of the latter can be imposed upon the former.1 An opinion appears to have prevailed, to some extent, that a father must answer for all the civil injuries inflicted by his child, and we may suppose, therefore, that there is some foundation for this sentiment in the common sense of mankind; but our unwritten law imposes no such liability, and in view of the rulings of the Courts it must be regarded as without foundation.2

§ 316. Right of recovery for injury to child.—Where a child suffers wrong he may maintain his action for damages, and besides this, the parent may claim indemnity for such loss as he may suffer by deprivation of the services and labor of the child, together with expenses incurred in illness caused by the injury.

The common-law rule puts the parent's right to recovery for injuries to the child upon the same basis as that of the master when he is deprived of the services of a servant, and limits him to compensation only for such loss, with necessary expenses incurred in cure of the injured person, making the loss of services the gist of the action; so that if the child is too young to be of service, or is by any cause incapable of performing any services, the foundation fails, and there may be question whether, in view of the fact that from extreme youth or incapacity there can be no element of service, the father could even maintain a special action for necessary expenses by him in having a child cured who could not act the part of a servant.3

par

In the United States, the rule is more liberal toward the ent, and, because of the duty which all laws of nature and

1 Schouler's Dom. Rel. 361-2; McManus v. Prickett, 1 East, 106; Foster v. Essex Bank, 17 Mass. 479; Campbell v. Stakes, 2 Wend. 187; Bullock v. Babcock, 3 Ibid, 391.

2 Paulin v. Howser, 63 Ill. 315, which was a suit for damages against the father for injuries by a dog being set upon a hog by defendant's son. The language of the decision is: "A father is not, nor can he be, held responsible for the unauthorized trespasses of his minor children. In that respect, the child occupies the same relation to the father as does a servant. He is liable for the acts of either when performed under his directions or in the course of their general employment; but not for their trespasses committed independent of their employment, or not under directions."

32 Hilliard on Torts, 518-29; Addison on Torts, 697; Grimell v. Wells, 7 M. & Gr. 1041; Rogers v. Smith, 17 Ind. 323; Sykes v. Lawlor, 49 Cal. 237; Dennis v. Clark, 2 Cush. 347; Hall v. Hollander, 7 Dowl. & Ry. 133; 4 Barn. & Cres. 660; Schouler's Dom. Rel. 351-2.

society recognize as imposed on the parent, of properly caring for his child when it is ill, he who adds to the care and expense which these laws impose must bear the additional expense in cases where the child himself could maintain the action.

The departure from the common-law rule has, however, been made with no inconsiderable degree of hesitancy and caution, the Courts in America only yielding after repeated attacks upon the principle involved; but the progress toward recognition of the rights of the parent has been steady, until they are now fully established. Thus, in a case where a child, too young to do any labor, was injured by a mare, alleged to be vicious, the father, in his own name, brought an action for damages; defendant urged the common-law rule, but the Court held it not to be applicable in Massachusetts, and decided that "if a legitimate infant child, a member of his father's household, and too young to be capable of rendering any service to his father, is wounded or otherwise injured by a third person, or by a mischievous animal belonging to a third person, under such circumstances as give to the child himself an action against such person for the personal injury, and the father is thereby put to trouble and expense in the care and cure of the child, he may maintain an action against such person for an indemnity.”1

1

§ 317. The duties of the child to its parent are naturally of a less onerous character than such as are imposed upon the

1 Dennis v. Clark, 2 Cush. 347; Schouler's Dom. Rel. 352; Sykes v. Lawlor, 49 Cal. 236. "The current of English authorities is to the effect that, in an action by a parent for injuries to his minor child under his care, the gravamen of the action is the loss of service, as incidental to which he may recover the expense of nursing and healing the child. But if the child be of such tender years that it was incapable of rendering any service whatever, there could be no recovery, even for the expenses. But, in this country, a more liberal rule has been adopted; and the best considered cases hold that, inasmuch as it is a duty enjoined by the law of the land, as well as by the laws of nature, upon the parent to care for and heal his injured minor child, he who willfully or negligently occasioned the injury should be held responsible for the expenses incurred, without reference to the capacity of the child to render service to the parents."

Karr v. Parks, 44 Cal. 46, in which, moreover, it was held that: "Where an infant child sues, by her father as guardian, for damages for suffering and deformity caused by the act of a vicious animal belonging to defendant, and recovers judgment, such judgment is not available as a bar, or admissible in evidence, in a suit brought by the father in his own name for services rendered and expenses incurred in the care of the wounds inflicted upon the child."

father toward his offspring. As has been seen, the services of the child during minority, in such employment as he may be able to engage in, consistent with proper educational demands upon his time, are to be given to the parent, and generally it may be said that upon children the law enjoins obedience and assistance to their parents during minority, and gratitude and reverence during the rest of their lives.

The obligation of a child to support its parent in old age or infirmity is almost entirely a moral one; and as such, there being no pre-existing legal liability, it cannot legally be enforced, except in the few States whose statutes supply the defect of the common law to oblige the child, when of age, and able so to do, to support its parent, when the latter, from poverty, age, or infirmity, cannot procure the means of a livelihood.1

§ 318. Transactions between parent and child, as to strangers.-Transactions of parent and child in business, wherein third parties are interested, may raise questions of interest from the peculiar relations existent between them.

Thus, in a recent case, the proposition was stated, and urged

12 Kent's Com. Sec. 208. "The laws of New York have, in some small degree, taken care to enforce this duty, not only by leaving it in the power of the parent, in his discretion, totally to disinherit, by will, his ungrateful children, but by compelling the children (being of sufficient ability) of poor, old, lame, or impotent persons (not able to maintain themselves) to relieve and maintain them. This is the only legal provision made-for the common law makes none -to enforce a plain obligation of the law of nature." (Edwards v. Davis, 16 Johns. 281; Rex v. Munden, Str. 190.)

In Massachusetts, the statutory provision is very broad: "The kindred of any such poor person, if he have any in the line or degree of father or grandfather, mother or grandmother, children or grandchildren, by consanguinity, living within this State, and of sufficient ability, shall be bound to support such pauper in proportion to their respective ability." (Rev. Stat. Mass. Chap. 46, Sec. 5.) But such proceedings as are prescribed by the statute must be had, and strict compliance with the law shown, as it is in derogation of the common law, at which a son is not liable for the support of an infirm and indigent parent. (1 Parsons on Contracts, Sec. 312; Edwards and Wife v. Davis, 16 Johns. 281.) "There is no common-law obligation by which a child is liable to support an indigent parent; but the liability of the child is created solely by statute, and therefore the law does not imply a promise from the child to pay for necessaries furnished without his request to an indigent parent, and the natural obligation can only be enforced in the mode pointed out by the act for the relief and settlement of the poor." But see Succession of Lyons, 22 La. An. 627.

with great ability, that a father, being intrusted with the sale of property, cannot sell it to his son.

That an agent cannot become the purchaser of property which has been placed with him for sale results from the peculiar trust reposed in him, and the antagonism to that trust which may be assumed from his being, in personal interest, adverse to the duty to obtain the highest price to be got for the property.

This restriction can only be removed by the agent fully informing his principal of all the facts, giving his opinion truthfully and with candor as to value and price obtainable, and so openly acting in the premises as to rebut the presumption that the principal relied upon any thing, or information, other than such as both parties had in common and alike.

But if the agent become in any way, directly or indirectly, the purchaser, without such a change of the general relation, he becomes a trustee for the principal, and will be deemed to hold the property in trust for him, and may also be held responsible in damages.

Without such entire candor, fraud in the purchase will be presumed; it will not be necessary to show it affirmatively, and the fact that the agent paid a fair price is unimportant; from such a purchase the law implies fraud.1

This restriction extends not only to the agent himself, but to his clerks and employees; the rule, as laid down by the standard authorities, is that the disability extends to all persons who, being employed or concerned in the affairs of another, acquired a knowledge of his property. It would work an entire abrogation of the rule to hold the principal subject to its operation, and exempt his clerks and agents from its effect, by opening the door to its evasion and destroying its vitality and virtue.2

1 Davoue v. Fanning, 2 J. Ch. 260; Claflin v. F. & v. Carroll, 35 Ibid, 388; Conkey v. Bond, 36 Ibid, 429.

C. Bk. 25 N. Y. 293; Case "An agent, under a gen

eral authority to purchase, cannot buy from himself, without the knowledge or consent of his principal. Such a transaction is a breach of duty, and the contract is subject to rescission, irrespective of any question of intentional fraud, or actual injury."

2 Ex parte Barnett, 7 Jurist, 116; Owen v. Foulkes, 6 Ves. 630n.b; Ex parte James, 8 Ibid, 337; Ex parte Linwood, 8 Ibid, 343.

Gardner v. Ogden, 22 N. Y. 327. "The clerk of a broker, employed to make sale of land, who has access to the correspondence between his principal and the vendor, stands in such relation of confidence to the latter that, if he be

A father, where acting as an agent for the sale of property, may, however, sell to his son, although, from the relationship and intimacy of the parties, imputations of fraud are liable to be made. But if the fact appears that, from his relation, the son acquired from his father such information as he alone could impart, by committing a fraud on the principal, or if it appear that, by access to papers in the father's possession, or any other means, the son, through such relationship, became aware of facts which induced the purchase, there appears to be no good reason why the rule affecting clerks and employees would not apply, and the circumstance that a son buys property of a father, who is, as to it, the broker for another person, would be one naturally pointing suspicion, and may be regarded upon allegations of fraud by the broker in making the sale.

The rule does not appear to be so well settled as is to be desired, but the latest case goes to the length of deciding that the relationship of a father to his son will not, of itself, invalidate a sale made by the father to the son, without proof of fraud. As before seen in the case of a clerk or employee of the agent, a sale made to him is presumed to be fraudulent, or perhaps, more strictly speaking, the rule is as with respect to a trustee dealing with the property of the principal, fraud is not a necessary ingredient in testing the validity of the transaction;1 but the general reasoning appears to warrant the distinction made, and it is but reasonable to consider that the son may be held to buy upon his own judgment and information, not obtained through the relationship; while as to the clerk employed in the agent's affairs, the presumption would be that he was aware of the advantages of the purpose, through his employment about the affairs of the vendor.2

comes the purchaser, he is chargeable, as trustee, for the vendor, and must reconvey or account for the value of the land."

In this case, the clerk was compelled to reconvey so much of the land as remained in his hands, and to account for the proceeds of what he had sold, although the price paid by him was fair and adequate, and the broker was exonerated from fraud in the sale.

1 Boerum v. Schenck, 41 N. Y. 182; 1 Story's Eq. 322; Coal Co. v. Sherman, 30 Barb. 553.

2 Lingke v. Wilkinson, 57 N. Y. 445. "The relationship of father and son will not, of itself, invalidate a lease by the former, as agent or trustee, to the latter, or authorize the disaffirmance of the transaction by the principal or cestui que