
    * Commonwealth versus William Hamilton.
    W here a child had been duly bound as an apprentice in Upper Canada, and tile master had removed with the child into this state, the Court refused to order her to be delivered to her mother, who had married a second husband, but permitted her to remain with her master, she declaring herself so inclined.
    Upon the application of Margaret Larey, stating herself to be the mother of Catharine Cuddy, an infant, and alleging that the said Catharine was unlawfully restrained of her liberty by the respondent, Hamilton, a writ of habeas corpus ad subjiciendum issued to the said Hamilton, commanding him forthwith to bring into Court the body of the said Catharine, with the cause of her restraint, &c.
    The respondent returned that the said Catharine was duly bound in service to him, until she should attain the age of eighteen years, by the church-wardens of the parish of Niagara, in the province of Upper Canada, in conformity to the laws of that province, and is now within the years for which she was so bound ; and he annexed a copy of the indenture, by which the binding was made.
    
      J. T. Austin, for the commonwealth, moved that the infant should be discharged, and, in support of his motion, he made two points: —
    1. That if there were no indentures of apprenticeship, the mother was entitled to her charge.
    2. That the indentures set forth in the return are in this commonwealth nugatory and void.
    As to the first point, he referred the Court to the case of Wright vs. Wright, 
       and to the other authorities in the margin. 
    
    Upon the second point, he contended that the indentures were a contract between foreigners in a foreign country, and would support no action in this Court.  The contract is executory, as the beneficial interest of the defendant was the future services to be performed by the minor.
    Indentures made without the consent of the minor, or the natural guardian, are in restraint of the personal liberty of the citizen, and are ineffectual and void here. There is no process of law, by which the defendant could retake this minor, if she left his service.
    [ * 274 ] * There is no reciprocadty of obligation in this case. There is no counterpart of the indenture here ; so the defendant may discharge this infant at his pleasure, in case of sickness or any other misfortune, and there is no authority here to compel him to relieve her. Neither can he be compelled to give her the instructions he has contracted to give, nor is there any au thority to discharge the infant for his negligence or misbehavior, although our laws make provision in all these cases, where apprentices are properly bound.
    This indenture is repugnant to the English law  under which it was made. If the overseers cannot legally bind poor children to persons in another parish, much less can they to a person in another kingdom. If such person should consent to receive the apprentice, he would not be bound to retain him longer than he chose.
    These indentures are also void as repugnant to our own laws, which prohibit the carrying the minor out of the state without the consent of his guardian, and require that the indentures shall contain certain covenants for the minor’s benefit not found in this indenture, and provide a remedy in case of neglect, &c.
    
      
      Amory, for the defendant,
    after stating that Larey, the mother of this child, had a husband now living in Canada, who was not the father of the child, which was agreed to be true, cited the case of Freto vs. Brown, 
       in this Court, as decisive of the point in question. He also offered evidence, that the child was treated with great kindness and tenderness in the family of the defendant, and was warmly attached to them.
    
      Austin, in reply. The case of Freto vs. Brown was different from the present, as there the minor was of age to choose his own guardian, and might elect some other person than his father-in-law; but here the infant, being under fourteen years, has no right of choice by our statute. Although a father-in-law might not be compellable to support the child of his wife by a former marriage, yet if he was disposed, * as in the case at [ * 275 ] bar, it is believed that the Court would not only permit it, but would give him their aid.
    
      The chief justice inquired of the child if she was restrained against her wishes; to which she answered that she was not, but that she was very desirous of continuing in the family and under the protection of Mr. Hamilton.
    
    
      
       2 Mass. Rep. 110.
    
    
      
      
        Ibid. 113, Benson vs. Remington. — 3 Co. 39, Radcliffe’s Case. —14 Vin. Abr. 171. — Co. Lit. 68.
    
    
      
       3 Mass Rep. 24, Rea vs. Hayden.
      
    
    
      
       3 D. & E. 107, Rex vs. Clapp. — Ibid. 523, Rex vs. The Guardians of the Poo of Tunstead.
      
    
    
      
       4 Mass Rep. 675.
    
   By the Court.

By the return of this writ, it appears that Catha vine Cuddy was bound as an apprentice to the defendant, agreeably to the laws of Upper Canada, where the parties then resided. Although it may be true, that on removing into this state, the defendant could not have compelled her to accompany him, yet as sbe came voluntarily, and as the defendant is under obligation to provide for her, — which obligation it is by no means certain that the laws of this commonwealth would not enforce in a case situated like the present, — as there is no evidence of any neglect of that duty on his part, but, on the contrary, the child appears to have been well treated, and to be attached to the family of the defendant, —it would be unreasonable to take her from his care, and deliver her to her mother, who, by her marriage to her present husband, ceased to have any power of controlling her own actions, or of providing for the support and education of her child. Whatever rights she might have had as guardian by nurture, they have certainly ceased at the age of this child ; and the husband is under no legal obligations to be at any expense for that object. Let the child be discharged, with liberty to remain in the defendant’s family, as she has requested; and we further order that neither the said Margaret, nor any other person or persons, molest, interrupt, or disturb her, in respect to her residence in the family of the said Hamilton. 
      
       The child appeared to be about 14 years old.
     