Kelly v. Davis. conferred a benefit on the delinquent parent, for which the law raises an implied promise to pay on the part of the parent." It is obvious here that the necessity for a contract — “promise" -is not dispensed with, but expressly declared, in the learned chancellor's view of the case; and the rule as stated by him is shown to be not less stringent than that declared by ABINGER, C. B., PARKE, B., & Mr. CHITTY, when practically applied, for, in the same case, the party furnishing the goods to the minor child is held to the exercise of extreme diligence in inquiring into the condition of the parties, parent and child, before he can ask a jury to find from the circumstances of the case an implied promise on the part of the parent; and, "what is actually necessary," he says, "will depend upon the precise situation of the infant, and which the party giving the credit must be acquainted with at his peril." And we do not understand the case of Pidgin v. Cram, 8 N. H. 352, as going to the extent of dispensing with the necessity for a contract or promise on the part of the parent, as the essential foundation of his legal obligation, but only as indicating what circumstances are essential and indispensable to the implication of such promise. It is there said, following the language of the court in Van Valkenburg v. Watson, that, "in general, a parent is under a natural obligation to furnish necessaries for his infant children; and, if the parent neglect that duty, any person who supplies such necessaries is deemed to have conferred a benefit on the delinquent parent, for which the law raises an implied promise to pay on the part of the parent." The learned Ch. J. RICHARDSON then continues as follows: "But in order to authorize any person to act for the parent in such a case, there must be a clear and palpable omission of duty in that respect on the part of the parent." If by the use of these terms the learned chief justice intended to say that the law implies a promise from such a "palpable omission of duty," as is evinced by an absolute refusal, deliberately expressed, to provide for the necessities of his minor children, we should not be able to assent to such a declaration. On the contrary, to use the language of PARSONS, C. J., in Whiting v. Sullivan, 7 Mass. 109, "as the law will not generally imply a promise where there is an express promise, so the law will not imply a promise of any person against his own express declaration; because such declaration is repugnant to any implication of a promise." Kelly v. Davis. But this proposition must be taken with the qualification that where a legal duty-not a mere moral obligationis imposed upon the party making the negative declaration, the law (by force of an indispensable fiction) will imply a promise, even against the party's strongest protestations; as in the case of taxes, or the claims of a town, founded on the statute, for re-imbursement for relieving paupers. "In the civil law, those contracts, which correspond to the implied contracts of the common law, are denominated obligationes quasi ex contractu, and Heineccius denies that they are founded on contract." See Metc. on Cont. 5, 8, 167. See Pot Obl. 115. In the case of Pidgin v. Cram, there was held to be no liability; and the verdict for the plaintiff was set aside upon grounds thus stated by the court: "Here the daughter was nearly of the age of fifteen, and was residing with her mother when the articles were furnished. She may have been capable of furnishing herself with every necessary, by her own exertions. It does not appear that any application was ever made to the defendant for any assistance. For aught that appears he may have been ready and willing to furnish all that was wanted. The evidence in this case was not, then, gufficient to entitle the plaintiff to a verdict for the supplies furnished to the daughter." To the same effect is Townsend v. Burnham, 33 N. H. 277. In Farmington v. Jones, PERLEY, C. J., says: "It does not appear that the support was furnished at the defendant's request, or that he has made any express promise to pay. The plaintiff must rely upon a promise implied in law from the facts stated in the report of the auditor." The claim in that case was for support furnished the defendant's daughter while sick of the small-pox and detained in the house where she was visiting, the same being established as a pest-house by the officers of the town; and it was held, that the facts were not such as to raise the implication of a promise to pay. Now, although one of the earlier cases in this State, Hillsborough 1. Deering, 4 N. H. 86, declares (erroneously, as we think) the obligation of parents to support their children to be a requirement of the common law, independent of any statute, it is not apparent that any attempt has ever been made to enforce such obligation, otherwise than upon the ground of a contract or promise on the part of the parent sought to be charged, nor has it ever been VOL. VI. 64 -- Kelly v. Davis. claimed that mere moral obligation or duty raises any implication of a promise or contract. In French v. Benton, 44 N. H. 30, BELLOWS, J., remarks (concerning the assumption of the plaintiff's counsel in the argument of that cause, that the father, by a palpable omission of duty, such as turning the child out of doors and refusing to provide for him, enables the child to pledge his father's credit for necessaries) that "there is much conflict of the authorities, but the settled doctrine of the English courts now seems to be, that the moral obligation of the parent to support his minor child imposes no obligation to pay his debts, unless he has given him authority to incur them, and that the contract of the father must be proved, just in the same manner as if he were a brother, son or stranger." "The early New York cases held that a clear and palpable omission of duty by the parent would give the child credit and render the parent liable for necessaries," citing Van Valkenburgh v. Watson, and other cases. "In the later case of Raymond v. Loyl, 10 Barb. 483, the cases sustaining this doctrine are examined and questioned, and the conclusion finally reached that there is no legal obligation to maintain a minor son, independent of statute." And he continues as follows: "Without undertaking to decide what is the law of New Hampshire, it is quite evident that the tendency of the modern authorities is to limit the liability of the parent for necessaries to cases where they are furnished at his request, express, or to be inferred by a jury from circumstances, upon the general ground as stated in Bainbridge v. Pickering, 2 W. Black. 1325, that no one shall take it upon him to dictate to a parent what clothing a child shall wear, at what time they shall be purchased, or of whom. All that must be left to the discretion of the father and mother.' A similar tendency exists in respect to promises founded upon the consideration of moral obligations; and it may now be considered as settled that such considerations will not be regarded as sufficient, unless a valid legal obligation had once existed, although afterward barred by some statute or positive rule of law." On the whole, the principles of law applicable to this class of cases seem to take the form of these propositions: That a parent cannot be charged for necessaries furnished by a stranger for his minor child, except upon a promise to pay for them; and that such promise is not to be implied from mere moral obligation, nor from Kelly v. Davis. the statutes providing for the re-imbursement of towns; but the omission of duty from which a jury may find a promise by implication of law must be a legal duty, capable of enforcement by process of law. In accordance with these principles, it will be for the jury to say, in a given case, whether all the facts and circumstances warrant the finding of a promise, expressed or implied. In reaching a result they will be at liberty, of course, and will be likely to take into consideration all the circumstances connected with the parent's neglect, as indicating his intention, views and purposes with regard to the wants of his child, and the weight and controlling influence of all the evidence, governed by the rules of law as we have endeavored to promulgate them, will undoubtedly seldom fail to result in substantial justice and equity. Let us then apply these considerations to the case before us. It 18 quite apparent from the conduct of the minor with regard to the articles purchased, that a large proportion of them were in no sense necessary for the comfort, support or convenience of the minor at the time they were purchased. The fur collar, the kid gloves, the rubber shoes, the boots and the trousers were all made "objects of trade" by the young man, and the suit of clothes, he says, he did not need. The inference from the statement of the case is, that these articles were all deducted from the plaintiff's account and that the balance for which the verdict was rendered, consisted of actual necessaries. But there was no express promise by the father to pay for them, and we are unable, from the facts and circumstances disclosed, to raise any implication of a promise from any clear and palpable omission of duty on the part of the parent. Indeed the verdict of the court is not placed upon any such grounds but only upon these, namely: That the father had sufficient means to yield support to his son when he gave him his time, that he was bound to have furnished him a better education, or more parental care than the son has received, and before he was turned adrift upon the world. And for this failure of duty, which the law properly imposes upon all parents of his ability, the defendant is justly bound to pay the balance of the plaintiff's account." We cannot regard these considerations as sufficient to warrant the finding of the court. They may in special instances be worthy of application in the forum of conscience, but we think they cannot Jordan v. Hanson. be adopted in general practice nor admitted in this particular case. To make the father's liability dependent upon no other conditions than those which are said to be a sufficient foundation for the ver dict of the court in this case would be to expose the parent to the ruinous consequences not only of his son's wasteful extravagance and imprudence, but also to the arts of designing and unscrupulous tradesmen. To follow out the analogy suggested between this case and that of Pidgin v. Cram, before cited: Here the son was seventeen years of age. He was residing with the person with whom he contracted to serve, for wages probably sufficient to pay for all necessary expenses. This fact, and the fact that he was not discharged by his employer but left his service without any assignable reason, shows that he was capable of furnishing himself with every necessity, by his own exertions. It does not appear that any application was ever made to the defendant for assistance. For aught that appears, he may have been ready and willing to furnish all that was wanted. The evidence was not, then, sufficient to entitle the plaintiff to a verdict for the supplies furnished to the son. We have paid no attention to the fact that the defendant had “in some form given the young man his time," since the plaintiff was not informed of that fact, and we have not regarded it as material in this case. Verdict set aside and a new trial granted. JORDAN, plaintiff, v. HANSON. (49 N. H. 199.) Liability of justice of the peace. A justice of the peace is not liable to an action for erroneously refusing to grant an appeal, such refusal being a judicial act. ACTION on the case by Edgar A. Jordan against Richard Hanson. The defendant demurred. The substance of the declaration was that defendant was a justice of the peace; that upon complaint of one Blakely, charging plaintiff with disturbing a religious meeting, one Ray, a justice of the peace, issued his warrant, upon which |