#### James Manchester *versus*Pardon Smith and Trustees.

A father bound his minor son an apprentice until he should come of age, by an indenture executed by the father, the minor, and the master, securing to the minor the benefit of his earnings. The minor afterwards sailed on a whaling voyage, * with the consent of his father and master, and the indenture was discharged by a deed executed by the father and master. An order bearing the same date with this discharge was drawn by the minor and his father in favor of the master, upon the owners of the ship, for a part of the minor’s earnings on the voyage, and another order was drawn about the same time by the minor alone, for all his earnings on the voyage, in favor of another person, and the father never made any claim to them. It was *held,*that the minor’s earnings on the voyage were not liable to be attached on a trustee process sued out by a creditor of the father.

The trustees were the owners of the ship Emerald. Thomas Riddell, one of them, who answers in behalf of himself and the others, annexes to his answers an indenture of apprenticeship, dated March 4, 1826, executed by Pardon Smith, his minor son Robert Gray Smith, and Joseph Brownell, by which Pardon Smith binds his son Robert an apprentice to Brownell until March 3, 1831, when Robert will arrive at the age of twenty-one years, to learn the trade of a blacksmith, and Brownell covenants to pay to the apprentice yearly the sum of $ 25 until the expiration of the term, and to act as agent for the apprentice, and see that the money is laid out wholly for his benefit in clothing, and that no drafts for money shall be paid unless with the consent of all parties concerned ; the respondent annexes likewise an instrument under seal, executed by Pardon Smith and Brownell, by which the indenture is oy mutual consent discharged ; and the respondent states, that Robert G. Smith performed a whaling voyage in the ship Emerald, by the consent in writing of Pardon Smith and Brownell; that the minor’s earnings on board the ship amounted in the whole to $217-55 ; that after deducting all contingent expenses which the minor was liable to pay, and the amount of an order dated June 25, 1829, drawn by the minor on the agent or owners of the Emerald in which his father joined, in favor of Brownell, for *“*one half of the net proceeds of my voyage in the ship Emerald, after deducting 25 dollars for one half of my outfit,” which order was accepted by the respond*118ent as agent of the owners, before the service of the trustee process, there remains in the respondent’s hands the sum of $ 100-27 unappropriated ; that soon after the ship sailed, Hiram H. Stackpole presented to the respondent for acceptance, an order dated June 24, 1829, drawn by the minor alone on the' owners or agent of the Emerald, in favor of Stackpole, for *“*the whole of my voyage in said ship as soon as it may become due, or any part thereofthat the respondent told Stackpole that he, the respondent, was unwilling to accept the order in writing, but was willing to do what was right about it; and that the respondent noted the order in his books, and it was left in his possession.

*Oct. 27th.*

Warren, for the plaintiff,

said the trustees were chargeable for the sum in their hands embraced by the order drawn by the minor alone, and not included in the order in favor of Brown-ell, on the ground that a father is entitled to the earnings of his son who is under age. *Benson*v. Remington, 2 Mass R 113; *Nightingale*v. Withington, 15 Mass. R. 272; *Whiting*v. Earle, 3 Pick. 201. He contended that there had been no emancipation in the present case, but that when the indenture of apprenticeship was cancelled, the former rights and duties of the father and son revived. The fact that the father signed an order for a part of the son’s earnings, shows his intention to retain his right over the residue. The son signed the shipping paper, which by law he was obliged to do, but that is not proof that the father relinquished his right to the son’s earnings.

*W. Baylies*and *Ezra Bassett,*

for the trustees argued that this case presented an exception to the general principle, of a father’s being entitled to the earnings of his children during their minority ; that here the son was emancipated ; *Nightingale*v. *Withington,*15 Mass. R. 274 ; that by the indenture of apprenticeship he was to have his earnings ; that the discharge of the indenture and the order in favor of Brownell bore the same date and must be considered as one transaction, the order being probably given as the consideration for cancelling the indenture ; that the son would not have been called on by the father- to sign that order, unless the son was to have his earnings ; and that it was not to be supposed that the *119son drew the other order with the intention of defrauding his: father-

*Oct. 29th*

Shaw C. J.

_ _ _ delivered the opinion of the Court. The case presents the question substantially, whether the assignee of Robert G. Smith the son, or the creditors of Pardon Smith the father, have the better title to the earnings of the son. It is a question of evidence upon the facts stated in the answer.

The general principle is, that a father is entitled to his minor son’s earnings, unless he has been emancipated ; but if the son does in fact act and make contracts for himself with the knowledge of the father, this is evidence of his consent to permit his son to contract for his employment and take his own earnings ; and where such consent has been given, neither the father himself, nor his creditors, can interpose after the wages in such an employment have been earned, to take the amount from the son. *Benson*v. Remington, 2 Mass. R. 113 ; *Nightingale*v. Withington, 15 Mass. R. 272 ; *Whiting*v. Earle, 3 Pick. 201.

One of the inconveniences arising from the necessity of deciding questions upon trustees’ answers, is, that it is not practicable through the trustee to ascertain particularly all the facts on which the question depends. From the meagre statement of the facts in the present case, we are of opinion that the son acted for himself. It is manifest that the father had once, by the indenture of apprenticeship, relinquished all claim to the earnings of his son, till his age of twenty-one. This he could not recall, but by the mutual consent of the master and of his son. The latter had now arrived at an age, when he was to some extent capable of .acting and judging for himself. He could not be obliged to engage in the more hazardous and laborious enterprise of a whaling voyage, but by his own consent.1 As the contract for the voyage was made by the son, as no claim for the earnings was at any time interposed by the father, and no notice given by him to the owners, we think that the assent of the father, to his making this contract on his own account, is to be presumed, that he or his assignee therefore is entitled to these earnings, that the attach*120ment of the amount by the creditor of the father is inoperative and void, and therefore that the trustees must be discharged.1

*Trustees discharged.*

1

 See *Randall v.*Rotch, ante, 110; *Nickerson*v. Easton, ante, 107.

1

 See *Corey*v. Corey, 19 Pick. 29; *Vent*v. Osgood, ibid. 572; *Stone*v. *Dennison,*13 Pick. 1; *Wodell*v. Coggeskall, 2 Metc. 91; *Morse*v. Welton, 6 Conn R. 547; *Galbraith*v. *Blacky*4 Serg. & R. 207; *United States*v. *Mertzt 2*Watts, 406.