
    Pierce v. Massenburg.
    May, 1833.
    [26 Am. Dec. 333.]
    Infants -Apprenticeship-Infant Necessary Party. — A lather cannot bind his infant child apprentice by indentures to which the child is not a party; and indentures oí apprenticeship executed by the father, without the child’s concurrence, are not voidable only, but void.
    This was an action on the case, in the circuit court of Norfolk, brought by Mass-enburg against Pierce, for enticing away and keeping and detaining in his Pierce’s service, two apprentices and servants of Massenburg, named Minson and Pace. Plea, the general issue. Veidict for the plaintiff for 650 dollars, subject to the opinion of the court on a case stated, which was thus;
    *There were two indentures of apprenticeship executed, the one between Minson’s father and Massenburg, and the other between Pace’s father and Massen-burg, whereby the fathers, respectively, bound their sons, then infants, to Massen-burg, a pilot, till they should attain to full age, to learn the art and mystery of a pilot for Chesapeake bay and James river; but the indentures were not signed by the infant sons, respectively, nor were they in any way parties to them. And the question referred to the court, was, whether these indentures could be received in evidence, to prove the apprenticeship, or any legal contract of service, such as would entitle the plaintiff to maintain this action?
    The circuit court held that the law was for the plaintiff, and gave him judgment for the damages assessed by the verdict; to which this court, on the petition of Pierce allowed a supersedeas.
    Leigh, for the plaintiff in error, said, that it was now well settled, that a father cannot bind his infant son as an apprentice or servant, without his assent; The King v. Cromford, 8 East 25; The King v. Ripon, 9 East. 295; The King v. Arnesby, 3 Barn. & Ald. 583.
    The attorney general, for the defendant in error, said, that whatever might be the common law on the point (as to which there had been some contrariety of opinion) the right of a father to bind his infant child apprentice, was plainly recognized by the statute law of Virginia; which provides, that any apprentice bound by his father, may, with the approbation of the county or corporation court, after he shall be sixteen years of age, agree to serve until he shall be twenty-four, or any shorter time; 1 Rev. Code, ch. 108, g 27, p. 411. Besides, he said, this was an action for a tort, and the defendant stood convicted of the wrong by the verdict. Such a wrongdoer could not avail himself of any defect in the contract of apprenticeship of the plaintiff’s apprentices, whom he had seduced from the service of their master, though the apprentices themselves might not have *been bound to fulfil the indentures executed by their parents; Keane v.
    Boycott, 2 H. Blacks. 511.
    
      
      For the proposition laid down in the syllabus, the principal case was cited in State v. Reuff, 29 W. Va. 757, 2 S. E. Rep. 804. See also, monographic note on “Infants'’ appended to Caperton v. Gregory, 11 Gratt. 505.
    
   CARR, J.

I consider the question submitted to the court, to have been substantially this, whether a father can bind his infant son apprentice by deed without the assent of the son? If he could, then Massenburg had a right of action against Pierce, for enticing his apprentices from, his service; if not, then he had no such right. This subject, I consider as untouched by any provision of our own statute law. When the attorney general quoted the statute providing that any apprentice bound by his father, may with the approbation of the court, after he shall be sixteen years of age, agree to serve till he shall be twenty-four or any shorter time, it struck me that the words bound by his father, seemed to acknowledge an unqualified power in the father to bind the son; but further examination has changed this impression,. I find by the doctrines of the common law, long and well established, that a father cannot bind his infant son apprentice, without the assent o£ his son, and such assent proved by his signature to the indenture; but that, in this manner, he may bind him. This being the common law doctrine, well known to our law makers, when they speak of an apprentice bound by his father, they mean, I conclude, bound in that way in which a father may bind his son; that is, with his assent, shewn by his joining in the deed. If the statute had intended to abrogate the common law, and to confer on the father a new power, it would have used words expressive of such intent; but those employed clearly speak of an existing power, without meaning to add to or detract from it. As to the common law on the point, the authorities cited for the appellant, are decisive. I think the judgment must be reversed, and judgment entered for the appellant.

CABELL and BROOKE, J., concurred.

*TUCKER, P.

The authority of a father to bind his son apprentice without his consent, is distinctly denied by various authorities; as appears in the case of The King v. Arnesby, cited at the bar. The passage in Com. Dig. Justice of peace, B. 55, which was quoted in that case, to sustain the power of the father, is truly declared to be unsupported by authority. In like manner, in The King v. Cromford, the indenture was held invalid because the infant had not executed it. Lewin on Settlements 251, 2. If the case was of the ‘first impression, I should be of the same opinion. It is going very far to establish a rule by which every father would have the right to bind his child without his consent, whatever .be his age or his circumstances, or the service, or the terms of that service. It would vest the power over a child on the borders of maturity, in a father perhaps his inferiour in discretion, and for the profit of the father, at the expense of the degradation of the child. Such a power cannot readily be conceded, and is, as we have seen, without authority to sustain it.

Respectable authorities, indeed, have asserted a right in the child to bind himself without his father’s concurrence; The King v. Mountsorrel, 3 M. & S. 497; The King v. Great Wigston, 3 Barn. & Cress. 484; The King v. Chillesford, 4 Id. 94; 10 Eng. C. L. R. 161, 279; Lewin 247. If such right really exists, it is obviously incompatible with ' the asserted right of the father. But as it is unnecessary to decide that question here; as the english cases on these questions, intermingle principles of the common law very frequently with statutory provisions, which it would require some pains to separate; and as the question of the emancipation of the child from parental authority is one of great delicacy, I shall not now venture to give an opinion upon it. See as to emancipation, 5 Barn. & Ald. 525; 1 Barn. & Cress. 348; Lewin 80, 81.

It was very strongly argued, that the wrongdoer cannot avail himself of the defect of the contract of apprenticeship; and Keane v. Boycott was cited. There is no doubt, that *where there is a contract of service, though it may be voidable between the parties, the wrongdoer cannot set up that as a defence. But the reason is, not merely that it is no concern of his, but that the contract being-only avoidable, it may be avoided or affirmed at the pleasure of the party. Thus, in the case of the negro boy who bound himself when a slave and under age, and who was seduced from his master’s service, it. was decided, that the defendant could not make the objections of infancy and duress. The privilege was personal to the infant, who might waive it and conform to the contract, even if it was avoidable (which by the way, it is not admitted to be, in all the cases; 6 T. R. 557; 3 Barn. & Cress. 487; Lewin 299). So, in Westerdell v. Dale, 7 T. R. 310, it is said, that an indenture for a shorter period than that required by the statute of Elizabeth, is not void but only voidable, and that at the election of the parties themselves; and that a third person cannot set up the objection. But these are cases in which there is a contract, though a voidable contract. But here is a case of no contract at all. In those cases, the contract might have been affirmed: in this, there is hone to affirm. The infant’s assent by act in pais, by any act short of joining in the indenture would not suffice to bind him; 3 Barn & Ald. 584. The defendant may therefore well object, that there was no contract of service. Thus, in The King v. Cromford, where the indentures are considered void, it was strongly asked, how an action could be maintained by the supposed master against any person who should seduce the apprentice from his, service.

This point is yet more clear if the child can bind himself without his father’s concurrence. Eor, if the father cannot bind the child, and the child can bind himself, then he who contracts for the service of the child with the child himself, must of course be protected by that contract, and have a right to rely on it. Otherwise, the child must yield to the unauthorized act of the father, or be an outcast incapable of getting into service. This cannot be.

*1 am of opinion, upon the whole, that the indentures in this case, were not admissible “to prove the apprenticeship or a legal contract of service such as to enable the plaintiff to maintain his action. ’’ And the jury having found their verdict subject to the opinion of the court upon the point thus reserved, I think the judgment should have been for the defendant.

Judgment reversed, and judgment entered for the appellant.  