Josiah Hunt to Matthias Clark, Timothy Clark, and John Loree, Dr. 1804. October 10th. To freight of brick taken to New-York by you as Capt. of the sloop Mary Gordon, as per bill rendered, £31 19 Interest till paid,

Of the value of

7 10 0

£38 12 3

$96 53

There was a jury trial and verdict, and judgment for the plaintiff, for $96 53.

The plaintiff in certiorari objected, first, to the competency of the state of demand; and second, to the refusal of the justice to admit testimony, to prove that Matthias Clark, one of the plaintiffs below, was part owner of the sloop Mary Gordon.

BY THE COURT.-The state of demand though not very intelligible, yet it is sufficiently so to show that it is a demand made by the plaintiffs against the captain of a sloop, for the amount of the sales of a sloop load of brick, taken by him to New-York, and sold as agent to the plaintiffs, evidenced by a bill rendered; and whether one of the plaintiffs were part owner of the sloop or not, was of no importance, and therefore, the evidence properly rejected; the action must be considered as between principal and factor. Judgment affirmed.

[*] THE STATE vs. TAYLOR. (a)

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 German 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; year that the boy was born was inserted in the indenture, but not the month or day.

the

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

(a) This case is entered in the minutes of February Term, 1809.

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; 4 Comy. 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 inden ture, and that the binding by the father was correct.

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. 305, 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 Fates J. Bur. Sett. Cases 656, that a father cannot bind his son a servant, and notwithstanding the dictum in Comyn, 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, 5 Eliz. C. 4, enables householders in cities and towns corporate, to retain apprentices, to serve 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.

The whole of the statute of Eliz. goes to shew 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.

SNOWDEN vs. JOHNSON.

In action for false imprisonment, a copy of the commitment is not legal evidence.

THIS was an action by Snowden against the defendant, for an assault and imprisonment. The defendant was a Justice of the Peace, in the county of Cape May, and bad committed the plaintiff to the jail of that county, on a charge of a breach of the peace, where he laid part of a day before he procured bail. The venue was laid in Burlington, where the plaintiff resided. An attempt had been made to change the venue to Cape May, but from the insufficiency of the affidavit on which the application was made, it was refused by the Court. No plea was put in, and the plaintiff obtained judgment by default, on which a writ of inquiry was issued to the sheriff of Burlington, who returned an inquisition of $500 damages. It was now moved on the part of the defendant, to set aside the inquisition, on the ground of surprise, the admission of illegal testimony, and excessive damages. The defendant lived in Cape May, and his attorney in Cumberland; from some difficulty in communication, arising from the distance or some other cause, the defendant's attorney did not attend, and the defendant appeared without counsel before the jury of inquiry. The sheriff admitted the copy of the warrant of commitment in evidence, without the [*] original being accounted for as lost, or in any way in the power of the defendant, or out of the power of the plaintiff. The counsel for the plaintiff argued, that it was not the fault of the plaintiff that the de

fendant was without counsel, as regular notice of executing the writ of inquiry had been given to the defendant's attorney; that the copy of the warrant, under the circumstances it was offered in evidence, was competent testimony; and that in case it was not, yet as it was not objected to at the hearing, it was too late to take the advantage of it now; 2 John. Rep. 63. That damages must be outrageous and beyond measure, to induce the interference of the Court on that ground, 2 Blac. Rep. 929, Cowp. 230, 3 Wil. 60, 2 Wil. 205; but they considered the damages reasonable, and by no means immoderate, under the circumstances in the case.

ROSSELL J.-Was clearly of opinion, that the inquisition ought to be set aside; that from the facts disclosed, he was inclined to think that the defendant had a legal defence if he availed himself of it; that the admission of the copy of the warrant in evidence was illegal; and that at all events, the damages were excessive; and that the inquisition ought to be set aside on that ground, if no other.

PENNINGTON, J.-Said, that although he considered the damages excessive, and more than he would have agreed to had he been on the jury, yet he could not say that he thought them so outrageous, as to come within the rule adopted by courts of law for setting aside the finding of a jury, merely on the ground of excessive damages. There were, however, other circumstances that weighed in his mind in this case, which, taken together with what he considered unreasonable damages, inclined him to allow the rule. It appeared to him that the defendant had been unfortunate through the whole progress of his cause; that his cause had been badly managed; he was entitled to a trial in Cape May, where the cause of action arose, and would have had the venue changed but for want of skill or attention in drawing or procuring the proper affidavit. The cause was of [*] course heard in a county where he was a stranger, and he without counsel, at a great distance from home; and there is reason to believe that local prejudices were afloat against him. Two very able, eloquent and ingenious counsel opposed him, and the sheriff admitted illegal evidence. It is true, that this was not objected to at the time; and had the defendant been aided by counsel, he inclined to think that it would be too late now to take the objection. But it appeared to him, that counsel must take their testimony against an undefended man, at their peril, and although the plaintiff ought not to suffer by the want of vigilance in the defendant, nor is he chargeable with the accidents which led to the unpleasant situation the defendant was placed in; yet it all went to show a hard case on the part of the defendant. This is an application to the

sound discretion of the Court; and on the whole, he could not say that this was so satisfactory a proceeding as the unbiassed purity of judicial determinations called for, and was therefore of opinion that it presented a proper case for a review.

KIRKPATRICK, C. J.-Said, that although he had at first doubted the propriety of granting the rule, yet on the whole, he inclined to concur with his brethren, particularly as he considered the admission of the copy of the warrant improper; and that the defendant, under all the circumstances of his case, had a right to insist on strict law; it might, therefore, be considered as the unanimous opinion of the Court: BY THE COURT.-Let the inquisition be set aside, on payment of costs by the defendant.

The defendant's counsel then moved for a rule nisi, to set aside the interlocutory judgment in this cause, and to be let in to plead, and that the venue be changed to Cape May. On a question from PENNINGTON, J. whether it was not too late, the counsel for the defendant relied on the case of Cavil v. Burnaford, 1 Bur. 568. The rule nisi was taken to be argued next term: