
    David Benson versus Joshua Remington.
    A father is entitled to the earnings of his daughter, while under age.
    This was an action of assumpsit brought by the plaintiff for wages due him for the services of his daughter. Upon the general issue pleaded, the cause was tried before Sewall, J., in December last. There was a verdict for the plaintiff; and now Ashman, on the part of the defendant, moves for a new trial, on the report of the judge, which was in substance as follows: —
    The plaintiff supposes the term of service, for which he demands wages, to commence in July, 1801. It appears that his daughter, Phoebe Benson, by whose labor these wages have been earned, was then thirteen years of age; that she had been, for some years before that time, in the family of the defendant; that, having been found in a very helpless condition, she had been taken by the defendant and his wife from the family of the plaintiff, which he had forsaken and left in extreme poverty ; that in July, 1801, the plaintiff, having returned to his family, applied to the defendant for payment of his daughter’s wages to that period. This demand was compromised by the opinion of some neighbors that the plaintiff was [ *114 ] not entitled to any compensation *at that time. The defendant then offered to take the daughter, jf her father would engage her to him until she should arrive at the age of eighteen years, and to give her at that time certain specific articles, in lieu of all other wages. This offer was refused by the plaintiff, but he consented that his daughter should remain with the defendant, provided he should have a right to take her away whenever it should please him. The daughter continued with the defendant, and in his service, until December, 1804, about three years and five months, when the plaintiff took her away.
    The judge who sat in the trial directed the jury to find a verdict for the plaintiff for such sum and amount of wages as they might think due, upon the whole; and they found accordingly.
    The verdict was. taken, subject to the opinion of the Court whether the plaintiff, under these circumstances, can maintain this action for the wages and earnings of his daughter.
    
      Ashman, for the defendant.
    It does not appear that the present .plaintiff has ever been at any expense, or ever paid any attention to this child, either before or during the time for which he demands ner wages. It is presumed that the only right on which a parent can entitle himself to the services of his child arises from the provision he makes for the support of the child, and the care and labor he bestows on its instruction and education. Here is not even this ground on which to raise a promise. If the plaintiff recover this money, he receives it to his own sole use, and the child is not to be benefited by it. If the defendant really owes these wages, he owes them to the child, who has rendered the services, and she ought to have brought the action in her own name by her next friend.
    Woodbridge,
    who was to have argued in support of the verdict, was stopped by the Court.
   Sewall, J.,

observed that, at the trial, he had some doubts in this cause; but since that time, on recurring to the books, and recollecting some former determinations of this Court,'he had satisfied himself that the verdict ought to stand.

* Sedgwick, J.

I will not say that, where a parent [ * 115 ] wholly abandons his child, as the defendant’s counsel seems to suppose the plaintiff has done here, he has a right to the earnings of such child. This is not, however, the present case. It appeared that the plaintiff had paid attention to the child. Every thing that had taken place relative to the services of the daughter, antecedent to July, 1801, was then compromised between the parties, and the daughter continued in the service of the defendant three years and five months under a new agreement, or, to say the least, under a caution from the plaintiff that his legal claims were not waived. The plaintiff was responsible for any necessary expenses of his child; and such expenses, if any had been incurred, were proper to be submitted to the jury, by way of set-off against this demand for wages — of the amount of both which, they were the regular and competent judges. I see no foundation to doubt of the correctness of the decision of the judge at the trial, and am therefore against setting aside the verdict.

Parsons, C. J.

The law is very well settled, that parents are under obligations to support their children, and that they are entitled to their earnings. It is true, parents may transfer this right, or authorize those who employ their children to pay them their own earnings, and the payment will be a discharge against the parents. But no such facts appear in this case. When the plaintiff’s child was thirteen years old, he makes his claim upon the defendant for her past services. This demand was adjusted by an arbitration. After this the plaintiff consented, on certain conditions, that she should continue in the service of the defendant, who was apprized that her father claimed a right to her earnings; notwithstanding which, he continued to retain her. He must be liable to pay the plaintiff the -eal value of the services rendered by his daughter. That value has been settled by the proper tribunal, and there is no sufficient reason for setting aside the verdict.

Judgment according to verdict. 
      
      
         Nightingale vs. Withington, 15 Mass. Rep. 272.—Keene vs. Sprague, 3 Greenl 77.—Plummer vs. Webb, 4 Mason, 380.— Gale vs. Parrot, Adams's N. H. R. 28.— Jenney vs. Alden, 12 Mass. Rep. 375. — Angel vs. M’Lellan, 16 Mass. Rep. 28.— Whipple vs. Dow & Ux. 2 Mass. Rep. 415. — Dawes vs. Howard, 4 Mass. Rep. 97. — Freto vs. Brown, 4 Mass. Rep. 675. — Commonwealth vs. Hamilton, 6 Mass. 273. — Vide Whiting vs. Earle & Tr. 3 Pick. 201. — Burlingame vs. Burlingame, 7 Cowen, 92 — Chilson vs. Phillips, 1 Vern. R. 41. — Emery vs. Gowen, 4 Greenl. 3 Commonwealth vs. Murray, 4 Binn. 492.
     