The opinion of the court was delivered by

There must undoubtedly be an actual, and not merely a formal next friend. His office, however, is not to bind the apprentice, but to allow the apprentice to bind himself. The covenants of the apprentice, although executed under the supervision of those whom the law has set over him, are exclusively his own. Such are the provisions of the act of assembly, and such was the construction of it in The Commonwealth v. Eglee. The practice has, for the most part, been for the prochein amy to express his assent by sealing the indenture; but no one ever thought of having recourse to him on the contract; at least no instance of the sort has fallen under my notice. The reason is, that the legislature has not said that he shall become a party. The assent is sometimes expressed by subscribing as a witness;. but neither in the one case nor in the other, has the prochein amy considered that he was contracting any responsibility for the apprentice. His covenant, if any *195existed, would be joint. But that would be inconsistent with his power, which is not to'subject, by any act of his, the person of the apprentice to the dominion of the master: that can be done only by the apprentice himself. The prochein amy can join in the act, only so far as the law gives him authority; and, by the terms of the act of assembly, his agency is not to be active, but passive. This point was expressly ruled in The Commonwealth v. Eglee, where the coverture of the prochein amy would have afforded a decisive objection, if she had been considered a party to the deed. That case establishes, also, that the subjection of a feme covert prochein amy to her husband’s will, is not, in contemplation of law, inconsistent with the free exercise of her will in the execution of her trust; and this, in analogy to the common law, which permits a wife to act in a representative capacity and independent of her husband, where-ever the subject matter is unconnected with his interest or marital rights. The pinch of the case, here, is that the binding was to the husband. But in equity, and even in some instances at the common law, wherever a feme covert has power to act as if she were sole, she may treat directly with the husband. As, however, the matter depends on construction, it is urged that expediency requires that the act of assembly be so interpreted as to avoid the tendency to abuse of power which must necessarily exist in every case like the present. That would be a grave consideration, were abuses of the sort without redress. But an effectual corrective is found in the supervising power of the judges, who are' bound to discharge wherever the contract is shown to be tainted with actual fraud or collusion; and, in a case like the present, the transaction would be more strictly scanned than if the binding were to a stranger. We will not, however, discharge of course, where, as in this case, the covenants appear reasonable and proper on the face of the indenture; especially where the application is not made till the apprentice has ceased to be a burden. It is objected, that the quantum of schooling is unreasonably small. It appears, however, from the apprentice’s signature to the indenture, that he wrote a fair hand; and the great object of the binding being to learn the art and mystery of the master, I would hold an indenture valid without any covenant for schooling at all, if it should appear that the education of the apprentice had been sufficiently attended to before. It therefore appears to a majority of the court, that no reason has yet been shown >vhy the apprentice should not be remanded.

Apprentice remanded.