Sacket v. Johnson

M’Kinney, J. This is an action of covenant brought on an indenture of apprenticeship. The plaintiff declares that on the 24th day of April, 1829, at, &c., by a certain indenture of apprenticeship, then and there made and sealed with the seals of said Bartholomew Johnson and Solomon Johnson, the said Bartholomew Johnson by his own free [62] will and by the consent of his father, the said Solomon, testified by his signature to said indenture, put himself an apprentice unto the said plaintiff to the trade and occupation of a house-joiner, to dwell with him as an apprentice from the date aforesaid, until the 24th day of April, 1833; during which term, the said Bartholomew and the said Solomon, by said indenture, covenanted with the plaintiff, that the said Bartholomew should faithfully serve the said plaintiff, and not depart or absent himself without the leave of the said plaintiff, during said term, &c. The plaintiff avers that the said Bartholomew, as an apprentice, was received into his .service, &c., and that he on, &c. did unlawfully absent himself, &c.; that the said defendants have not kept their said covenant, &c. On oyer prayed, the following indenture was set out:— “This indenture made this 24th day of April, in the year of our Lord, 1829, between Bartholomew Johnson and Solomon Johnson, his father, of the county of Clark and state of Indiana, of the one part, and Nathan Sachet of the county and state aforesaid, of the other, witnesseth, that the said Bartholomew Johnson hath by his own free will and accord, and jvith the consent of the said Solomon, his father, testified by hi signature to these presents, put himself apprentice unto the said Nathan Sachet, to learn the trade and occupation of a house-joiner which the said Sachet useth, and with him to dwell as an apprentice from the date of these presents until the 24th day of April, 1833; during all which term the said apprentice, his said master well and faithfully shall serve, keep his lawful commands, do and obey, &c. From the service of his said master he shall not at any time depart or absent himself, without the consent of his said master, &c.; and the said Sachet on his part and in consideration of the premises, promises well and faithfully to teach and instruct, or cause to be taught and instructed, the said Bartholomew Johnson in,” &c. The indenture concludes, “In testimony whereof, the parties have hereunto set their hands and seals this date above mentioned. — Bartholomew Johnson, [L. S.] Solomon Johnson, [L. S.] Nathan Sachet, [L. S.]" The defendants then demurred generally. The Circuit Court sustained the demurrer, and rendered judgment in favour of the defendants for costs. The indenture is obviously drawn within the provisions of the statute respecting apprentices (1). By that act, the consent [63] of the father or guardian of any person within the age of 21 years, must be signified by the signing and sealing of the’inden-. ture, to give it validity. If the father or guardian, in addition to his consent signified by signing and sealing, should enter into covenants, he is, as other covenantors, responsible for,their execution. Mead v. Billings, 10 Johns. Rep. 99.—Branch v. Ewington, Dougl. Rep. 518. C. Dewey, for the plaintiff; J. H. Thompson and I. JYaylor, for the defendants. The plaintiff in error contends, that the covenants in the indenture are jointly made by the, defend ants, and that both are responsible, if any of the covenants have been broken. He founds this position on the language used by the parties, in the beginning and conclusion of the indenture. The indenture is made by Bartholomew Johnson and Solomon Johnson of the one part, and JYathan Saeket -of the other, and witnesseth that the said Bartholomew Johnson of his own fre'e will and accord, and with the consent, of the said Solomon, his father, testified by these presents, puts himself, &c. Here the reason is given why the father is a party — to give his consent, which is required, that the son should put himself an apprentice, ’and, clearly not to incur liability for covenants into which the apprentice, in the body of the indenture, afterwards enters (2). The apprentice and the master respectively covenant, and it is only when we reach the conclusion of the instrument that the father again appears. He then, as one of the parti.es, signs and seals the indenture. The cases of Blunt v. Melcher, 2 Mass. Rep. 228, and Ackley v. Hoskins, 14 Johns. R. 374, are in point. These decisions are given upon instruments like the one before us, and upon statutes with similar provisions to that of this state. We are therefore of opinion that the Circuit Court decided correctly, in sustaining the demurrer to the declaration. Per Curiam. The judgment is affirmed with costs. Footnotes [(1)] Rev. Code, 1831, p. 70. [(2)] The apprentice himself must execute the indenture; The King v. The Inh. of Arn., 3 Barn. & Ald. 584 ; and still, if he is at the time under 31 years of age, he is not liable to an action for a breach of any of the covenants. Gylbert v. Fletcher, Cro. Car. 179.—1 Chitt. Gen. Pr. 70. The master’s remedy against the apprentice for desertion is by advertising him; obtaining a justice’s warrant for his apprehension; compelling him to serve an additional time for lost service, &c. Rev. Code, 1831, p. 71. The apprentice’s desertion absolves [64] the master from any covenants on his part with the father for instructing the son, &c. Hughes v. Humphreys, 6 Barn. & Cress. 680. As to the binding out of poor children by the overseers of the poor, see Rev. Code, 1831, p. 381.