said he was clear that the evidence was not admissible. Upon looking into the statute, it appeared that neither the overseers nor guardians could bind the children of these Indians in any way but by indenture; and, therefore, that the parole assent of the guardians could give no right to the plaintiffs.
Sedgwick, J.As the declaration now stands, it does not appear for what length of time the plaintiffs claimed the service of the boy, nothing more being stated than that the plaintiffs, at the time mentioned, were entitled to his service. And here, although it will not influence the opinion I am about to deliver, yet I cannot avoid mentioning again, that the more I have considered the subject, the more I am convinced that the action ought to have been in contract, and not in tort.
In this case, it is agreed that the boy belonged to the Marsh-pee tribe, and the plaintiffs offered to show that he was their servant de facto at the time they agreed to let him out in ser*136vice to the defendants, and that the guardians assented to the contract.
The question before the Court depends upon the act of the government, which was read by the defendants’ counsel.
This act was in force at the time of the transaction, and still continues so.
The first section of the act provides for the appointment of a board of overseers, who are vested, among a variety of other powers, with the power of taking care of the poor, and of binding tneir children to service, and also of appointing guardians to [ * 179 ] the Indians, to carry into execution the * regulations and orders of the overseers. The plaintiffs do not pretend to give evidence of any act of the overseers, but only of the guardians. It is necessary, therefore, to inquire into the authority of the guardians. The boy being a minor, incapable of contracting, the question is, whether the mere assent of the guardians be sufficient.
By the second section of the act, the overseers or the guardians are vested with power and authority to demand and receive any property, dues, or wages, detained, withheld from, or justly owing to said proprietors, or any of them, by any person or persons; and to institute, and bring, in their own names and capacities,- any action, &c., therefor, or for any fraud or injury done to them,, and to pursue such actions to final judgment and execution, &c.
The statute is founded in humanity, and although it is intended to curtail these persons, who are freemen, of some rights, yet it is because they are liable, from their weakness, to be imposed on by the arts and designs of the unprincipled and profligate, as expressed, substantially, in the preamble to the act.
The same section of the act provides “ that the overseers or guardians may also bind, by indenture, the children of the poor of said proprietors to suitable persons, &e., as the said overseers o" guardians may judge necessary and convenient.”
Here, then, is contained the whole authority of the guardians as to their power of binding any of the Marshpee Indians, or proprietors of that plantation, as they are called in the statute. ' The guardians have power to bind the children of the poor persons by deed. Their power reaches no .farther, nor can they bind in any other way. But it is contended that the naked assent of the guardians is sufficient to authorize the plaintiffs to send a mar. round the.globe, and bring an action for his service. [ * 180 ] *The position is monstrous, and I have never had any doubt from the moment the statute was read. The evidence offered is inadmissible. .
B. Whitman and Sproat for the plaintiffs. The Solicitor-General (Davis') and K. Whitman for the de fendants. Strong, J.As the declaration now stands amended, the plaintiffs do not claim a right to the service of the boy for any definite term of time; but their counsel insist that he is their servant de facto, and that that is sufficient against a stranger. The question before the Court is, whether the parole assent of the guardians is sufficient to establish the claim of the plaintiffs to the service of the boy. The boy had, in contemplation of law, no will of his own. The plaintiffs, therefore, could acquire no right by his assent. Had he been bound to them by indenture, they would not have had a right to send him to the south pole, to the end of the globe, in their service. The law contemplates no such right in any case, except, perhaps, where the guardians had judged it necessary and convenient to have the person instructed in navigation, and might bind him accordingly. The assent of the guardians, a mere parole assent, can be of no avail in a case like the present. It was illegal and void. The statute has clearly pointed out their authority. This authority they must strictly pursue. The statute gives them no authority to bind, except by indenture, and, therefore, the evidence offered is inadmissible. (1)
Plaintiffs nonsuited.
When a father in New Hampshire bound his son an apprentice to a mechanic of that state, and this latter subsequently assigned a portion of the time of the apprentice to a mechanic of this commonwealth, it was liolden that such assignment was illegal, and that a note given for that consideration was void.—Post, vol. viii. p. 299, Davis vs. Coburn.
See Rex vs. Swimmer, Sayer’s Rep. 103.