tion, and were therefore not fraudulent and void as to army of his country. Whether this would make any the father's creditors, must be sustained. Otherwise difference we will presently see.
it must be reversed. The other case to which I refer is Jenney v. Alden, | The oldest case on this subject which I have seen 18 an English case, Carson v. Watts, 3 Doug. 350. This listing, and not wages; and it belongs to the minor, was 9 suit brought to recover a minor's share of a and not to his father or master.” The court says prize taken by a privateer vessel during the war. It (p. 529): “It has been held in Banks v. Conant, 14 was brought by the administrator of the minor sailor | Allen, 497, that a bounty paid by the national governagainst the owner of the privateer vessel, and the meut, or by a State, city or town, to a child or apquestion involved was whether the minor's share of prentice upon his eulisting into the military service of the prize belonged to bim or to his master, as the the United States, belongs to him, and not to his minor, during all the time he served on this privateer, father or master." was an apprentice as a mariner, and the master re In Kelly v. Sprout, 97 Mass. 169, it was decided that ceived the wages due him for the two voyages the bounty inoney, to which a minor becomes entitled minor had made, and now claimed the prize money | upon his enlistment as a soldier, belongs to him, and which was coming to this minor, his appreutice. The not to his master, and that an agreement to give his following were the opinions of the different judges in military bounty to his master for permitting bim to the case :
enlist was voidable by the apprentice on the grouud of “Willis, J. I think the master is entitled to all the
infancy. wages or money fairly acquired by the apprentice as So too money paid to the minor for his enlistment for labor or service; but to any extraordinary gains as a substitute, is to be regarded as a gift by the govhe may acquire out of the usual course of his service I ernment, and the regular pay of the soldier which is think the master not entitled. Suppose that in case regarded as pay for services rendered. It seems to of a wreck at sea, an apprentice, by any exertion of his me that there is no well-grounded distinction between own, had recovered part of the wreck from a ship the two. In time of war the government has a right stranded, would the master be entitled ?
to demand military service of its citizens, whether “Lord Mansfield. It is very extraordinary that no adults or minors, And it may compel the service, case has occurred since 1747. I did think it had been whether the citizen be minor or adult, whether he decided. Upon the first argument I thought it clear does or does not consent, and it may fix itself the that whatever an apprentice who runs away gains in price it will pay for such services. It seems to me another service, eo nomine belongs to the master, and therefore that this sovereign power of a government is earned for him; and if it is any thing specific, the to require the military services of an infant, a citizen, master may bring trover for it. I could see no differ in time of war, on what terms it pleases, makes it ence in the case of a privateer or letter of marque, be- | regular to pay to such citizen as much a gift or bounty tween wages and prize money, which is in lieu of as what is paid to induce the citizen to volunteer, is wages. In men-of-war there is a difference. This is all to be regarded in the some light as bounty, and not like the case of extraordinary gain, as the instance pot as way for services. The sovereign power of the put, treasure trove, recovery of wrecks, etc., for that is | State supersedes the rights and powers of a father no remuneration of services. But I am now struck over his infant child in such a case; and as it may very much with the usage, and am unwilling to go | require the military services of an infant in a war, if against it. We must take the usage to be as stated | it chooses, without any compensation, so it may fix by Mr. Ward [tbis usage was that the apprentice what his compensation shall be. And if the State should have the prize money, and the master the fixes the bounty to be paid, and the regular pay of wages), and I think it ought to decide.
tbe soldier, and directs it to be paid to the soldier “Buller, J. Independently of statutory regulations, who volunteers, whether a minor or an adult, no the prize money is as much a bounty of the crown on other person, in case the soldier be a minor, can claim board privateers as on board king's ships. There does such bounty or pay, whether the minor has been not seem much difference in the case from that cir- | emancipated or not by his father or master. The cumstance. I rather incline to the opinion that the minor's right to receive such pay and bounty does not apprentice is entitled to the prize money acquired." arise from his having obtained the consent of his
The next oldest case is United States v. Bainbridge, father to receive the same, but from a better reason, 1 Mas. 71, decided i: 1876. Judge Story, in the opin- | that his sovereign State has directed it to be paid to ion in this case, on page 83, says “All the acts, from him personally. the first establishment of the navy, authorize the em I am therefore of opinion that in this case Bartley ployment of midshipmen (who are invariably minors F. Miller, though a minor when he received his when they enter into the service), and all the acts bounty and pay as a soldier, was entitled to retain since the statute of June 30, 1798, ch. 81, including them as his own, and his father having received such those now in force, and under which the present ap bounty and pay, he thereby became indebted to his plicant has been enlisted and held in service, in ex son; and as the amount of his indebtedness, includpress terms authorize the president to engage and ing interest, exceeded the value of the land which his employ 'boys' in the ordinary duties of the navy. In father conveyed to him, sucb conveyances cannot be no one of them is there any provision requiring the regarded as voluntary and fraudulent against tbe consent of parents or guardians to their engagement, plaintiff, a creditor of the father. This case, on this or authorizing them to make it. The laws manifestly view of the law, becomes very like the case of Jenney contemplate that it was a personal contract made by V. Allen, 12 Mass. 375, and the principles on wbich the the infants themselves for their own benefit. They deed to the son in that case was decided to be not are entitled to the pay, the bounties and the prize fraudulent and void, must control in this case, and money earned and acquired in the service. To sup require us to hold the two deeds from the father to pose that the Legislature meant to authorize an in the son as made for a valuable consideration, and not fant to enlist in the navy, and yet the contract should | fraudulent. For these reasons the decree of the Cirbe voidable at his election, would be to suppose that cuit Court appealed from must be affirmed, and the it meant to repeal the rules and articles of the navy in appellees must recover of the appellent their costs in his favor, and enable hiin to desert when his services | this court expended and $30 damages. were most important to the public."
The otber judges concurred in tbis opinion. In Mears v. Bickford, 528, it was decided that “ upon a contract made with his father's consent, between a NEW YORK COURT OF APPEALS ABSTRACT. minor and the defendant, to enlist as a substitute, the father cannot maintain an action in his owu | CHATTEL MORTGAGE - VALIDITY – POSSESSION -name. The bounty money is a gift to the person en: PROVINCE OF JURY-NOTICE – EVIDENCE.-11) In an
action against a sheriff for levying upon a stock of tract was made in New York on the second of Feb. goods in plaintiff's possession as mortgagee, the de- ruary, 1881, and the plaintiffs rely upon a bill of ladfense was that the mortgage was frauduleutly given to ing showing that on the very pext day, at Stettin, iron protect the mortgagors against the claims of their rails answering in description to those named in the creditors, and that the mortgagors were permitted to contract were put on board a veseel chartered for New make sales out of the mortgaged stock for their own | York. Therefore respondents' contention is that the benefit. There was evidence tending to show that the whole coudition is satisfied ; and “if any delay there. mortgage was given for a valid indebtedness, and that after occurred to the prejudice of the defendant, he the mortgagees employed an agent to look after the must look to the ship for his indemnity." The last goods, and protect their interests. Held, that the position fails when we see that no privity existed question of fraud was properly submitted to the jury. between the defendant and the vessel or its master, (2) In such action there was evidence that the plaintiff and that its only contract relation was with the plainmade an arrangement with the mortgagor's book tiffs. The solo object of prompt shipment was to keeper by which the latter was to look after the in secure a speedy arrival for delivery in New York. terest of plaintiff as mortgagee. The court charged Until then the goods were at plaintiffs' risk, and only the jury that it was for them to say whether such then could the defendant's liability attach. Before arrangement, “if made, was made in good faith, and that event happened there was to be neither transfer the intent was a change of possession and control, or of title nor transfer of possession. It is quite unimon the other band was a blind." Held, that a subse portant to inquire how it might be as between the quent request by defendant to charge that “the pos master of the vessel and the plaintiff or the shipper, session of plaintiff by the book-keeper was not such a one of whom may be assumed to be the owner, and possession by plaintiff as to remove the case from un the other, by virtue at least of the bill of lading, der the statute," was properly refused. (3) Defend- entitled to possession. As to the plaintiffs in the case ant's request to charge that “if the jury found that before us, it is more reasonable to construe the conthe plaintiff had an agent in the store of the mort dition of prompt shipment as a precedent to delivery, gagors during the time the mortgage was in existence and so relating to the actual commencement of the who knew the full facts of sale out of the mortgaged voyage that the known unnavigable condition of the property, and that the mortgagors disposed of the pro river could furnish no excuse for the delay. The de. ceeds of such sales for their own account, they should fendant was entitled to such timely delivery as would find for the defendant,” held properly refused, (1) be follow an effective shipment; in other words, to an cause the testimony did not warrant the assumption exact performance by the plaintiffs of their contract that the mortgagors made sales, and applied the pro- to ship and deliver, not two things separable in ceeds to their own use; (2) because even if the plain their nature, but two steps to a single end. That intiff, through its agent, had notice of such sales and volves not only a purpose to transport, but an expectaappropriation, such notice was merely evidence from tion that transportation would commence, if not at which a previous agreement to permit them might be ouce, certainly within a reasonable time. Shipment iuferred. (4) A party may be examined, as to his own cannot be said to have been made from Europe when iutentions and motives, when a questiou of fraudulent the port selected had no passage-way or outlet. Nor intent on his part is in issue, but he cannot testify as can it be fairly argued even, that the iron was shipped to the motives or intent of another party. (5) Where “for delivery in New York," if it was apparent to the a witness has been examined upon a point in his direct shipper that the vessel could not leave the docks where examination, and is not cross-examined as to such it took in freight. Something more than shipment point, it is discretionary with the trial court to permit was bargained for, viz., prompt shipment; and the further testimony on the point by the same witness on delivery was to be within such time, as dangers of the redirect examination. April 19, 1887. Manufacturers sea only excepted, might reasonably follow. Notbing & Traders' Bank of Buffalo v. Koch. Opinion by less could have been in the minds of the party than Rapallo, J.
expedition, or immediate and effective or beneficial SALE – DELIVERY — CONDITION FOR PROMPT SHIP shipment as a step toward delivery. Payment was MENT.- A contract was made in New York, on Feb. postponed to delivery, both to be made in New York. ruary 2, 1881, for the sale of "about one hundred tons The sale was for sbipment from Europe, altogether of old iron signol rails for prompt shipment by sail from at the vendor's expense and risk, and no exception Europe, aud for delivery ou dock at the port of New was provided for save “dangers of the sea," among York," at a certain designated price. On the follow which a certain and safe confinement in port is ing day (February, 3), a quantity of rails were loaded not included. Duncan V. Topham, 8 C. B. 225. ou a ship in Germany lying in a river forty miles from “ Prompt' is synonymous with “quick," "sudden," the sea. This river was frozen fast at the time, and “precipitate." Indeed one who is ready is said to be remained upnavigable until the beginning of the prepared at the moment; one who is prompt is said to following month of April, when the ship sailed, and be prepared beforehand. Such represents the con. reached New York on June 14, after a voyage of ordi dition of the plaintiffs. Their immediate loading of nary length. The vendors then tendered the rails, the vessel shows that they were prepared beforehand; and the vendees refused to accept them, alleging a de
but it their construction of the contract is correct, the cline in their market value pending the delay in ar qualifying word might as well be one of postponement rival. The evidence showed that rails of a similar aud delay. The fault was with the plaintiffs. It was character could have been readily obtained in other optional with them to ship from any port in Europe. European ports, wbere a delay from ice could not have Il at the time of shipment, the plaintiffs or their occurred. Held, that the vendors had not complied agents knew, or might have known, that detention with the provisious of the contract for “prompt ship and delay at the place of shipment, and before ground ment," and that they consequently were not entitled could be broken for the voyage, were unavoidable and to recover in an action brought by them against the to be expected, they must have also known that the vendees. This implies expedition, admits of less de delivery could not be made as contracted for, and the lay than would be permitted under a covenant to act subsequent tender was too late. It was not a “prompt merely within a reasonable time, and in effect the shipment," and the defendant was not bound to replaintiffs interpret it as meaning “ directly or " atceive the cargo. I have not overlooked the argument once." Sucb indeed was their conduct. The cone of the plaintiffs by which our attention is directed to