State ex rel. Mayne v. Baldwin

The Chancellor. A father is entitled to the custody of his minor children, as guardian by nature, and guardian for nurture: 3 P. Wms. 154; 5 East. 221. Such guardianship is not assignable : 2 Swanst. 567, 571. The care and custody of minor children is a personal trust in the father; and be has no general power to dispose of them to another : 3 Hill's Rep. 410, 411. The verbal agreement set up in this case is void as a contract for the apprenticeship of the child, by our act’ respecting apprentices and servants. Prom these principles it follows that the respondent has no right to detain this child from the custody of its father. In this case the child is of such tender years that the father could properly apply for the writ of habeas corpus in his own right, without the privity of the child ; and it is a case in which, for want of discretion in the child, it is proper that, instead of merely delivering the child from improper restraint, an order should be made, for .the delivery of the child to the father: 3 Hill, 399. Order accordingly.