
    Commonwealth, ex rel. Supplee against Eglee.
    
      Saturday, January 6.
    Themoiher tilín" h marrierltoaseís a parent" ’ meani'ng'of the act of fer' fmeand assont'to an" indenture of mdepeiidentit^ of her husband.
    A HABEAS CORPUS having- issued to Jacob Eglee, t0 Pro(^uce the body of John Supplee, he returned that he detained him by virtue of an indenture of apprenticeship entered into before Alderman Baker. The indenture ran thus : This indenture witnesseth, that John Supplee, aged fifteen years on the 8th July next, by and with the advice and consent °f his mother, Hannah Hanger, hath put himself,” &c. ^ was s*Sne(^ and sealed by Jacob Eglee, John Supplee, and Hannah Hanger. On the hearing, it was admitted that Hanna^ Hanger was a married woman, living with her husband at the time she executed the indenture,
    Kittera, for the relator,
    argued that the assent of the parent required to an indenture of apprenticeship, by the act of 29th September, 1770, Purd. Dig. 7, was an agreement into which a married woman was incapable of entering. When an infant binds himself with the assent of his father, the father is liable to an action of covenant in consequence of having signed the indenture; but no such remedy can be had against a married woman. In relation, too', to the rights of her husband, the indenture is void. He is under the same obligation to support the children of her first marriage that she was before she married him, and is, therefore, entitled to exercise a control in the disposition of them. If a married woman is capable of assenting in a case like this, it is certainly an anomoly. Commonwealth v. Callan, 6 Binn. 255. Mead v. Billings, 10 Johns. 99. Reeves’ Dom. Rel. 285.
    Dallas, contra,
    said, that during the life of the father, he, of course, was the parent contemplated by the act of assembly, but on his death the mother became the only parent; and that she was such a one as the act had in view, could not be doubted, after the case of Commomvealth v. Callan. The law merely requires her assent, which does not amount to an agreement or covenant, which can be in any manner affected by her coverture ; nor can the husband’s assent to the indenture be necessary, because he had nothing to do with the boy. The marriage did not give him the guardianship of his wife’s children, and unless she was in a situation to maintain them before the marriage, he was not obliged to do so afterwards.
   Tilghman C. J.,

delivered the opinion of the Court.

It appears by the return to this habeas corpus, that Jacob Eglee holds John Supplee as his apprentice, by virtue of an indenture of apprenticeship, executed before Jacob Baker, an alderman of Philadelphia. The indenture is in the following form : “ This indenture witnesseth, that John Supplee, aged fifteen years, by and with the advice and consent of his mother, Hannah Hanger, hath put himself,” &c. and it is sealed and delivered by Jacob Eglee, John Supplee, and Hannah Hanger. The objection is, that Hannah Hanger was a married woman, and, therefore, incapable of assenting. By the act of 29th September, 1770, indentures of apprenticeship executed by infants, are binding, provided the assent of their “ parents, guardians, or next friends’’ be given. The father of John Supplee being dead, he has no parent but his mother, and that she is a parent within the meaning of the act, may be inferred from the decision of this Court in the case of the Commonwealth v. Callan, 6 Binn, 255. There, an infant who had a mother, but neither father, master, nor guardian, had been enlisted by Lieutenant Callan, as a soldier in the army of the United States, without the consent of his mother. The enlistment was held to be void, because it is directed by the act of Congress of 20th January, 1813, that no person under the age of 21 years shall be enlisted or held in the service of the United States, without the consent, in writing, of his parent, guardian, or master,” first had and obtained. I can percejve no reason for a difference of construction between the act of Congress and act of assembly. Then, as to the mother being married—That is no impediment to her assenting tO\the binding of her son. It is a personal confidence reposed in her by act of assembly ; she parts with no property, divests herself of no interest. It is true, that the general principle is, that a married woman can have no will of her own, being entirely under the control of her husband. But we know very well, that, in truth, married women have both will and judgment; and, by permission of the Legislature, they often exercise them. For instance, they may, in conjunction with their husbands, alien their real estates, provided they declare before a magistrate that they act of their own free will, without coercion or compulsion of their husbands. It does not appear that the husband of Mrs. Hanger received any estate with her, or was under any obligation to support her son, John Supplee. There is no reason, therefore, why he should have any control over the son. The mother has more affection for her own child than any other person can be expected to have, and, in general, may be supposed to have sufficient capacity to judge of a proper master. She enters into no covenant by this indenture, but barely assents to the binding, in pursuance of the act of assembly. It is the opinion of the Court, that, although married, she is still the parent designated by the act, and may give her assent independently of her husband. Indeed, if she cannot, there can be no indenture within the act of assembly, because the husband’s becoming a party only shews his assent; and if the principle^ that a married woman can have no will be strictly applied, the indenture, though executed by both husband and wife, must be considered as the act of the husband only.

It is ordered, that the apprentice, John Supplee, remain in the service of his master, Jacob Eglee.

Apprentice remanded,  