— This is an action brought for enticing an apprentice from his master and harboring him.
The facts were fully proved. Objections were only taken to the indentures produced in evidence.
1. It is insisted that they are not "to the sole use of the minor, and to be paid to him without any control on the *530part of the parent or guardian at any time,” as is required by R. S., 1857, c. 62, § 5.
By the terms of the indenture, the master agrees to pay the apprentice a certain sum for each week’s work,—the sum increasing with each year of his apprenticeship. In a subsequent modification of the indentures, the plaintiff agrees to pay the said Kellen, the apprentice, an increase to June. The payments, as contracted, are to be made to him. By the indenture, the apprentice is to do certain specified services, and, " in consideration of the above services the said Kellen or his mother to be paid,” &c. The promise is to pay the apprentice. If it were to be paid the mother, it would be for the use of the son. In Dodge v. Hills, 13 Maine, 151, the pi’omise was "to pay the said J. H. & J. H., Jr.,” the father and minor son, it was held to be sufficient security to the apprentice within the statute. "It is very manifest,” remarks Weston, C. J., "that whatever might be received by the father was in trust for the son, to be applied to his use.” And such is the true construction of the indentures in the case before us. The assent of the apprentice is given to the payment of board, &c., to his mother for his use and benefit, and nothing more.
(2.) It does not specifically appear that the binding was "to the age of twenty-one years.” If this were required, the defendant cannot take advantage of voidable indentures. A contract of apprenticeship, not conformable to the statute, is voidable only by the apprentice, and cannot be avoided by any other person or party. Page v. Marsh, 36 N. H., 305. "A voidable indenture,” remarks Ewing, C. J., in Bloomfield v. Aquacknock, 3 Hals., (N. J.,) 257, "is valid, subsisting and operative, until it is avoided by those who have power over it.”
Further, it seems well settled, that a father may, at common law, assign the services of his minor son, and that indentures, though not in accordance with the statute, may be sufficient to transfer his right to such services. " The statute,” observes Weston, J., in Emery v. Gowen, 4 Greenl., *53133, "does not, however, make void indentures in assignments of the services of a child, not executed in the manner prescribed. They may be good at common law, during minority; and so they were beld to be by Parsons, C. J., in the case of Everett v. Day, 7 Mass., 145.” So, indentures not under the statute were held binding on the father, though they might not be obligatory upon the son. Lobdell v. Allen, 9 Gray, 377.
At common law, whoever entices away the servant or apprentice of another is liable in an action of the case.' Kellen was the apprentice of the plaintiff. The indentures, whether voidable or not, had never been avoided. It seems that the enticing away a minor, who is a servant de facto, from the service of his master, is actionable. Peters v. Lord, 18 Conn., 337. Much more, then, in a case like the present, when the indentures, whether voidable or not, have not been avoided. It is not for the person who wrongfully entices the servant to set up the defence that indentures are void, when the parties thereto do not claim such to be the case. - Exceptions overruled..
Cutting, Kent, Walton, Dickerson and Tapley, JJ., concurred.