
    [Philadelphia,
    March 27, 1829.]
    The COMMONWEALTH ex rel. TAYLOR against LEEDS.
    HABEAS CORPUS.
    The sister of a minor is competent, under the act of assembly of the 29th of September, 1770, to assent, as his next friend, to binding him apprentice to her own husband.
    But such a transaction will be more strictly scanned, than where the binding is to a stranger; and if the contract be tainted with fraud or collusion, the apprentice will be discharged.
    He will not, however, be discharged of course, where the covenants appear to be reasonable and proper on the face of the indenture, especially where the application is not made till the apprentice has ceased to be a burden.
    A writ of Habeas Corpus having issued, commanding Gurdon Leeds to bring before the court the body of Henry Taylor, together with the cause of his detention, he returned that he held the said Henry Taylor by virtue of a certain indenture of apprenticeship, by which it appeared, that the said Henry Taylor, then aged fifteen years, had, on the 4th of July, 1825, with the consent of his sister, Margaret Leeds, (the wife of the said Gurdon Leeds,) .acting as his next friend, his parents being dead, put himself apprentice to the said Gurdon Leeds, to learn the trade of a cabinet maker, to serve five years, six months, and twenty-four days; during which time the master covenanted to find him in boarding, lodging, and washing, to give him one quarter’s night-schooling, and, when free, one new suit of clothes.
    On this return, it was contended by P. &.• Browne, for the minor, that he was éntitíed to be discharged from the service of his master. At common law, (he said,) the deed of an infant is absolutely void. EVen an indenture of apprenticeship entered into for his instruction and benefit, is not valid. 2 Inst. 379. 3 Leon. 637. 7 Mod. 15. But the act of assembly of the 29th of September, 1770, declares, that “ all and every person and persons that shall be bound by indenture to serve as an apprentice in any art, mystery, occupation, or labour, with the assent oí his or her parent, guar•dian, or next friend, or with the assent of the overseers of the poor, and approbation.of any two justices, although such persons, or any of them, were or shall be within the age of twenty-one jmars at the "time of making their several indentures, shall be bound to serve,” ■&c. The question then is, whether the sister of the infant, being the loife of the master, was such a next friend as the act contemplated ? No objection can be raised to the relationship of sister, who may, in ordinary cases, act as next friend where the parents are deceased: nor does the objection arise from her coverture; fora married woman may in some cases give her assent to the binding of her child. The Commonwealth v. Eglee, 6 Serg. & Rawle, 340. The objection is, that a feme covert cannot, as the next friend of her brother, assent to a binding to her own husband. It is one of those glaring cases of conflicting interests, in which the policy of the law obeys the precept of religion, “Lead us not into temptation.” The obvious duty of a next friend in binding an apprentice, is to obtain the best terms for the infant; but how could the wife be expected to perform the office with fidelity, under the powerful influence, not only of duty to her husband, but of her own interest? The truth of this remark is strongly exemplified by the present indenture, which provides for only, one quarter’s night-schooling during a period of many years’ service. Another duty of a next friend is to watch over the conduct of the master, and even of the mistress, upon whom much of the comfort of the apprentice must depend, and lake care that the covenants in favour of the apprentice are duly performed. But it is obvious that this duty cannot be performed where the next friend is herself his mistress, and the wife of the master. But this indenture is void, not only on principle, but authority. In the case of The Commonwealth v. Kendig, 1 Serg. fy Raivle, 366, an attempt was made to support an indenture upon the assent of one of these nominal next friends, but it failed. There Cyrus Pearce, who held the infant under .an indenture, acted as next friend in binding her, by a second indenture, to J. H. Baker; and Chief Justice Tilghman, in delivering the opinion of the court, said, “I think it would be of dangerous consequence to admit, that a man who is about to sell his apprentice, should take the place of next friend, because he must be supposed to be acting for his own interest, which-is incompatible with the idea of a guardian.” In the present case the next friend was acting for her own interest in making unfavourable terms for the -infant, since her interest is identified with that of her husband. It is to be observed, that the late Chief Justice considered the acting as next friend as tantamount to an assumption of guardianship; and, according to Osborne’s case, Plowd. 293, where a woman guardian marries, the husband partakes of her rights as guardian; so that the assent here given was, in point of law, the assent of Gurdoh Leeds to a binding to himself, which is clearly illegal and void.
    3. The indenture in question not only purports to have been made with the assent of the sister as next friend of the infant, but she has covenanted for the performance of certain things on the part of the infant. It corresponds, in substance, with the instrument upon which the case of Mead v. Billings, 10 Johns. Rep. 99, was determined, in which the guardian was held liable upon the covenants to be performed by the infant. But how can a married woman enter into a covenant, particularly with her husband? In The Commonwealth v. Eglee, there were no covenants on the part of the feme covert, but merely an assent given to the binding. In the present instance, the wife acted in conjunction with her husband, and the presumption of law is, she avctod under his coercion. A felonious taking of goods, under such circumstances, would not subject her to an indictment for larceny. A transfer of her estate, under such circumstances, would be void.
    
      F. W. Hubbell, for the master,
    argued, 1. That Mrs. Leeds answered the description of “ next friend” in the act of assembly. The. father and mother being dead, and the infant having no brother who had attained the age of twenty-one years, the duties of guardianship and maternity devolved on his eldest sister, who was emphatically his “ next friend.” The act of assembly contains no such-exception as coverture.
    2. According to the strict technical rule of law, the disability of coverture extends to acts in favour of third persons, as well as to those in favour of the husband. In the latter case, they are void upon the same principle as in the former; they differ only in degree. When, therefore, it was decided in The Commonwealth v. Eglee, that a feme covert may give her assent as a next friend to the binding of a minor, under our act of assembly, the present case was decided in principle.' In the case just referred to, the nature of the assent required is thus defined: “ It is a'personal confidence reposed in her by the act of assembly: she parts with no property, divests herself of no interest.” A power or confidence reposed in a married woman, unaccompanied by any interest, may well be exercised by her in favour of her husband, though the exercise of it require discretion; as a power of sale, &c. Co. Litt. 112. 4 Cruise, 181. Tyser v. Williams, 3 Bibb’s Rep. 368.
    3. The cases of purchases by executors, trustees, &c. at their own sales, have no analogy to the present case, although such an identity of the wife with the husband be admitted, as to render the exercise of a power in favour of the husband, in effect an exercise of it in her own favour; for at law such a purchase by an executor or trustee, when made in the name of a third person, is good. Equity inter* feres on the ground of policy. A case like the present has never been agitated in courts of equity, and technical rules of equity, which preclude inquiry into the real equity of the case, are not to be extended beyond their letter. Equity avoids such a sale, by putting the purchaser in statu quo, returning to him the purchase money with interest, a tender of which is essential to the cestui que trust’s claim of relief. Sug. on Vend. 433. But, on the present occasion, no offer is made of compensation to the master, for the instruction and sustenance of the apprentice during the time he has been with the master. Hitherto, he has been only a burden: his services, after he shall have acquired the trade, have been looked to ás a requital.
    4. The present argument goes no fai’ther than that the fact of the next friend in the indenture being the wife of the master, does not per se vitiate the instrument. If there be actually undue influence, the case is otherwise. It is even conceded that the law regards such a transaction with jealousy. But if this indenture be subjected to the strictest scrutiny, it must be sustained; for there is no extraneous proof of undue influence, and on the face of the indenture all the usual covenants are to be found. It has been objected, that the schooling provided for is not sufficient: to this it may be answered, that the boy was considerably beyond the usual age of binding, and so advanced in his education that he did not need more schooling than was stipulated for.
    
      5. The act of assembly does not require the next friend to enter into any covenants, but merely to give assent; consequently the covenants by the next friend, in this indenture, were merely surplus-age, and could not vitiate it; utile, per inutile, non vitiatur. The covenants on the part of the next friend being entirely in favour of the master, he alone can object to the indenture, if they are void.
   The opinion of the court was delivered by

Gibson, C. J.

There must undoubtedly be an actual, and not merely a formal next friend. His office, however, is not to bind the apprentice, but to allow the apprentice to bind himself. The covenants of the apprentice, although executed under the supervision of those whom the law has set over him, are exclusively his own. Such are the provisions of the act of assembly, and such was the construction of it in The Commonwealth v. Eglee. The practice has, for the most part, been for the prochein amy to express his assent by sealing the indenture; but no one ever thought of having recourse to him on the contract; at least no instance of the sort has fallen under my notice. The reason is, that the legislature has not said that he shall become a party. The assent is sometimes expressed by subscribing as a witness;. but neither in the one case nor in the other, has the prochein amy considered that he was contracting any responsibility for the apprentice. His covenant, if any existed, would be joint. But that would be inconsistent with his power, which is not to'subject, by any act of his, the person of the apprentice to the dominion of the master: that can be done only by the apprentice himself. The prochein amy can join in the act, only so far as the law gives him authority; and, by the terms of the act of assembly, his agency is not to be active, but passive. This point was expressly ruled in The Commonwealth v. Eglee, where the coverture of the prochein amy would have afforded a decisive objection, if she had been considered a party to the deed. That case establishes, also, that the subjection of a feme covert prochein amy to her husband’s will, is not, in contemplation of law, inconsistent with the free exercise of her will in the execution of her trust; and this, in analogy to the common law, which permits a wife to act in a representative capacity and independent of her husband, where-ever the subject matter is unconnected with his interest or marital rights. The pinch of the case, here, is that the binding was to the husband. But in equity, and even in some instances at the common law, wherever a feme covert has power to act as if she were sole, she may treat directly with the husband. As, however, the matter depends on construction, it is urged that expediency requires that the act of assembly be so interpreted as to avoid the tendency to abuse of power which must necessarily exist in every case like the present. That would be a grave consideration, were abuses of the sort without redress. But an effectual corrective is found in the supervising power of the judges, who are' bound to discharge wherever the contract is shown to be tainted with actual fraud or collusion; and, in a case like the present, the transaction would be more strictly scanned than if the binding were to a stranger. We will not, however, discharge of course, where, as in this case, the covenants appear reasonable and proper on the face of the indenture; especially where the application is not made till the apprentice has ceased to be a burden. It is objected, that the quantum of schooling is unreasonably small. It appears, however, from the apprentice’s signature to the indenture, that he wrote a fair hand; and the great object of the binding being to learn the art and mystery of the master, I would hold an indenture valid without any covenant for schooling at all, if it should appear that the education of the apprentice had been sufficiently attended to before. It therefore appears to a majority of the court, that no reason has yet been shown >vhy the apprentice should not be remanded.

Tod,. J., dissented.

Apprentice remanded.  