In re M'Dowle , 8 Johns. 328 ( 1811 )

Per Curiam.

Two objections are taken to the validity of the indenture stated in the return; 1. That it is not executed by the infant; 2. That the word “ apprentice’ is not inserted in the deed.

The first objection is founded on the words of the statute, fLaws, vol. 1. p. 186.) which evidently requires the deed to be executed by the infant, as well as by his parent or guardian. At common law, a parent may bind his infant an apprentice, but the statute must be considered as controlling the common law, in this respect, and as requiring the infant to be a party to the deed. The infant, in the present case, is not therefore bound, and the question is as to the relief which ought to be granted upon the present writ.

The father who, on his part, executed the indenture with the master, sues out the writ. There is nothing-before the court to show any improper treatment of the infant, nor that the party to whom the father intended to bind him has not hitherto faithfully performed the stipulations in the indenture., This is not a case then in which the father has any equity, or any right to complain. He may be bound still by the covenants in the indenture, though the infant is not. It is for the infant alone to take advantage of the defect, and if he does not choose to do it, he may waive the defect, and avail himself of the benefit of the apprenticeship. All that the court are required to do, under the present writ, is to see that the infant is not restrained against his will. The course and practice of the English courts, on the like occasions, is well settled. It was observed by Lord Mansfield, in the case of Rex v. Delaval and others, (3 Burr. 1434.) that, “ in cases of writs of habeas corpus directed to private persons to bring up infants, the court is bound, ex debito justicies, to set the infants free from any improper restraint; but they are not bound to deliver them over to any body, nor to give them any privilege. This must be left to their discretion, according to the circumstances of the particular case.” And in that case, the K. B. refused to deliver the infant to her father, but left her at liberty to go where she would. In the case of Rex v. Smith, (2 Str. 982.) a boy under 14 was brought up on habeas corpus, sued out by his father, to obtain possession of him from his aunt; but the court merely left the boy a liberty to go where he pleased, and the boy chose to stay with his aunt.

In the present case,then, the court can Only declare, that the infants are at liberty to go where they please. They may go and put themselves under the protection and care of their father, or they may return to the service of their mastér.

Ar. B. The Chief fustice then asked the infants where they chose to go, and they answered that they wished to retuni'to their masters. The counsel for the masters suggesting that violence might be used on the part of the father, to gain possession of the boys, the court directed a constable to attend them. Afterwards, the counsel for the father suggested to the court, that improper means and constraint had been used by the masters and others, belonging to the society of Shakers, to induce the children to declare their election to return, and that the answers were not freely given by them to the court. The parties then agreed that the boys should be privately examined by three gentlemen of the bar as to their election; and the court appointed three counsellors to examine the boys, in order to discover their free wishes. The counsellors, after making the inquiry, reported to the court, that the boys, after being carefully informed of the purpose of the inquiry, expressed a decided and unequivocal desire to return to their masters, and a strong and unaccountable repugnance to go back to their father. The court thereupon ordered the boys to be delivered to their masters, and directed an Officer to attend and protect them in their return, according to their choice.

It was mentioned, that the mother of the children, now deceased, had been a member of the society called Shakers.