
    [*] THE STATE against TAYLOR.
    
    ON HABEAS CORPUS.
    Indenture of binding German redemptioner, signed by the father only, and stating the year, but not day or month, of his birth, held good.
    Pennington, J., dissenting.
    On the return of the writ, it appeared that the boy was a Germain redemptioner, brought into Amboy, and sold for his passage, to the defendant, as a servant; that the father of the boy came in the same ship, and in order to give validity to the sale, bound the boy to the defendant, to serve in such employment as he should think proper to employ him in ; the year that the boy was born was inserted in the indenture, but not the month or day.
    It was contended on the part of the prosecution — that the boy was unlawfully held in the custody of the defendant; that the indenture was void for two reasons.
    1st. The age of the boy was not inserted in the indenture; and
    [353] 2d. That a father could not bind his son a servant; that the binding must be the act of'the infant, even in cases of apprenticeship, and not the act of the father.
    On the part of Mr. Taylor; it was contended by his counsel, that the binding was correct; that a father had a right by the common law to bind his son' an apprentice; ^ Corny. Dig. 579; and no reason could be offered why he should not bind him as a servant.
    The Chief Justice, and Rossell, J., were of opinion, that the age of the boy was sufficiently set out in the indenture, and that the binding by the father was correct.
    
      
       This case is entered in the minutes of February Term, 1809.
    
   Pennington, J.

I am very well satisfied that my brethren have thought themselves justified in deciding this case as they have. ■ Mr. Taylor honestly paid his money for the service of the boy, and is, under the circumstances of the case, in equity entitled to it. I cannot bring my mind, however, to agree to the law upon which this case is decided. The boy stands in the situation of all other infants in the State. Our act respecting [*] apprentices and servants, Pat. 306, points out the manner of binding infants, and declares a binding in any other way void, as against such infant, and requires the age of the infant to be inserted in the indenture. Whatever purposes this was to answer, the requisite of the act does not appear to me to be complied with, by only inserting the year in which the infant was born; it is too uncertain. Again — the construction which I have ever given of this act, is, that the binding is to be by the infant himself, and not the father binding the infant; and this, I believe, is the universal practice, as well in England as in this State. For what purpose is the assent of the father or guardian to be expressed in the indenture, and signified by their signing and sealing the same? If the father is the binding party, such a provision is perfectly absurd: but this is expressly enjoined by the statute, and the indenture made void without it. It is said by Yates, J. Burr. Sett. Cases, 656, that a father cannot bind his son a servant, and notwithstanding the dictum in Gomyn, I much doubt if he can bind him an apprentice. The assent of the father is necessary to prevent the improvident act of the infant; the infant is, therefore restrained from binding himself without the assent of his father, mother, or guardian. By the custom of London, an infant unmarried, and above the age of fourteen, may bind himself apprentice to a freeman of London by indenture. The statute, 6 Eliz. c. enables householders in cities and towns corporate, to retain apprentices, to servo and be bound as apprentices, after the custom and order of the city of London; and in certain cases, extends this provision to market towns. [354] The whole of the statute of Eliz. goes to show that the binding is the act of the infant, and not that of the parent. The right that a father has to the services of an infant child does not seem to be plainly marked out by the common law; the control he has over the child seems to be for its benefit, its education, and to provide for it. The ancient writ given the father for taking away his child, seems by the best authorities, to be confined to his heir, and not to extend to his other children; this was of feudal [*] origin; and we hear no more of it since the abolition of military tenures. On the whole view of the subject, I am clearly of opinion, that the true construction of the act is, that a father cannot bind his infant son a servant, nor even an apprentice; but that it contemplates the infant binding itself, by the assent of the parent, expressed in the indenture; therefore, on this point also, that the indenture is void.  