This is a mere abstract question of law. Our respect for the opinion of Judge Rush has strongly induced us to give this case a patient hearing ; but we are bound to follow the dictates of our own judgments.
One who sues for a penalty, must bring himself clearly within the words and spirit of the statute which creates it. The allégala and probata in such cases must strictly correspond. Was then Young Zieber the servant and apprentice of the plaintiff at the time of his marriage. His servant he could be, according to the common acceptation of the term, and the resolution of this court in bank, on the habeas corpus ad subjiciendum, brought against Mrs. Keppele. In England, an infant could not bind himself apprentice by the common law (unless by special custom) Cro. Jac. 494, nor under the statute of 5 Eliz. so as to give the master an action for breach of his indenture in deserting his service. Cro. Car. 179. Farrell. 15. 1 Lev. 290. 1 Mod. 241. 6 Mod. 154.
And in that kingdom, one could not be an apprentice without deed. 1 Salk. 68. And the statute of 5 Eliz. c. 4, directs the binding to be by indenture. Where the writing was not indented at the time of execution thereof, a master could not maintain a suit for enticing away his apprentice. Sess. Cas. 284. 1 Burn. Just. 58, (14th edit.) To remedy these mischiefs in Pennsylvania, and “ to make the covenants between masters and apprentices mutually obligatory,” a law was enac ted on the 29th September 1770, (1 Dall. St. Laws, 540, directing the mode of binding apprentices by indentures, with the assent of their parents, guardians or next friends, or with the assent of the overseers of the poor, and approbation of two justices, and specifying the methods of redress on the complaint of either party. The now plaintiff cannot derive any pretentions from this act. It is not necessary for us to give our opinions how far the suit might be maintained by the father of young Zieber, if he was averse to the connection, which does not appear to be the case. For however the father might have reason to complain, we see no grievances on the part of the plaintiff. The lad regularly attended his business the whole of the stipulated period. His present wife was with child by him before marriage. He was bound in morality to make her every reparation in his power, and there was no disparity in their fortunes or rank in life. Though we highly condemn unequal and imprudent marriages, contracted by minors in their early years, before their judgments are sufficiently informed, in violation of their filial duties, we feel ourselves bound to assert, that the present action cannot be supported.
Verdict for the defendant.