
    THE STATE, EX RELATIONE JOHN MAYNE, v. HENRY BALDWIN.
    An infant daughter ordered to be delivered to her father, on a habeas corpas applied for by him, though he had verbally committed her to the care and custody of the respondent until she should attain the age of twenty-one, and the respondent had adopted her accordingly.
    On the petition of John Mayne, the relator, in his right as father, the Chancellor allowed a writ of habeas corpus ad subjiciendum, directed to Henry Baldwin, commanding him to bring before the Chancellor Anna Mayne, an infant child of the relator; the said child being, as alleged, illegally detained and withheld from the relator’s custody by the said Baldwin, with the cause of her detention„
    Baldwin, in obedience to the writ, produced the child, and the return to the writ states the cause of detention thus: “ On the 20th July, 1844, Anna Mayne, in the within suit named, was committed to me by John Mayne, said to be the father of the said Anna, to be by me kept and adopted until she arrive at full age, and was by me adopted accordingly by the request and consent of said Mayne.”
    At the time of the allowance of the writ, the child was of the age of five years and seven months, and it appeared that, about sixteen months before, the child had been taken by Baldwin, with the verbal consent of the relator, to be adopted by Baldwin and brought up as his own child until she should be of full age.
    No deed or writing of any kind was ever executed by the relator or Baldwin, in relation to the custody or services of the child, or the terms on which Baldwin was to keep and bring her up.
    The relator had demanded of Baldwin the custody of the child and was refused it.
    
      J. P. Bradley, for the relator.
    He cited 8 Paige 47. 678; 25 Wend. 64; 3 Hill 399; 2 Story’s Eq., § 1343; 2 Swanst. 553, 557, 559; Vaughan 177, 180; Elm. Dig. 598; 1 Barn. and Ald. 723; 1 Harr. 419.
    
      
      S. R. Grover and L. C. Grover, for the respondent.
    They cited 2 South. 445; 10 Johns. Rep. 605; 4 Cowen 728; 3 Burr. 1437; 8 Johns. Rep. 253; 4 Dall. 347.
   The Chancellor.

A father is entitled to the custody of his minor children, as guardian by nature, and guardian for nurture. 3 P. Wms. 154; 5 East 221. Such guardianship is not assignable. 2 Swanst. 567, 571. The care and custody of minor children is a personal trust in the father, and he has no general power to dispose of them to another. 3 Hill’s Rep. 410, 411.

The verbal agreement set up in this case is void as a contract for the apprenticeship of the child, by our act respecting apprentices and servants.

From these principles it follows that the respondent has no right to detain this child from the custody of its father.

In this case, the child is of such tender years that the father could properly apply for the writ of habeas corpus in his own right, without the privity of the child; and it is a case in which, for want of discretion in the child, it is proper that, instead of merely delivering the child from improper restraint, an order should be made for the delivery of the child to the father. 3 Hill 399.

Order accordingly.

Cited in State v. Baird, 3 C. E. Gr. 199.  