Ackley v. Hoskins — 14 Johns. 374

Majority

p. 376

Ackley against Hoskins.

NEW-YORK,

October, 1817

Headnote

Where an indenture bytatndS with B, his guardian, seif apprentice stating the respective duties ami obligations of the master and apprentice, ^parties ^hands°and a™dkseaiedbSy a, gáardíao,1 is’not lion of covenant forAa,,bre™ciiteof the indenture on the part of the apprentice, as it contained no covenants on his tentionDistappal SmeaaBpai'ty rrrri: (1 R. L. 135.) which requires gaurdten expressed in the indenture, and signified by his sealing and signing the same.

THIS was an action of covenant, on an indenture of ticeship. The declaration stated, that by a certain indenture of apprenticeship, one part of w-hich indenture sealed with the seal of the defendant the plaintiff brings into court, one Sheldon Curtis, aged 15, put himself an apprentice with the plaintiff to learn his trade of a hatter, and to serve the plaintiff until he should . 1 attain the age of 21 ; that it was thereby covenanted and agreed, ® J n * that the said apprentice, his said master should well and fahy servej &c- &c. ; that for the true performance of the nants on the part of Curtis, the defendant bound himself unto the plaintiff; that Curtis was received into the service of the plaintiff, and that although the plaintiff had on his part fulfilled the indenture, yet that Curtis would not faithfully serve him, but, on the contrary, absented himself, and continued absent from hlS SCrVlCC,

The indenture, as set upon oyer, was as K v indenture, made the 7lh day of February, in the year of our Lord 1814, witnesseth, that Sheldon Curtis, son of Moses tis, deceased, late of the town of Geneva, being 15 years old on the 14th day of May, in the year of our Lord, 1813, by and

p. 377

with the consent of Ebenezer Hoskins, his guardian, of the town of Geneva, in the county of Cayuga, hath, of his free and voluntary will, placed and bound himself apprentice unto Henry Ackley, of the village of Ithica, hatter, to learn the said trade, mystery, or occupation of a hatter, which he, the said Henry, now useth, and with him as an apprentice to dwell, continue, and serve, from the day of the date hereof, until the said Sheldon shall arrive at the age of 21 years; during all which time the said apprentice his said master well and faithfully shall serve, his secrets keep, his commandments gladly do and obey, &c. &c. From the service of his said master he shall not, at any time, depart or absent himself, &c. And the said master, in consideration of the before-mentioned premises in the trade, mystery or occupation of a hatter, which he now useth, with all things thereto belonging, shall and will teach and instruct, or cause to be well and sufficiently taught and instructed, See.Sec. In witness whereof the said parties have hereunto set their hands and seals, the day and year first above written. Sheldon Curtis, L. S. Ebenezer Hoskins, L. S. Henry Ackley, L. SV*

The defendant, having craved oyer, demurred, and the plaintifi joined in demurrer.

Foot, in support of the demurrer,

contended, that the inden» ture contained no covenant, on the part of the guardian, that the apprentice should faithfully serve. In Mead v. Billings,^[1] the parties expressly bound themselves to each other, for the true performance of the covenants in the indenture, which was executed by the father. Here the defendant merely expressed his couaent to the binding, according to the statute, by signing and sealing the indenture.

Henry, contra,

insisted, that the father being a party to the indenture, and having executed it, was bound by the covenants it contained. In the case of M'Dowle,^[2] the court said the father was nound, though the infant apprentice was not. In Branch v. Ewington;^[3] Lord Mansfield said, nothing could be clearer than that the father was bound for the performance of the covenants by the son.

delivered the opinion of the court. The question is, whether the defendant is bound by any of the cove

p. 378

nants contained in the indenture. In the case of Mead v. Billings, ( 10 Johns. Rep. 99 .) the indenture is very different from the present. There, after staling what the master and apprentice respectively stipulated, the indenture concludes, that, “ for the true performance of, all and singular, the covenants and agreements aforesaid, the said parties .bind themselves each unto the other.’’ Here the father clearly made himself a party to the covenants, and expressly bound himself for the performance. So, also, in Whitly v. Loftus, (8 Mod. 190.) and in Brench v. Ewington, (Doug. 518.)

In the case before us, there are no words importing any covenant or agreement on the part of the defendant. He has done no more than is made necessary by the statute, in order to make the indenture binding on the apprentice. The statute (1 N. R. L. 135.) requires that the consent of the father or guardian should be expressed in the indenture, and signified by such parent or guardian, sealing and signing the said indenture. That is all the defendant has done. He might be willing to consent to the binding, yet not be willing to be bound himself, for the performance of all the stipulations contained in the indenture. In this, as in all other covenants, we should endeavour to find out the intention of the parties ; and when“we can account for the defendant’s signing, and becoming, thus far, a party to the indenture, within the requirements of the statute, without making him a party to the covenants, we ought so to consider his meaning and intention; unless the language of the indenture will fairly warrant a more extended construction. The statute does not require any covenant from the parent or guardian. It has furnished the master with the power of enforcing obedience from his apprentice, and compelling him to a performance of his stipulated service. To make the defendant liable in this case, would be, in effect, saying, that the parent or guardian would, in every possible case, of a valid binding, be responsible for the performance of the covenants contained in the indenture, as the statute requires the consent of the parent or guardian to be expressed .in the indenture, and' that consent to be signified by sealing and signing the same. The statute does not demand, nor ought it to receive such a construction, it would greatly embarrass, and frequently defeat the very objects intended to be carried into effect. The case of Blunt v. Melcher, ( 2 Mass. Rep. 228 .) is an adjudication

p. 379

expressly in point upon the construction of such an indenture; and goes the full length of exonerating the guardian from all responsibility upon the covenants. We are of opinion that the defendant is entitled to judgment.

Judgment for the defendant.