OWEN VS WHITE, 5 Port. 435

COLLIER J. This cause was commenced by summons, at the suit of the defendant in error, before a justice of the peace of Franklin county; where a judgment being rendered against him, he appealed to the Circuit Court of that county; and the case being submitted to a jury, there was a verdict and judgment against the plaintiff in error.

On the trial, a bill of exceptions was sealed by the Judge who presided, as follows: “it was proved by the plaintiff, that the articles sued for, were furnished to the son of the defendant, a youth about eighteen years of age, who was a pupil in a college in the town where the plaintiff lived, — that the defendant lived about eighteen miles from the college.

There was no proof of any authority from the father, to contract the account with the plaintiff; whereupon, the defendant moved the Court to charge the jury, that under the proof in this case, the defendant was not liable, even for necessaries; which instruction the Court refused to give. To which refusal of the Court, to charge as aforesaid, the defendant, by his counsel, excepted, &c.” A father is not bound by the contract of his son, even for articles suitable and necessary, unless am actual authority be proved, or the circumstances be sufficient to imply one.

So long as the child continues under the direction and control of the father, it is left to the discretion of the parent, to determine what is necessary for him; unless it appear, that there is a clear omission of parental duty, in providing for his maintenance.

Where this is the case, the law subjects the father to the payment for necessaries, furnished by a third person, upon the ground, that his neglect to do that, which natural, moral and municipal law, have prescribed as a duty, implies an authority to bind the parent.— (2 Kent’s Com. 162.) If a child leave his father’s house, to seek his fortune in the world, or avoid domestic discipline and restraint, or escape from justice, the authority of the father to purchase necessaries, is not implied.— But if a father abandon his duty to his infant child, so that he is forced to leave his house, he is liable for a suitable maintenance. — And the principle of the distinction is, that in the one case, the father is blameless, and in the other, blameable.—(Angel vs McLellan, 16 Mass. 28.) It is a question of fact, whether the authority of j [the parent, can be inferred from the proof, and con- \ sequently addresses itself to the jury.

But if no ^evidence is given, from which an authority is in-ferrible, and none is in fact, insisted on, there can| be no impropriety in thé Judge, in instructing the; jury, that the base is not made out. Such an instruction, should^however, never be given, where any testimony, though slight, is introduced.

In the case before us, it is stated that “ there was no proof of any authority from the father to contract the account with the plaintiff." Here there is an admission of record, that an indis-pensible link in the chain of the evidence, was wanting; and it would have been no usurpation of power, on the part of the judge, to have charged the jury, that the testimony did not entitle the defendant in error to a verdict, but a course of procedure entirely legal.

In the written suggestions which have been submitted to us, by the defendant’s counsel, it is said, that the instructions actually given, were in conformity with what we have supposed the law to be. In reply, it may be observed, that the bill of excep tions does not inform us, what instructions were giyen, hut only what was refused. The charge asked for, considering the insufficiency of the proof, being proper, its refusal is an error, for which the judgment is reversed, and the cause remanded. HOPKINS, C. J. not sitting.