Brotzman v. Bunnell

• Decision Date: 11 January 1840
• Citation: 34 Am.Dec. 537,5 Whart. 128
• Parties: BROTZMAN v. BUNNELL and Another.
• Court: Pennsylvania Supreme Court

5 Whart. 128

34 Am.Dec. 537

BROTZMAN v. BUNNELL and Another.

Supreme Court of Pennsylvania.

January 11, 1840

IN ERROR.

An infant under seven years of age may be bound apprentice in any art, mystery, occupation or labour, with the assent of his parent, guardian or next friend, under the act of 29th of September, 1770.

ERROR to the Court of Common Pleas of Monroe County to remove the record of an action brought in that Court, to December Term 1837, by Philip Brotzman against Jacob Bunnell and Solomon Westbrook.

The action in the Court below was debt to recover the penalty given by the act of assembly for " harbouring concealing and entertaining," one John Hauser, the apprentice of the plaintiff.

On the trial the plaintiff proved the execution of the indenture of apprenticeship, which was dated the 8th day of Nov. A.D 1823, and which witnessed that " John Hauser son of John Hauser, deceased, of Hamilton township, in the county of Northampton, by and with the consent of his mother, Christeen Hauser, as testified by her signing as a witness hereunto hath put himself, and by these presents doth voluntarily, and of his own free will and accord, put himself apprentice to Philip Brotzman, of Smithfield township, in said county weaver, to learn his art, trade and mystery, and after the manner of an apprentice, to serve him from the day of the date hereof, for and during the full end and term of fourteen years and twenty-three days, next ensuing." Then followed the usual covenants, and the instrument concluded: " and for the performance of all and singular the covenants and agreements aforesaid, the said parties bind themselves each unto the other firmly by these presents." This instrument was witnessed by the mother of the apprentice, and acknowledged on the same day before a justice of the peace.

Evidence having been given on both sides relative to the harbouring of the apprentice by the defendants, the Court (JESSUP, President,) charged the jury upon the law as follows.

" The defendant's counsel have requested the Court to charge the jury, that if at the time the apprentice entered into the indenture of apprenticeship, he was within the age of seven years, then those indentures would not be obligatory upon him; and if he voluntarily left his master the plaintiff cannot recover. The only evidence submitted to the jury of the age of the apprentice, is that contained in the indenture itself. It is dated on the eighth day of November, 1823, and binds the apprentice to serve fourteen years and twenty-three days. His age is not stated in the indenture, nor is there evidence of his having been within the age of twenty-one years when he left the plaintiff, except what is inferred from the period of service stated therein. The binding in this case is not by a father, exercising parental control nor by overseers of the poor under the provisions of the law, but by the minor himself with the assent of his mother, as a parent, under the provisions of the first section of the act of 29th September, 1770. The mother only assents to the binding. The act is that of the child and derives its validity from its being the free and voluntary act of the child. If it were not entered into voluntarily it would not be binding. In order to a voluntary choice there must be the power of choosing, and in order to this there must be some knowledge of the thing to be chosen. Such knowledge of the trade he was to learn as a child of seven years would be possessed of, would not be sufficient for the formation of such a choice as...