
    Oliver Powers et al. versus Samuel Ware.
    •ihe selectmen of a town, who were ex officio overseers of the poor, no persons having been specially chosen overseers, bound out a child as an apprentice, pursuant to St. 1793, c. 59, by an indenture wherein they designated themselves simply as selectmen. It was held that the indenture was valid 3 and an action brought upon it by overseers of the poor was sustained.
    The covenants in an indenture of apprenticeship, that the apprentice shall serve, and that the master shall instruct him and provide for him, are independent 3 so that if the apprentice, by reason of incurable illness, become unable to learn his master’s trade or to perform the stipulated services, the master cannot of his own authority put an end to the contract.
    So if the apprentice steal his master’s goods 5 but in this case the master would have a remedy by complaint to the Court of Common Pleas.
    Where the master cut out his signature from the indenture, by permission of one only of the selectmen, it was held that he was not discharged of the contract.
    An instrument so mutilated should not be declared on as a deed, with a profert, but the facts should be stated as an excuse for not making a profert.
    This was an action of covenant broken. The plaintiffs, as overseers of the poor of the town of Phillipston, declared on an indenture made between a former board of overseers, who were such by virtue of their holding the office of selectmen, and who in the indenture were only called selectmen, and the defendant, whereby one Amos B. Jones, a minoi and a poor person, was bound as an apprentice to the defendant from the date of the indenture in 1817 to 1832, to learn the trade and art of a husbandman or farmer. The indenture contained stipulations on the part of the overseers, for the service and good conduct of the apprentice, and the defendant covenanted to instruct the apprentice in the art above mentioned, and to provide for him good and sufficient meat, drink, clothing, lodging and other necessaries, during the term mentioned, and at the expiration of it to give him two good suits of clothes and 75 dollars.
    The breaches assigned were, that the defendant, from and after the 5th of October, 1822, had wholly neglected and refused to instruct the apprentice in the art and trade of a husbandman or farmer, and had not provided for his support, anu mat on that day he abandoned the care of him and represented him to the overseers of the poor of the .own of Ware as a pauper in need of relief.
    
      The plaintiffs made a profert oí the indenture, and the defendant, after oyer, pleaded, 1. Non est factum. 2. That the apprentice, before the 5th of October 1822, feloniously stole bank bills of the value of 70 dollars, and two pieces of silver coin of the value of 1 dollar, 25 cents, the property of the defendant. 3. That the apprentice, by reason of incurable illness, became unable to perform the services required of him in the indenture.
    The plaintiff took issue on the two first pleas, and demutred to the last.
    As to the first issue, it was admitted that the indenture had been duly executed by the parties to it, and the defendant offered evidence to show that it had been cancelled ; and it was proved, that after the supposed larceny above mentioned, the defendant went to one Ward, one of the selectmen of Phillipston, and represented to him the misconduct of the apprentice, and requested permission to cut his (the defendant’s) name out of the indenture. Ward at first hesitated, out on being informed by the defendant that he had advised with counsel, who told him it was a plain case, he consented, and the defendant’s name, together with a few words on the other side of the paper, were cut out accordingly, and without the concurrence of the other selectmen or overseers. Wilde J., who tried the cause, directed a verdict for the plaintiffs on this issue, subject to the opinion of the whole Court, whether a deed thus mutilated was valid and could by law maintain the issue for the plaintiffs.
    On the second issue certain confessions of the apprentice were admitted in evidence, though objected to by the plaintiffs because he was not a party to this suit, and the jury found that he did steal one piece of silver coin, of the value of one dollar, belonging to the defendant, and that he did not steal the other piece nor the bank bills.
    The defendant’s counsel objected to the indenture, because it was executed by Powers and others in their capacity of selectmen, and not as overseers of the poor ; and this question was reserved for the consideration of the whole Court. It was admitted that no overseers of the poor were chosen by the town of Phillipston in the year in which the indenture was made.
    On these facts the verdict was to be set aside or altered, if the Court should so direct; otherwise it was to stand.
    
      C. Allen for the plaintiffs.
    The indenture was properly executed by Powers and others in their capacity of selectmen. They were elected selectmen, and the circumstance that they were ex officio overseers of the poor, no persons having been specially chosen overseers, was merely incidental. The indenture could not be annulled by the act of one man ; Starkey v. Berton, Cro. Jac. 234 ; even if it could be by the act of the whole board. We say, however, that neither the board of selectmen, nor the board of overseers, had power to annul it. The statute does not intend that the indenture shall be vacated, except in case of misconduct, and then it is to be done by the Court of Common Pleas. St. 1793, c. 59, § 5. The plea of larceny is not a bar to the action, for the covenants in the indenture are independent. If they were not so, the master might avail himself of the services of the apprentice for several years, and then for a trifling failure of duty dismiss him and deprive- him of the wages or reward which he was to receive at the termination of his apprenticeship. Thus the damages sustained by the parties respectively, in consequence of a breach of covenant, would be very unequal ; which is one criterion of the covenants’ being independent 1 Chit. Pl. 314 ; 1 Wms’s Saund. 320 b note ; Campbell v. Jones, 6 T. R. 572 ; Boone v. Eyre, 1 H. Bl. 273, note (a) ; Stevenson v. Houlditch, 2 Vern. 492. The third plea likewise is insufficient Rex v. Hales Owen, 1 Str. 99.
    
      Hoar for the defendant.
    If this indenture is not made n pursuance of the statute, this action cannot be sustained. Whether the indenture be good at common law cannot be tried, since the action is brought by the plaintiffs as successors of the original covenantees. Thomas v. White, 12 Mass. R. 367. Powers are to be pursued strictly, and if this instrument was intended to be made in pursuance of St. 1793, c. 59, then, as by that statute the power is given to the overseers of the poor, the indenture should have purported lo be made by the selectmen in their capacity of oveiseeis. Gilby v. Copley, 3 Lev. 140 ; Combe's case, 9 Co. 76 b, 77 a. The overseers cannot maintain this action as successors of the selectmen. Those two sets of officers are distinct, and their powers and duties are different. The power here exercised is given to the office. But instead of the selectmen’s acting under St. 1793, c. 59, it must be presumed that they acted by virtue of St. 1794, c. 64, which authorizes selectmen to bind out apprentices, and which contains a provision similar to the one in St. 1793, c. 59, for an application to the Court of Common Pleas. Suppose the defendant had applied to the Court of Common Pleas to discharge him from the indenture and had summoned the overseers to appear, that court would have said the selectmen should have been summoned, and not the overseers.
    The covenants of the defendant were dependent. He could not rely on the duty of a young child, nor on the covenants of the selectmen, who did not render themselves liable by doing what the law required of them ; neither could he maintain an action against the inhabitants of Phillipston ; but the understanding must have been, that a performance by the apprentice was the consideration of the defendant’s covenants. The action therefore cannot be sustained, as there is no averment of a performance. 1 Wms’s Saund. 320 a, note 4 ; 2 Wms’s Saund. 352, note. 3 ; Godb. 153, pl. 199.
    The indenture was cancelled by cutting out the defendant’s name. A material alteration, even by a stranger, annuls a deed. Smith v. Crooker, 5 Mass. R. 538 ; Woodward v. Aston, 1 Ventr. 297 ; Pigot's case, 11 Co. 27 a; 3 Salk. 120 ; Mathewson's case, 5 Co. 23. The plaintiffs do not state that the deed was cancelled by mistake, but they declare on it as if it were entire, with a profert, and upon being pro duced, it appears to have been materially altered. They ought to have declared according to the facts. Read v. Brookman, 3 T. R. 160 Thoresby v. Sparrow, 1 Wils. 16 ; S. C. 2 Str. 1186 ; Waugh v. Bussell, 5 Taunt. 707 ; Smith v. Woodward, 4 East, 587.
    If the declaration is bad, the third plea ‘s of no importance ; it should seem however to be a good plea. It stales an uncommon event, which happened without any agency on the part of the defendant. He was to instruct the apprentice in the business of a husbandman, but he was prevented from performing that part of the agreement in consequence of the apprentice’s losing the use of a limb. The services to be done having been the consideration of the defendant’s covenants, if he is to derive no benefit from the agreement, he ought not to be compelled to perform the onerous part of it.
    
      J. Davis, in reply, said that the declaration was sufficient. The reason why a plaintiff is obliged to state that a deed is lost, is that he may be permitted to give evidence of its contents. It was unnecessary to make such an averment here, for the original deed was in existence and its contents were proved by the production of it in Court.
    The opinion of the Court was read at April term 1825, as drawn up by
   Putnam J.

The plaintiffs declare in covenant, as they are overseers of the poor of the town of Phillipston. It is objected, that the indentures declared upon were made by the selectmen of that town, and not by the overseers of the poor. But the answer is furnished by the statute of 1793, c. 59, § 1, which provides, that where there are not persons specially chosen to be overseers of the poor, “ the selectmen shall be overseers of the poor ex officio.'’'1 It is admitted that the persons who executed the indentures were duly chosen selectmen, and that no persons were specially chosen overseers of the poor. So the case is within the statute. And it was not necessary for the plaintiffs to state the manner in which the former overseers became such, whether by special election to that office, or whether it devolved upon them by force of the statute, in consequence of their being elected to be the selectmen of the town. It is sufficient that they were legally authorized to act as overseers of the poor.

It has been further objected, that the covenants are dependent, and that the defendant, having proved that the apprentice violated the engagement on his part by stealing the property of his master, should be excused from performing the covenants on his part. Whether the covenants are fo be considered as dependent, or as independent, must be decided by the intent of the parties, having regard to the whole instrument ; no particular form of words being requisite to constitute a test whether the covenants are or are not dependent.

By the indentures under consideration some of the cov enants were to be performed by the master presently, and some at a remote period. And so on the part of the apprentice ; his duty was to be a continued service until the end of his apprenticeship. We are of opinion that these covenants are independent. If it were otherwise, and the master should not supply a sufficient quantity of food for a single day, or the apprentice should disobey a single command, the contract would be dissolved, and the apprentice would lose the benefit of the instruction which the legislature intended should be given to him. Winstone v. Linn, in 1 Barn. & Cressw. 460, is a case much to this point. The declaration was on a covenant of apprenticeship for not instructing, &c. ; plea, that the apprentice would not serve, and particularly, that he refused to do certain things which he was bound to do, and, contrary to his duty, withdrew, &c. ; replication, that the apprentice afterwards returned and requested the defendant to receive and instruct him, but that the defendant refused to do it; to which there was a demurrer. Bayley J. states the question to be, whether the master is at liberty to insist that the indenture is no longer binding upon him, because the apprentice has unwarrantably disobeyed his commands. He observed that such indentures generally contain reciprocal covenants by each party, and that “ those covenants are mutual and independent, entitling each party to a remedy for a breach of them.” If it were proved that the apprentice embezzled or stole his master’s goods, it would not follow that the master might of his own authority put an end to the contract. It might be good evidence for the consideration of the Court of Common Pleas, upon a complaint of the master for gross misbehavior of his apprentice, but it would not per se give the master a right to discharge the apprentice. By the 20 Geo. 2, c. 17, it is provided, that the indentures may be discharged upon complaint made by the master, to two justices, of the misconduct of the apprentice, and Holroyd J., in the case above cited from Barn. & Crrsswell, refers to that statute as proving, that the master, by his own act, had no authority to put an end to the contract. This reasoning applies directly to the case at bar.

So the indenture is not avoided if the apprentice marries. Com. Dig. Justices of the Peace, B, 55.

It has however been contended for the defendant, that the overseers were not personally liable, and that the engagement of the infant was the only consideration for the covenants on the part of the defendant, and not sufficient to support them. But, by force of the indentures and of the statutes of the commonwealth, the infant did become the servant of the defendant. The defendant became entitled to the services of his apprentice, and had by law a right to inflict proper correction for his offences. He might cause him to be committed to the house of correction in certain cases, and in case of gross misbehavior the Court of Common Pleas is authorized to discharge the indenture. That authority is given by St. 1794, c. 64, § 4. Upon the same principle it was held in Gylbert v. Fletcher, Cro. Car. 179, that covenant would not lie, either by the common law or by St. 5 Eliz. c. 4, against an infant, but that the remedy for misbehavior was by correcting him, or complaining to a justice of the peace to have him punished. It is sufficient that the law has provided a remedy for the master. There seems therefore no want of consideration for the covenants of the defendant.

The case of Rex v. Inhabitantes de Hales Owen, 1 Str. 99, proves that the plea, that the apprentice became sick of an incurable disease, is not a sufficient answer to the action. In that case the servant was afflicted with the king’s evil and became incurably lame ; and it was determined that the master took him for better or worse, and was to provide for him m sickness. A different rule was applied where the apprentice became an idiot. Vin. Abr. tit. Apprentice, H, pl. 5 ; Anonymus, Skin. 114, pl. 7. The court of sessions in such a case discharged the master.

But there is an objection which is fatal to the plaintiffs’ recovery upon this declaration. They declare upon a deed with a proferí in curia, and to support the issue joined upon the plea of non est factum, they produce a paper which was signed and sealed by the defendant, but from which his seal and signature and part of the words of the deed had been cut out before the action was commenced. The circumstances attending this mutilation of the deed are stated in the report of the judge ; and the Court are of opinion, that the act was not warranted from the consent of one of the overseers. He was not authorized to act for his brethren, and the case stands just as it would, if the defendant had without any color of authority torn off his seal. The question then is, whether a paper in such a condition can be received on this issue as the deed of the party at the time of the plea pleaded. And the Court are of opinion that it cannot. When a deed is declared upon with a profert, it is by the intendment of the law in the actual possession of the court. Vin. Abr. tit. Faits, (M. a. 12,) pl. 3. It is the court, and not the party, which grants the oyer. The instrument is to be produced, that the court may decide whether it be in legal sense a deed. Now if the seal of a party be torn off, the mutilated paper cannot be shown as a deed. Matheioson’s case, 5 Co. 23. So if, after it was executed, it should be altered in a material point by the plaintiff himself, or by a stranger without his privity. Pigot's case, 11 Co. 27. If the seal be torn off, and after sewed together again, yet the deed is void by it. Vin. Abr. tit. Faits, (X) pl. 3 ; Perk. § 135. So if the seal of wax should be by casualty melted off, while the deed was in the hands of a stranger. Vin. Abr. ubi sup. pl 8. So if the seal were eaten off by mice. Com. Dig. Fait, F, 2. So if the deed be once sufficiently sealed, and the print of the seal be bruised, so as it doth not appear that it was sealed, it is insufficient. Perk. § 135. See also to these points, WhelpdaWs case, 5 Co. 119. We therefore conclude, that the paper offered by the plaintiffs was not the deed of the defendant at the .time of the plea pleaded, and consequently that that issue should have been found for the defendant, and not for the plaintiffs.

It has been however contended, that the defendant cannot avail himself of this matter, as the deed was destroyed by his own unlawful act. We are to consider merely what evidence will support the issue. If the defendant had, before the action, taken the deed and burnt it, and the plaintiffs had declared that they had the deed in court to produce, we could not upon such evidence adjudge the issue to be proved on the part of the plaintiffs. The defendant denies the allegation of the plaintiffs in the case supposed. They are obliged to confess that they have no such deed to produce as they declare upon, but they offer evidence tending to show that it is altogether the fault of the defendant which has prevented them from producing it. But that state of things existed at the time when the action was comm'enced, and the plaintiffs should have declared accordingly. To be sure, the right to the property is not destroyed, as is the deed, by the flames, or by the wrongful act of the defendant, or otherwise, but the plaintiff should declare according to the facts. If he had a deed, and it has been lost by time c accident, or has been destroyed by the defendant, or other wise, he should state those facts as the reason why he could not declare with a proferí. In the case at bar, the Court must say that a paper, in the condition of that produced by the plaintiffs, was not the deed of the defendant at the time when he pleaded that it was not. The fact is not altered by the consideration of the circumstances which destroyed the deed. Whether the seal were torn off by the obligor or by a stranger, by accident or design, it is not material to settle. The Court see that the paper produced has no signature nor seal, and so is no deed, and they are to tiy the cause upon the issues which the parties join.

There is a case cited in Vin. Abr. tit. Faits, (X) pl. 8, determined in 43 Eliz., where one had a deed, and the party from whom he had it took it from him and pulled off the seal, and it was ruled that he might plead this without showing the deed, but should plead that his adversary had done this. That course of pleading agrees with Read v. Brookman, 3 T. R. 151, where it was held, that a deed lost by time and accident might be pleaded without a profert. The circumstances which excuse the profert should be stated. See Totty v. Nesbit, 3 T. R. 153, in not. Per Buller J. 11 You have declared with a profert ; and after that the court cannot say that the defendant shall not have oyer. S. P. Matison v. Atkinson, ibid. So in Smith et al. v. Woodward, 4 East, 586, where the defendant had taken aioay the original deed, and the plaintiffs declared with a profert, it was held that they could not be permitted to give a copy in evidence. In that case the plaintiffs were parish officers, and on the issue of non est factum, they proved, that the defendant got the deed before the action was brought, and acknowledged that he burnt it. The opinion of the court was given by Lord Ellenborough, who said, “ There is no case, where the issue being whether such a deed, proffered by the plaintiff to the view of the court, and supposed to be in court at the time, be or be not the deed of the defendant, in which it has ever been decided that any thing can dispense with the production of the deed itself.” We are aware that this is a mere technical difficulty, and that the merits of the case are with the plaintiffs. The verdict, notwithstanding, must, for the reasons above stated, be set aside.

Note. — The cause was continued on a motion of the plaintiffs to amend their declaration. 
      
       See Couch v. Ingersoll, ante, 292, and note to that case.
     
      
       See 1 Chit. Gen. Pract. 70, 71.
     
      
      
        Easley v. Craddock, 4 Randolph, 423.
     
      
       See ante, 332, note 1.
     
      
      
         See Cutts v. United States, 1 Gallison, 69 ; Smith v. Emery, 7 Halsted, 53 ; Rees v. Overbaugh, 6 Cowen, 648, 649 ; Bolton v. Carlisle 2 H. Bl. 259 ; Hawley v. Peacock, 2 Campb. 557 ; Hendy v. Stephenson, 10 East, 55 ; 2 Stark. Ev. (4th Am. ed.) 475, 476 ; Branch v. Riley, 1 Root, 541 ; Kelly v. Riggs, 2 Root, 126 ; Hinsdale v. Miles, 5 Connect. R. 331.
     
      
       See Powers v. Ware, 4 Pick. 106.
     