such circumstances I do not think that the petitioner is in a position to require the interference of the court, in favor of a controlling legal right on his part, against the rights, such as they are, the feelings and the interests of the other parties.

"This is eminently a case for amicable arrangement between the parties. Some agreement might be made by which the child should spend part of her time with her father, to allow opportunities for mutual affections and interests to grow up between herself and her paternal relations.

"But it is not in the power of the court, in this proceeding, to decree any arrangement, or to modify at all the relations of the parties. The judgment must be simply for the custody of the child. The decree, therefore, is that the child be restored to the custody of the respondents.'

In McDowle's case, 8 John., 328, where the father applied for the writs to obtain possession of his sons, whom he had undertaken to apprentice to the defendants, the indentures were held inoperative as to the infants because they did not conform to the requisitions of the statute, yet the court intimated that the father might still be bound by the covenants, and said he "had no equity and no right to complain."

The following case was decided in Pennsylvania, in 1851, by the District Court of Alleghany county, and the decision was afterwards brought up before the Supreme Court in banc and the same order made.

The Commonwealth at the instance of Mary Gilkeson v. James Gilkeson, Wallace Phila. Rep., 194.

This was a habeas corpus by a daughter to be discharged from the custody of her father.

It

appeared that about six years before the granting of the writ the father and mother of the petitioner by contract under seal transferred the custody of her to her uncle and aunt, who by the same writing agreed to adopt her as their child. The contract, though of such a character as could not be enforced against the child, was performed by the uncle and aunt and sanctioned by the father until the child had grown from 9 to 15 years of age. Her mother and uncle having died the father obtained possession of her and insisted on retaining the custody though she preferred remaining with her aunt.

LOWRIE, J., said: "We have never in this state held that the courts are bound to strict adherence to the old common law rules as to the right to the custody of children; and this writ being used as a remedy for the improper interference with that right we must treat it as a Pennsylvania remedy, governed by the principles of the common law of Pennsylvania, of which equitable principles constitute an illustrious part.

"In this case the parental authority has been solemnly renounced for six years, and the child has grown to the age of fifteen years. She has been estranged from the customs and government of her father's house. She has formed new habits and views, and become accustomed to different associations and modes of living. And now the father disregarding his own contract and the wishes and comfort of his child, seeks to re-establish the parental authority. We should be glad he could effect it by the influence of parental kindness, and consistently with honesty. We dislike to see the parental and filial relation severed, and should love to see the broken bond re-united. But it cannot well be done by the enforcement of it as a legal right.

"The father himself broke the bond, and the law will not help him now to mend it. He emancipated his

daughter by his own solemn act, and all restraint upon her by him is now improper.

"We must, therefore, discharge her from restraint, and leave her to elect with whom she will remain."

SECTION XI.

MASTER FOR HIS APPRENTICE.

It is sometimes said that a master is entitled to the writ of habeas corpus to enable him to obtain the custody of his apprentice; and some cases have gone upon this ground; thereby converting the proceeding into a species of personal replevin.

But the true principle seems rather to be that the writ may issue on behalf of the apprentice at the suggestion of the master.

It has indeed been held that it could not issue at the instance of the master. In The King v. Reynolds, 6 T. R., 497, a writ had been granted at the instance of the master to recover his impressed apprentice. On motion to quash the writ, Lord Kenyon, Ch. J., said:

"I think the writ of habeas corpus was improperly issued. The writ ought not to be issued at the instance of the master: but the apprentice, who is of sufficient age to judge for himself, should have applied for it if he had wished it. Suppose this apprentice had been taken into the service of any other master, we should not have granted a habeas corpus at the instance of his first master, but should have left him to his action for seducing his apprentice."

The same doctrine was held in the case of The King v. Edwards, 7 T. R., 741, where the master

moved for a habeas corpus to bring up his apprentice, who had entered into the sea service, in order that he might be restored to him.

The court, referring to the case of The King v. Reynolds, above cited, said: "The distinction was properly taken in the case cited; that though the apprentice might obtain the writ the master could not, for that its object was the protection of the liberty of the party. That the master was not without his remedy, for that he might have his action against those who detained the apprentice."

In Pennsylvania at an early day the writ was granted on the application of the master, and the apprentice delivered to him, 1 Bro. Rep., 277, and in cases of doubt an issue was sometimes directed to a jury, Graham v. Graham, 1 Serg. & Rawle., 331.

But in the case of Commonwealth v. Robinson, 1 Serg. & R., 352, where the writ had been issued on the application of the master to recover his enlisted apprentice, who was upwards of 18 years of age, and on examination expressed his wishes to remain in the army, the Supreme Court said: "A habeas corpus may be issued at common law, under which courts have gone so far as to deliver the body of an infant to his parent, and sometimes an apprentice to his master. It is discretionary however, whether to proceed to that length or not. In a case like the present there is no occasion for a summary proceeding, because the master has his remedy by action against the person who takes away his apprentice."

The court also said: "the object of the act of Assembly (1785,) was to secure personal liberty, not to decide disputes about property."

In a late case Commonwealth v. Harris, before Rogers, one of the justices of the Supreme Court, March 7, 1848, cited 1 McKinney's Justice, 344, it was held: "If an apprentice enlist in the army, the court will not, upon a habeas corpus, issued at the relation of the master, remand the prisoner to the custody of the master, if the minor is unwilling to return, but will leave the master to his suit against the officer who enlisted the minor for damages suffered by loss. of the services of the apprentice."

In New Jersey the master petitioned for the writ to obtain his enlisted apprentice, but it appearing on the hearing that he had assented to the enlistment, the writ was dismissed.

others, 2 South, 555.

The State v. Brearly and

In Massachusetts in the case of Commonwealth v. Harrison, 11 Mass. Rep., 63, the writ was granted at he instance of the master; but it does not appear from the report that the apprentice was ordered into his custody. He was released from the custody of the defendant and "set at large."

From the reasoning of the court it may be inferred that they considered they had authority, if the circumstances of the case required it, to commit the apprentice to the custody of the master.

The action and observations of the court in the following case in New York, appear to indicate a safe middle course by which a master can always get the writ, but very rarely his apprentice. They concede as much as the spirit of the writ would seem to justify.

In the case of The People v. Pillow, 1 Sandf. Sup. Ct., 672, it was held that the writ of habeas