The object of the 4th sectiori of the Act (1 vol. 265) regulating inarriage and divorce, cannot be, to give a compensation for loss of service ; it is very inadequate to that object; the penalty is not proportioned to such an in, jury ; the loss of service may be, in some, cases, for a single day; in others; many years, and the penalty is given; in a certain case, to those wrio are ndl entitled to the service of the minor, i. e. to the next friends. The object rilust be, to prevent clandestine marriages; the consent therefore, is required pf those whose relative situation, to the minor, is such, that they are presumed to .have the greatest interest in preventing an imprudent connexion. Whatever may bé the situation of the minor, whether resident in the family of thé parent or parents, or bound out as an apprentice; or servant, still the interest of the parent, in the marriage of the minor, far, exceeds that of the master, or any other person. Independent of the anxiety of the parent, for the future welfare of the child; the *162pecuniary interest is great and permanent; for, by the 9th section of the Act, concerning “Legal settlement, and providing for the poor,” Sta't. 1 vol. p. 387, either parent is bound to support the grand-children, in a certain event.
Whenever it is necessary that the Minister of Justice of the Peace, be certified of consent, before he proceed to join in marriage, any person, such consent must be of the parent, if either be living ; if the marriage be celebrated, without such consent, the forfeiture is incurred. In this case, the consent of the mother would have justified the defendant, and the Judgtí ought so to have directed the Jury.
2. The Court consider that the master, within the meaning of the Act, is not any one who stands in that relation to the minor ; a single day’s service, or a mere service, at the will of the minor or his guardian, will create this relation $ but, such a master is not within the meaning of this Act; he must be in loco parentis, one who has the control of the minor for a certain period; this control, or power, over the minor, cannot bé transferred from a parent, by a mere verbal agreement; this was an exception to the effect of verbal agreements, at common law, and this principle is perfectly understood by every individual in community ; no parent ever considers his child bound for a certain period, to a master, unless the contract be at least in writing ; a mere verbal contract is always considered to be at the will of either party.
If common law principles are established by the universal consent and practice of a community, the principle which requires a binding to service, to be by something more than a mere verbal agreement, is so established.
New trial granted.