Wе are satisfied that the case is properly constituted in this Court by the appeal, under the provisions of the statute ; Acts of 1858, ch. 53. The enacting clause uses general words: “In
all cases of habeas corpus,
before any judge or court, where a contest shall arise in respect to the custody of minor children,” &c., “in such cases, either party-may appeal,” &c. Admitting that in cases of ambiguity the generality of a statute may be restrainеd by the preamble,
Blue
v.
McDuffie,
Bus. Rep. 131, it has no such effect in this case, for although express reference is made to the particular instance of minor children, whose parents live in a state of separation, which probably suggested the-expediency of the act, the remedy is provided in such and
other lihe
cases; which is exjdaine’d to mean
all cases,
where a contest shall arise in respect of thе custody of minor children. Ours is a case of that kind. Has Kornegay a right to the custody of the boy ? He puts his claim on the force of the deed executed by the boy’s father: so the case depends on the legal effect of that deed; and the question is, does it operate as a mere
executory agreement
for a breach whereof, damages may be recovered in an action of covenant ? or does it operate as an
executed agreement,
to wit: a conveyance by which a right of property vested in Kornegay, so as to establish the relation of “ master and apprentice ” between him and the boy, whereby he is entitled to the boy’s services, may inflict reasonable correction, and in case the boy absсonds, or is taken from him,
*73
may, by process of law, have him restored to his custody?— At common law, a man may bind himself by an agreement that his child shall serve another a year, or any number of years. So he may bind himself by an agreement that a stranger Shall serve another, or that he will serve himself '; and if the service be performed, he may recover the considerаtion ; if
not
performed, he will be liable to an action for breach of 'contract. This is clear.
Hiatt
v.
Gilmer,
A father is entitled to the services of his child until he arrive at the age of twenty-one. He has a right of property in the services — may enforce them by reasоnable correction, and if the child absconds, or is taken away, may recover the custody by habeas corpus, which has superseded the writ of Ho-mine replegiendo, anciently used to recover a villian-ward in knight service, or child; see Fitsherbert’s Nаtura Brevium 67. This interest was, however, personal to the father, and he could not assign it to a third person, except when the child being old enough to understand the nature of a contract, which was held to be twelve years, gave his assent thereto by executing the deed with his father; King v. Inhabitants of Arnesby, 5 E. Com. Law, 385. It is there held, “a father has at the common law, no authority to bind his infant son apprentice without his assent, and an indenture executed by the father and the master, but not by the son also, does not *75 create an apprenticeship. Baily, J., says: “an infant can only bind himself by deed,” and although the son had served some years, that being a matter in pais, did not bind him.— In the case of a parish apprentice, there is a special power given by statute, 5 Eliz. ch. 4, to parish officers to bind the apprentice -until he comеs of age. There he is bound without his assent, but a father has, at common law, no such right.” Best, J., says: “There is no sufficient authority for saying that a father, at the common law, can bind his infant son apprentice without his assent, testified by the execution of the indenture.”
The same principle, which prevents a father from assigning his interest, applies to the master of an aрprentice bound by the County Court under our statute;
Futrell
v.
Vann,
In our case, as the infant did not execute the deed, Kornegаy acquired no property under it, and did not become entitled to the custody of the infant. His only remedy is by an action on the covenant for damages. It follows that Korne.gay failed to shew any lawful authority or right to detain the body of the infant in his custody; and as the infant is over twelve years of age, we find it settled that the proper order is to discharge the infant and permit him to go where he pleases. Order below reversed. This order will be entered, and judgment against Kornegay for costs; King v. Greenhill, 31 E. Com. Law, 159; McPherson on Infants, 156.
In respect tо the child, Lucretia, who is under the age of twelve years, we find by the same-authorities, that the proper order is to restore her to the custody of the father; for although he may be liable under his covenant to be sued for damages, -still, his interest as father, is not divested by it.
Order below reversed. This order will be entered, and judgment against Eornegay for costs.
Order below reversed.