After a continuance, the opinion of the Court was drawn up hY
Weston C. J.— If the defendant had made a contract with the grandmother of the plaintiff, whereby he had transferred to her the care, custody and control of his child, and that contract had enured to the benefit of her husband, she being a feme covert, about which we give no opinion, the proper remedy for the party injured is on the contract.
By the third section of the act, establishing the right to the writ for replevying a person, statute of 1821, ch. 66, it is provided, that if it shall be found upon the trial, that the plaintiff is the ward or infant of the defendant, he shall have judgment for a re-delivery of the body. Under that section, the opinion of the Court is, that this process cannot be maintained against the father or guardian of a minor child, in behalf of such child.
It has been inquired, what shall a master do, if his apprentice is taken away by his father ? It is a sufficient answer, that a writ for replevying the person, is not the proper remedy. If an apprentice elopes from his master, he may have a warrant for arresting and returning him, from a justice of the peace. Or the master may have covenant broken upon the indentures against the father, if he withdraws his son without right from his service. And there is no doubt but any unlawful imprisonment or detention of a minor child, may be open to inquiry upon habeas corpus.
It is insisted, that the plaintiff is not the infant of the defendant, because another is entitled to her services and the custody of her person. But we think, by infant of the defendant, in the section of the statute before referred to, must be understood child of the defendant, and that it was not intended to give this process against a parent; and so the Judge should have ruled in the Court below.
The exceptions are accordingly sustained, the verdict set aside, and a new trial granted.