
    Levi Day versus Aaron Everett.
    At common law, a father may assign the services of his minor son to another for a consideration to enure wholly to the father; and this for a longer or shorter term, limited, however, by the son’s minority and the life of the father.
    And the statute of 1794, c. 64, does not take this power from the father; all contracts of service, legal at the common law, remaining legal since the statute; but the only remedy, which either party can have, is upon the contract, and not under the statute, unless the binding pursue the statute.
    When minors are bound as apprentices, pursuant to the statute, all considerations must be secured to the apprentice; whether such binding be by parents ur guardians, or by the minor with the approbation of the selectmen.
    
      This was an action of covenant broken. The declaration contained several counts, all of them upon an indenture made between the parties. The defendant prayed oyer of the indenture, which is dated July 10th, 1799, and by which it appears that the plaintiff, for, and in behalf, and in request of his son, Everett Day, is one party, and the defendant is the other party; and the indenture witnessed that the plaintiff doth bind and put his said son to hire, and dwell with the defendant, for the term of six years from the 5th of December, 1799, and covenants with the defendant that he will not remove or displace his said son from the defendant’s service during the said term, but that during the term his said son shall faithfully serve the defendant. And the defendant covenants with the plaintiff, among other things, to pay the plaintiff ten dollars on executing the indentures, and the further sum of forty dollars on the 1st of January, 1800; and at the expiration of the term to pay him fifty dollars more, if the son should continue in the defendant’s service during the term.
    The breach assigned by the plaintiff is the not paying the last sum of fifty dollars, the son having continued in the defendant’s service during the term.
    The defendant, after the oyer, demurred generally to the declaration, and the plaintiff joined in demurrer.
    * Fay, in support of the demurrer,
    relied on a proviso [ * 146 ] contained in the first section of the statute of 1794, c. 64, entitled “ An. act to secure to masters and mistresses, as well as to apprentices and minor servants, bound by deed, their mutual privileges.” The proviso is in the following words : — “ Provided, also, that all considerations which shall be allowed by the master or mistress, in any contract of service or apprenticeship, shall be secured to the sole use of the minor thereby engaged.” And he urged the expediency and humanity of the provision, as calculated to protect children from the mercenary views of parents, who would sacrifice the present comfort and future prospects of their children to a present gain to themselves.
    
      Ward, for the plaintiff,
    argued that the proviso cited for "the defendant has reference only to the case of minors, having no father, mother, or guardian, within the commonwealth, and who are authorized to bind themselves, with the approbation of the selectmen of the town; but whether this be the true construction or not, the statute may make the contract void, as it respects the minor, and still leave the covenant binding as between the father and the master. As between these last there is nothing in the statute to-make the contract void, which is certainly good at common law, notwithstanding all the dangers and mischiefs which have been stated to arise to minor children from the unfeeling avarice of unnatural parents.
    
      Fay, in reply.
    Since this statute, there is no other legal mode of /finding an apprentice, but such as is conformed to its provisions If a father assigns the service of his minor son for a time, he may be well entitled to his earnings, for he is still bound to provide for him ; but where he places him as an apprentice, he puts the master in his own place, and the latter contracts to educate him, to clothe him, to take care of him in sickness, &c.; so that there is no shadow of re^on, why the parent should make a pecuniary benefit to himself out of the contract. In fact, the statute has expressly [ * 147 ] * prohibited it, and to support the present action would be an evasion of one of its most salutary provisions. 
    
    
      
       Vide 2 D. & E. 569, Samuel vs. Evans
      
    
   The action being continued nisi, the opinion of the Court was pronounced at the following November term in Suffolk, by

Parsons, C. J.

There is no question but that a father, who is entitled to the services of his minor son, and for whom he is obliged to provide, may, at the common law, assign those services to others, for a consideration to enure to himself. He may contract that his minor son shall labor in the service and employment of others, for a day, a month, or any longer term, so that the time do not exceed the period of the child’s emancipation from the father; which may take place, as well on the father’s death, as on the son’s arriving at the age of twenty-one years. If this common law right is taken away from the father by the statute of 1794, so that no contract by the father, binding his minor son as a servant or apprentice, is legally valid, unless such contract pursue the statute, then the objection made by the defendant to the covenant declared on in this case will deserve some consideration.

The statute, after describing the powers of fathers, mothers, or guardians, and of the minor with the approbation of the selectmen, or the greater part of them, annexes two provisos. One is, that in every case there shall be two deeds of the same form and tenor executed by both parties, one to be kept by each ; and when the deeds are made with the approbation of the selectmen, that approbation under their hands is to be endorsed on the deeds. The other proviso is that relied on for the defendant., viz. that all considerations allowed by the master shall be secured to the benefit of the minor. Now, in the deed of which oyer is given in this case, there is no such security made for the minor. Therefore the defendant has argued that the indentures are void ; and although he has had the benefit of the minor’s service, that he is not obliged to pay the stipulated equivalent.

*The plaintiff has insisted that the proviso, respecting the considerations to be secured to the minor, relates only to deeds by which the minor is bound with the approbation of the selectmen, and not to deeds by which a minor is bound by parents or guardians; for they may safely be trusted to do nothing prejudicial to the child or ward, while the selectmen might, through carelessness or negligence, approve of contracts which might be prejudicial to the minor.

But on looking into the statute, we are not satisfied that this distinction exists. The proviso is general, and provides for considerations allowed by the master in any contract of service or apprenticeship, without any exception whatever. And there may be good reason why a minor of fourteen years of age, who is bound by his own consent during his minority, under the authority of this statute, should have the consideration for his services, whether it be the knowledge of a trade, the having of an education, or the receipt of money, for his own benefit when he shall come of age, and be obliged to provide for himself.

For a binding under the statute obliges all parties : it obliges the servant to obedience, subjects him to reasonable personal correction for his faults, and if he abscond, to a compulsory return to his master, or to imprisonment. Or, if the servant be guilty of gross misbehavior, the Common Pleas may discharge the master from the contract. And if the master treat the minor with cruelty, the same court may discharge the minor from the contract.

But the statute does not, like the English statute of 5 Eliz. c. 4, >§> 41, relating to apprentices and servants, make void all contracts by which a minor is bound in service, unless such contracts as are made pursuant to the statute. All contracts of service, legal at the' common law, remain legal since the passing of this statute; but the only remedy, either party can have, is on the contract, and not under the statute.

It is therefore our opinion, that the covenants declared on are not within this statute, so that either party or the minor could have relief according to the provisions of the statute: * but as the covenants are good at common law, and the [ * 149 ] statute has not made them void, it is also our opinion that the covenants are not void, but that no remedy lies for either party on a breach of them, but by action at law. And as well parents and guardians, as masters, ought duly to consider, that if the contract of apprenticeship does not pursue the statute, the apprentice cannot be discharged, if the master break the contract on his part; neither, if the contract be broken on the part of the apprentice, can the master have those remedies, and that relief, provided in the statute for contracts made pursuant to it; but the remedy for each party is by action, which in many cases may be inadequate.

In the case at bar, as the deed is good at common law, and not made void by the statute, the declaration appears to us to be good ; and the plaintiff must have judgment for his damages assessed at fifty dollars, with interest from the day it was payable to this time.  