41 Vt. 55 | Vt. | 1868
The opinion of the court was delivered by
The principal question involved in this case, is as to which of the two (the plaintiff or the defendant) the money belonged to, which was paid by the town of Sharon to the plaintiff as bounty money, upon Ms enlisting and being mustered into the United States service as a soldier to the credit of said town, the plaintiff at the time being a minor, and the defendant being his father. It is conceded that the plaintiff enlisted with the consent of the defendant. He did not enlist by the direction or request, or in discharge of any obligation, of the defendant. The duties, obligations and liabilities which he assumed, were directly at variance with the duties, obligations and liabilities that he was under to the defendant by virtue of the relation of parent and child, such as the father could not compel him to perform, and had no right to require of him.
When the plaintiff had enlisted and been mustered into the service of the United States, he was entirely subject to the control, directipn and command of the government, at all times and under all circumstances, until his discharge. The consent of the defendant to the plaintiff’s enlistment, was a virtual emancipation or discharge of the plaintiff from all obligations of service or obedience to the defendant, so long, at least, as the enlistment contract
But the question here involved, is not in respect to wages, or compensation for services, strictly speaking, but relates to a sum paid by the town to the plaintiff, as an inducement to enter into the enlistment contract with the government and to be credited to. the quota of the town. It was more in the nature of a gift than compensation for services. The enlistment contract was not with the town, but the government. He performed no service.for the town as such. , This money was paid him for assuming the risk to life and limb, and the hai’dships and privations incident to service in the army. These risks were all his own, not his father’s, and we think the money he received 'as an inducement to assume these risks, was also his. The father is not entitled to the property of his' children while they are minors,'except 'so far as it is the result of their ‘ services which belong to him. Property derived from other’ sources or by other means, they hold in their own right, and the father has no claim upon it. The father may at any time release his right to the services of his minor child either in whole or in part, for a definite period or during his'entire minority. Whenhe does so, he has no claim upon the child’s earnings during such period. Of he may relinquish his right to the money ■earned by the child, or may give money'to his minor child, and if he does so, he can not resume it again at his pleasure. If he gives money to such child, and afterward receives it from the child upon a promise to repay it at a future time, he is bound by such promise, and can not avoid it by saying that the’money was •originally his.
But even if the defendant had the right to claim this money, the evidence was very strong to show that he relinquished all claim to it and recognized the right of the plaintiff to it, and his right to Control it. He received if from the plaintiff not as his own, But as the plaintiff’s, and, on receiving it, promised to pay out a part of it as the plaintiff directed, and to' pay the remainder to the plaintiff on his return from the army'. He did pay out'a' part as the plaintiff directed, and afterward, when the plaintiff returned
We think the case at least should have been submitted to the .>ry.
Judgment reversed', and case remanded.