
    TALLMAN against WOODWARD.
    ON CERTIORARI.
    State of demand on the apprentice act, sufficient. Certiorari lies in such case.
    The action below, was founded on the following state of demand, and was brought on the 6th section of the act respecting apprentices and servants, Pat. 306, giving a penalty of thirty dollars against any person [188] who shall counsel, persuade, entice, aid or assist any clerk, apprentice or servant to run away, or absent himself or herself from the service of his or her master or mistress.
    
      
    
    On this there was a trial and verdict — and judgment for the plaintiff below. This writ was brought to reverse the judgment of the justice, on two grounds: 1st. The uncertainty of the state of demand. 2d. That [*] Phebe named in it, was a slave, and not a servant — and therefore, could not come within the act. There was, however, nothing in the record of the justice, to show that Phebe was a slave.
   Kirkpatrick, C. J.

— This is an action for a penalty, grounded on the 6th section of the act respecting apprentices and servants. Upon inspecting the proceedings of the justice, I do not perceive in them any matter of error. The reasons assigned for reversal, have no foundation in the record.

Rossell, J.

— This certiorari was brought to reverse a judgment obtained before John Patterson, Esquire, for a penalty under what is generally called the apprentice act.”

By the 10th section of this act, it is enacted — “ That no writ of certiorari or other process shall issue, to remove into the Supreme Court any proceedings had in pursuance of this act, before any justice or justices of the peace, or any court of general quarter sessions of the peace.”

On examining the act I am of opinion that this section extends only to the proceedings of justices of the peace and quarter sessions, in disputes between masters, their apprentices and servants. The fifth section particularly designates the duty of the justices, and is, independent of any other law, a sufficient authority for their proceedings in complaints of masters, apprentices or servants.

The seventh section of the act, under which this suit was brought, declares that every person who shall counsel, persuade, entice, aid or assist any servant or apprentice to run away, &c., shall forfeit and pay thirty dollars, to be sued for by action of debt in any court having cognizance thereof.

This section fixes the penalty for the offense, and prescribes the form of suit, it is true, but gives no exclusive [*] jurisdiction to justices of the peace; neither does it give them any directions how to proceed. Taken by itself, then, it would be impossible for the injured to obtain redress under it. A justice of the peace, on application to him for a recovery of this penalty, does not look to this act (except in the two instances above alluded to) for directions how to proceed; but his proceedings are regulated by the act constituting courts for the trial of small causes. Shall these proceedings, then, be said to be in pursuance of the apprentice act, or of the one last mentioned ? I think clearly of the latter.

This being the case, I go to the examination of the reasons assigned for a reversal, not one of which (and there are five) are supported by the record. But as one of my brethren has taken up the state of demand, and is of opinion that the action cannot be sustained on it, I shall give a few reasons for a different opinion. The state of demand is as follows:

The plaintiff, in this state of demand, has pursued the very words of the act, and, I think, with much propriety. The legislature, in the formation of this section, have used five different modes of expression, as descriptive of the offenses it is intended to remedy, or punish. I say offenses, as they, without doubt, intended to designate distinct and separate acts; for if there [*] is but a slight shade of difference in the words counseling, persuading, enticing, these certainly do not carry the same meaning as aiding and assisting. They have, then, classed distinct offenses in the same section, and a person may be guilty of the whole of these offensés or a part of them, and so, as I understand it, says the plaintiff in his state of demand. But if it is said that the words or some part thereof are too vague and uncertain; yet it is a rule of law that where a jury find the substance of an issue, or a verdict or judgment is complete, other matter, though uncertain, shall be rejected as surplus-age. I am of opinion that for these reasons the judgment be affirmed.

Pennington, J.

— I am clearly of opinion that the state of demand filed before the justice cannot be supported, by reason of its uncertainty. The cause of action should be distinctly stated, and contain a direct charge. The' most favorable construction for the plaintiff below is the one contended for by his counsel, that the declaration ought to be read in such a manner as [190] to make it charge the defendant with counseling, persuading, enticing, aiding and assisting his servant to absent herself from his service, or with having done one of those acts. That is, you have committed a number of distinct offenses, or you have committed one of them, without naming which one particularly. I apprehend that this itself could not be supported; it would be vague and uncertain; you have done five things, or you have done one of the five. But the state of demand is not so certain of this, for it charges the defendant with counseling, persuading, enticing, aiding and assisting, &c., or some part thereof; that is, you have done certain acts or you have done some parts of those acts, not some one of them. To commit part of an offense, or to commit part of four or five offenses, does not make one offense; you cannot throw things together in this heterogenous manner and make out an offense. These are all distinct offenses, [*] though they are greatly similar; and although the difference between counseling and persuading is small, yet assisting is very distinct from persuading or counseling. For this uncertainty in the declaration I think the judgment ought to be reversed.

Hunter, for defendant.

Scudder, for plaintiff.

Judgment affirmed.  