BINGHAM, J. The question here presented is whether the plaintiff, whose son was instantly killed through the negligence of the defendants, can maintain an action for damages for the loss of the son's services from the time of his death until he would have atBANKRUPTCY (§ 295*)-JURISDICTION-ACTION tained his majority. It is, conceded that AGAINST TRUSTEE IN BANKRUPTCY.

The state courts have no jurisdiction of an action of replevin against a trustee in bank-in such case. The plaintiff's contention is:

*For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

earnings of his minor son; that by reason of the defendants' negligence the plaintiff has been deprived of this right; that, as the party possessing the right and the one who has infringed upon it are both in existence, the question of the survival of actions, urged as a reason for the conclusion reached in Wyatt v. Williams, 43 N. H. 102, does not arise; and that what is there said inconsistent with this contention is obiter dicta and not material to the decision of the case.

this no action has been brought in which the parent has been allowed damages for loss of services after the child's death-a fact reasonally conclusive as to the law in this state and of the understanding of the profession upon the subject. State v. Railroad, 52 N. H. 528, 548; Bedore v. Newton, 54 N. H. 117; Whitaker v. Warren, 60 N. H. 20, 49 Am. Rep. 302; Poff v. Telephone Co., 72 N. H. 164, 55 Atl. 891.

But there seem to be other substantial reaThe recent cases upon which the plaintiff sons why this action cannot be maintained. relies are Carney v. Railway, 72 N. H. 364, In Campbell v. Cooper, 34 N. H. 49, 62, 63, 57 Atl. 218, and Warren v. Railway, 70 N. H. the subject was discussed at length, and it 362, 47 Atl. 735; but neither of them can be was there said: "At common law the father said to support the plaintiff's contention. In is entitled to the services and earnings of the former the court was considering the his minor children because he is bound to question of damages recoverable under our support and educate them. The right grows statute (Pub. St. 1901, c. 191, § 12) by an ad- out of the obligation and is correlative to it. ministrator of an estate of a minor child kill- When one ceases, the other ceases also. The ed through the defendants' negligence, and it helplessness of the infant, demanding the was held that the administrator could not tutelage and support of the father, in conrecover for the child's "earning capacity" templation of law terminates in ordinary from the time of his death until he attained cases at 21, and the child becomes emancihis majority, although he might from that pated from parental control and entitled to time on, for the reason that under the stat- his own earnings. If, by reason of continued ute "damages are to be assessed on the basis helplessness, arising from physical or mental of the loss suffered by the deceased party and infirmity, the emancipation does not then his estate," and that, if the son had lived, his take place, and the burthen of the support earnings during minority, unless emancipat-continues, the corresponding right to the served, would have belonged to his father, or in ices continues with it. If, anticipating the case of the father's death to the mother. It cannot be inferred from this holding that the court understood, or undertook to intimate, that the father could have maintained a suit for the loss of the son's services from the time of his death until he reached his majority. In the latter case the death of the child was not shown to have been instantaneous. This appears from the charge of the court to the jury. 209 Briefs and Cases, 609, 611. The statement in the opinion: "Had the child survived, the action would have been brought in its own name. The father's cause of action would have been what it is now, case for the loss of the child's services" must be read with this fact in view, and, when so read, it has reference to the father's right of action for loss of services prior to death. In Wyatt v. Williams, supra, the court said: "At common law, for the killing of a human being, no civil action could be maintained against the person who caused it, by a person standing in the relation of * father or master to the person killed, and the law was the same, whether the act which caused the death was felonious or not." And after discussing the various reasons assigned for the holding, it says that the rule is founded upon public policy, and if the reasons assigned “are various and not altogether consistent, yet the rule has been too long established, and too generally recognized as a settled principle of the common law, to be now shaken by anything short of a legislative act." This case

period of emancipation, fixed by law at the
age of 21, the father surrenders to the son
the right to his earnings at an earlier age,
and permits him to go into the business of
life as his own master, while he thus con-
tinues independent of parental control the
obligation to support him remains suspended.
So, too, if the father drives his minor son
from his home, and refuses to contribute to
his support, the right to his earnings is also
suspended so long as this dereliction of duty
continues; but this obligation to support the
child continues only during the lifetime of
the father." He cannot, at common law,
bind his infant children "to service after his
decease," for the law "imposes upon the fa-
ther no obligation to make provision for the
support or education of his infant children
after his decease. *
not to be considered as having an absolute
right of property in the labor and services
of his offspring until 21. Whatever right he
has, it is but a qualified and contingent in-
terest, depending on their living with him
and being maintained by him, and arising out
of the personal trust under which he holds
them for their protection and tutelage.
While he continues to furnish them support,
he may appropriate their earnings to his own
use; but he has no present property in their
future earnings, except as coupled with the
condition that he shall be burdened with
their support when the earnings accrue."
And it was held that all power on the part
of the father over the labor and services of

The father is

"except so far as such power may be con- | mond v. Corbett, 50 N. H. 501, 9 Am. Rep. ferred by statute." 288), is commensurate with the right of custody. Whatever therefore operates as a release from parental control necessarily terminates parental right of service; and the emancipation of the minor from legal *parental authority, either by the voluntary act of the parent or by operation of law, puts an end to legal claims of the parent to the minor's earnings." That the marriage of the daughter, she being above the statutory age of consent, though entered into in defiance of the plaintiff's wishes and authority, was valid, and, being inconsistent with the enforcement of parental rights, operated as an emancipation from them.

In Jenness v. Emerson, 15 N. H. 486, a minor son was allowed to recover wages due for his labor and services; his father being dead and his mother insane and a pauper. It was there said: "As a general rule, * * parents are under obligation to support their minor children, and in some degree liable for their education and entitled to their earnings." That the "right to the services arises directly out of the duty and liability for support." And it was held that, inasmuch as the plaintiff's mother was a pauper at the time of his employment with the defendants, he was in no sense under her control and could be considered as emancipated, that parents are not entitled to the earnings of their emancipated children, and that they may be emancipated by misfortune as well as by the assent of the parents.

In Kelley v. Davis, 49 N. H. 187, 6 Am. Rep. 499, the plaintiffs sought to recover from the defendant for necessaries sold to his minor son, and it was held that at common law a father was under no legal obligation to support his minor child, and that under our statute no action could be maintained against him for necessaries so furnished, "except by the town, and after notice to the person chargeable."

In Hammond v. Corbett, 50 N. H. 501, 9 Am. Rep. 288, the defendant, a widow, was indebted to the plaintiff, and the plaintiff sought to hold in payment of the debt funds in the hands of the trustee and earned by the widow's minor son, who was not shown to

From these decisions it appears that the parent's right to the services and earnings of his minor child are not absolute, but contingent upon his actually providing support for the child and of his retaining parental control over him; and that when he ceases to provide support, or voluntarily or by operation of law releases his parental authority, his right to the child's services and earnings ceases.

Because of these reasons, the decision in Wyatt v. Williams, and the fact that no action of this nature has ever been maintained in this state, we are of the opinion that the demurrer should be sustained. Demurrer sustained. All concur.

In re HOBBS.

(75 N. H. 285)

have been emancipated or under guardian (Supreme Court of New Hampshire. Rocking

*

ship. And the court said: That they "fail-
ed to discover any sensible ground for a dis-
tinction between the rights of a father and
those of a widowed mother" to the earnings
of a minor child; that neither of them at
common law were under any legal obligation
to support such child; but that the court
thought, "as a compensation
* for
the support, nurture, care, protection, and
education actually afforded and furnished to
the child, the parent has a right to control
and appropriate its earnings during minori-
ty," and were "inclined to hold that, in what-
ever principle this right is founded, whether
it result from the very nature of maternal du-
ties or from that of authority which, upon
the husband's death, devolves upon her by
reason of the guardianship for nurture, tech-
nically speaking, the mother is entitled to the
child's services until her rights are suspend-
ed by the appointment of another guardian,
or the arrival of the child at years of ma-
jority," or he is otherwise emancipated.

In Aldrich v. Bennett, 63 N. H. 415, 56 Am. Rep. 529, it was held: That "the right of a parent to the earnings of his minor child, upon whatever principle it is founded (Ham

ham. June 1, 1909.)

1. ATTORNEY AND CLIENT (§ 38*)-DISBARMENT OF ATTORNEY-GROUNDS-INTENTIONAL MISCONDUCT.

To constitute cause for disbarment of an attorney, it is not necessary that he should be guilty of intentional wrongdoing.

[Ed. Note. For other cases, see Attorney and Client, Dec. Dig. § 38.*] 2. ATTORNEY AND CLIENT (§ 45*)-DISBARMENT OF ATTORNEY-CONDUCT JUSTIFYING. various persons for violation of Laws 1905, p. An attorney, as justice of the peace, tried 501, c. 86, § 10, relating to use of automobiles, but failed to keep the record thereof, as recomplaints not signed or sworn to and without quired by law. He tried some of them upon any warrant and used such purported complaints after they had been once used and one person convicted therein in other later cases for different offenses by inserting the name of the subsequent respondent therein. He received, in such proceedings, money as fines and as cash bail and did not pay it over to the town or county, but converted it to his own use, though his conversion was not intentional; his method of conducting the prosecutions being due to extreme carelessness, indicating a willful disregard of the ordinary modes of procedure in such cases. Held, that his acts constituted ground for disbarment.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 63; Dec. Dig. § 45.*]

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

4. ATTORNEY AND CLIENT (8 58*)-SUSPEN-lessness." SION OF ATTORNEY.

Where it appears that a suspension from practice will work such reforms in his character and mental processes that he will then be of good moral character, trustworthy, and capable of performing properly the duties of an attor ney, he may be suspended for a term, instead of disbarred.

Charles H. Batchelder, for the State. Samuel W. Emery, for Hobbs.

PEASLEE, J. The rule laid down in some of the earlier cases in this state was that there must bave been intentional wrongdo

[Ed. Note.-For other cases, see Attorneying to make cause for the disbarment of an and Client, Cent. Dig. §§ 76-78; Dec. Dig. 8 58.*]

Proceedings for disbarment of Llewellyn F. Hobbs, an attorney at law. Petition for disbarment denied, and ordered that respondent be reprimanded and suspended from practice for six months.

Hobbs was admitted to practice in 1904 on evidence of age, good moral character, and admission and practice in another state, under the provisions of section 3, c. 213, Pub. St. 1901. He has also held the office of justice of the peace. The following charges made against him were found to be true: "That during the summer and fall of the year 1907 said Hobbs, as such justice, held court at said Hampton for the arraignment and trial of various persons charged with violations of section 10, c. 86, p. 501, Laws 1905; but said Hobbs failed to keep such record thereof as is required by law. That said Hobbs has tried, found guilty, and imposed sentence upon respondents in such cases upon complaints which have not been signed or sworn to by any complainant. That said Hobbs has tried, found guilty, and imposed sentence upon said respondents without any warrant having been issued. That said Hobbs has used such purported complaints, after the same had been once used, and one respondent convicted thereupon, in one or more later cases for different and separate offenses, by merely inserting the name of the subsequent respondent therein, and has then used said alleged complaint as the basis for one or more subsequent arraignments, trials, and convictions. That said Hobbs has arraigned, tried, and convicted such respondents without having any complaint or warrant as the basis for such proceedings."

An

attorney. Bryant's Case, 24 N. H. 149;
Barker's Case, 49 N. H. 195. The true rule,
however, is stated in a later case. "The
temptation to which Delano yielded is one
to which he would be constantly exposed in
the practice of his profession. The money he
misapplied was not the money of a client;
but his situation as collector of taxes was,
in substance, the situation of an attorney re-
ceiving money for a client. And when it ap-
pears that he could not be safely trusted in
the former case, it thereby appears that he
cannot be safely trusted in the latter. If
his defalcation had occurred before he was
admitted to the office of attorney, that fault
should have prevented his admission; and,
being enough to prevent his admission, it is
enough to require his removal.
attorney is a public officer. Admission to
and expulsion from his office are regulated
by law. He takes an official oath. The pub-
lic is entitled to ample protection against the
danger of any abuse of the great powers of
the office which the public by its agents has
conferred upon him. *
It is indis-
pensable that an attorney be trustworthy,
and he is not trustworthy if he is capable
of improperly applying to his own use his
client's money, whether he intends to re-
turn it or not. It would be an unreasonable
construction of the statute to hold that his
license cannot be revoked when it invites
the community to trust him in a particular
wherein he cannot safely be trusted.
Legislature could not have intended to abol-
ish the ancient requirement of his continued
integrity, and require another branch of the
government to continue to hold him out to
the world as worthy of confidence, when the
holding out becomes false and fraudulent."
Delano's Case, 58 N. H. 5, 42 Am. Rep. 555.

The

The charge "that said Hobbs has, as such Judged by the standard here set up, the justice, received in such proceedings certain course pursued by Hobbs is such as to plainsums of money as fines and as cash bail, ly call for his disbarment. A justice of the which sums of money said Hobbs has not peace, who conducts the judicial duties of his paid over to the town or county, but has con- office in such a way as to indicate a willful verted the same to his own use," was found disregard of the ordinary modes of procedure "true, with qualification that said Hobbs in criminal cases, has not the moral charhas not intentionally and deliberately con- acter required of applicants for admission verted the money to his own use." There to the bar. One who is guilty of gross carewas an additional finding that "his method lessness in handling trust funds is not a of conducting the prosecution was dre to trustworthy person. That the offenses were

Knitting Mills. The court directed a nonsuit,
and plaintiff brings exceptions. Overruled.

Boss & Barnefield and Alexander L. Church-
James L. Jenks, for plaintiff. Vincent,

ill, for defendant.

not all willful does not much help the mat- Action by Mary Burgess against the Vesta ter. The question is one of protecting the public. The danger may be greater from one incapable of caring for funds or affairs intrusted to him, than from one who, though capable, has on a single occasion failed to live up to the standards set for members of the legal profession. The petty thief is imprisoned for a few months. The kleptomaniac is kept in confinement all his days. There is no idea of punishment in the restraint of the kleptomaniac; neither is there in the case of the removal of an attorney from his office. Each is a step necessary for the protection of society.

Considering the case solely upon the facts as to Hobbs' past career, he should be removed from the office of attorney; but another issue has been presented. A guilty attorney may be reinstated, if he has reformed. In re Enright, 69 Vt. 317, 37 Atl. 1046. In the present case it is the opinion of the justices who heard the evidence and found the facts that the experience of this proceeding, followed by a suspension from practice, has and will work such reforms in the character and mental processes of the defendant that he will then be of good moral character, trustworthy, and capable of performing properly the duties of an attorney. They saw Hobbs at the hearing and have had opportunities to judge of this issue that the other members of the court have not had. In view of all these considerations, the petition for the removal of Hobbs from the office of attorney is denied. The order is that he be reprimanded for willful disregard of proper criminal procedure and for grossly neglecting to turn over or account for fines imposed upon offenders, and that he be suspended from practice for six months.

PER CURIAM. The plaintiff alleges in her declaration that she was in the exercise of due care at the time of her injury. There is absolutely no evidence to support this allegation. She does not, in her testimony, say a word about due care. She says she does not know how her accident happened; but she admits that she had used the same machine for "about an hour or so every day for two or three months," that she operated the machine by means of putting her foot on something to bring the plunger down, and that she knew, if she got her fingers under there when the plunger came down, she would get hurt. It is quite obvious that she was capable of running the machine without injury to herself, if she exercised due care, so that the inference of contributory negligence is conclusive under the testimony; there being no proof of any emergency, or any change of the conditions under which she had operated the machine, during the whole time of her service.

The nonsuit was properly granted, and the exception thereto is therefore overruled, and the case is remitted to the superior court, with direction to enter judgment for the defendant as of nonsuit.

NUGENT v. ALDRICH.

(Supreme Court of Rhode Island. June 26, 1909.)

WALKER and BINGHAM, JJ., did not sit. Vendor and Purchaser (§ 317*)—ACTION FOR The others concurred.

BURGESS v. VESTA KNITTING MILLS.
(Supreme Court of Rhode Island. June 26,
1909.)

MASTER AND SERVANT (8 239*)-INJURIES TO
SERVANT-CONTRIBUTORY NEGLIGENCE.

Plaintiff was injured by getting her fingers under the plunger of a machine which she had used for an hour or so every day for two or three months. She operated the machine by putting her foot on a tread to bring the plunger down, and knew that if she got her fingers under the plunger when it came down she would be hurt. Held that, in the absence of proof of any emergency or change of conditions under which she had operated the machine during her service, she was negligent as a matter of law.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 749; Dec. Dig. § 239.*] Exceptions from Superior Court, Providence and Bristol Counties; Charles F. Stearns. Judge.

PURCHASE MONEY-JURY QUESTION-CON-
FLICTING EVIDENCE.

In assumpsit to recover for a farm and goods sold, where the evidence was conflicting as to the terms of the sale and as to whether the buyer paid the full price to the seller immediately upon delivery of the deed and bill of sale, those questions were for the jury.

Purchaser, Dec. Dig. § 317.*]
[Ed. Note.-For other cases, see Vendor and

Exceptions from Superior Court, Providence and Bristol Counties; Charles C. Mumford, Judge.

Action by James F. Nugent against Edwin F. Aldrich. Verdict for defendant, and plaintiff excepts. Exceptions overruled, and case remitted for judgment on verdict.

Assumpsit to recover for a farm and personal property sold and delivered to defendant by plaintiff.

John J. Heffernan and James H. Rickard, Jr., for plaintiff. George W. Greene, for defendant.

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 73 A.-20