
    Hart against Hosack.
    An accountable receipt given for a note borrowed, should be taken up when the note is settled. A child of fourteen years, put with a physician on trial, to see how he would like the profession, cannot make an election to become a student, so as to charge the parent with an apprentice-fee. In Hew York, no fixed rate of fees for taking apprentices in the medical line.
    Assumpsit for money lent and advanced, for money had $nd received; plea, nun-assumpsit and payment, with notice of set off. The plaintiff proved, and gave in evidence the following promissory note:
    “ Sixty days after date, I promise to pay Dr. David Hos-sack, or order, three hundred and seventy-five dollars, value rec’d. 1ST. York, 5th February, 1800. Eph’m. Hart.” The plaintiff also proved, that he paid this note when it was due; and in addition proved, and gave in evidence the following accountable receipt:
    
      *“ I promise to ACCOUNT with Eph’m. Hart for his note payable to me for. three hundred and seventy-five dollars, dated this day, at sixty days. N. York, 6th February, 1800. David Hosack.” From the facts of a case reserved, it appeared that the defendant is a physician, and alleged that the note was intended as an apprentice-fee for taking the plaintiff’s son. In support of this defence, the defendant called witnesses, who testified that the plaintiff’s son came to the defendant the latter part of the year one thousand seven hundred and ninety-nine, and continued with him till the spring of one thousand eight hundred ; that the son was considered in the defendant’s shop as a student; that the witness understood from the son, that he was to be some time on trial; but the witness did not hear him say how long; that the defendant’s usual apprentice-fee is three hundred and seventy-five dollars; and the witness paid this fee to the defendant when the witness commenced his studies; that the witness has heard the son say he was to pay the defendant a fee of three hundred and seventy-five dollars; that the son had a ticket for the hospital, which was obtained for him by the defendant, and is only granted to regular students, and it would have cost five dollars to any other person ; that the son had free admission to the defendant’s libfary, and used his books; that one of the witnesses gave the defendant only one hundred and fifty dollars as a fee, owing to particular circumstances ; that the son, after being about three months with the defendant, said he had been upon trial, but that he was now a regular student; that the son was a boy of about fourteen years of age; that the defendant’s usual term of apprenticeship is three years; but there is no particular period fixed by agreement; that he had heard several physicians say that it was not usual to return an apprentice-fee; and one witness stated, that he had known an instance in which a return of the fee was refused.
    Elias Noah, on the part of the plaintiff, deposed, that he was very intimate in the plaintiff’s family; that the defendant, by letter, which the witness saw and read, informed the plaintiff he had occasion for money, and applied to the plaintiff to borrow his note. Upon this, the plaintiff made and delivered to the defendant the note above mentioned, and the defendant signed and delivered the receipt above mentioned; the witness always considered the transaction as a loan by the ^plaintiff to the defendant, [*27] and nothing else; that the witness several times met with the defendant in the plaintiff’s family; that the defendant was very solicitous to have the plaintiff’s son come and study physic with him; that the defendant used much persuasion for this purpose, both with the’plaintiff and with his son; that finally, the plaintiff and his son consented that the son should study physic with the defendant; that it was expressly agreed between the plaintiff and the defendant, that the plaintiff’s son, if he went to study physic with the defendant, should have a right to quit the defendant whenever the plaintiff’s son pleased to do so; that the son, after this agreement, went to study physic with the defendant; that he attended the defendant’s shop but irregularly ; that he adopted, after being some months with the defendant, an opinion, that he could not, from the acquaintance he had formed in New York, pursue his studies as closely as he ought to; and thereupon, he left the defendant, and went to Europe; that the witness always understood that the son was merely on trial with the defendant.
    The Judge charged, that this case did not depend on any general custom of the faculty, or of this defendant, in relation to the fee in question; but op. the particular agreement; that the defendant had, no doubt, a right to fix what price he thought proper for his students; but, whatever might be his established fee, he was bound by an agreement he had made; that, on this subject, little dependence ought to be placed on the declarations of the plaintiff’s son, who was no more than fourteen years of age; particularly, as he must be considered as under the control oi. his father. Neither ought much stress, in his opinion, to be laid upon the circumstance of the defendant’s procuring the son a ticket for the hospital; as his father, or the defendant, might have thought it proper to procure the son a ticket, although he was merely on trial with the defendant ; that if the j ury believed that the son'had gone to study with the defendant on trial, that the time for trial had elapsed, and that afterwards, the plaintiff and his. son had elected that the son should continue and serve his apprenticeship with the defendant, then it would be their duty to find a verdict for the defendant; but if they believed that the son was with the defendant on trial, and that, by [*28] virtue of an agreement between the plaintiff *and defendant, the son was entitled to leave the defendant whenever the son disliked to remain with the defend-' ant, then it would be their duty to find á verdict for the plaintiff; deducting, however, from the damages, a reasonable allowance for the time the son was with the defendant
    The jury found a verdict for the defendant.
    On the above facts, it was now moved, on the part of the plaintiff, to set it aside, as contrary to evidence.
    Troup, for the plaintiff.
    The action was to recover money lent; the defence, that it was given as an- apprentice-fee. The question then is, whether, from the evidence, it was a loan or a payment. That it was the former, is manifest from the evidence of Noah, who saw the defendant’s letter asking to borrow money. If the money was a payment, it was singular a request should' be made to have it lent. It is not usual for creditors to’ borrow their debts due, and give accountable receipts for the amount. The agreement on which the plaintiff’s son went is expressly proved; he was to leave the defendant when he pleased; and the receipt was, therefore, worded as an accountable" one; becaitse, if the son did not continue to complete his studies, only a proportionable sum was to be paid. The plaintiff did not contend the three hundred and seventy-five dollars were to be recovered without deduction; but that the defendant was not entitled to the whole, against his agreement and his receipt. No argument could be drawn from the election of the son, had it been clearly established: he was .only fourteen years of age, and could not elect without the concurrence, and under the control, of his father. As to the defendant’s witnesses, their testimony went to facts perfectly immaterial: the ground of the suit was the agreement; by that, no time was specified for electing to leave the defendant: whenever the election was made, and the plaintiff’s son did leave the defendant, he was, upon his receipt, to account; and, for so much of the usual tune of studying under the tuition of the defendant as was unexpired, a deduction was to be made: thus, and thus only, the contract in evidence, and the receipt, could be consistently explained.
    
      Pendleton and Hoffman, for the defendant.
    The application can succeed only on two grounds; either that the verdict is against the weight of evidence, or against a rule of law arising out'of the *facts. To decide on [-29] the first, the court must assume the office of jurors, and this they never do where there is evidence on. both sides, unless it is by much the strongest on one side. The jury here have decided on the credibility of the witnesses; the court will not interfere with their province in that respect, to give another opportunity to weigh the credit of the same witnesses. This was never done, but when the testimony was by foreign witnesses, and taken abroad; then the court would do it to procure evidence of their credibility, because the jury must be ignorant of it'; therefore, knowing only the credit of their own countrymen, they could not weigh it with that of foreigners residing abroad. The note for three hundred and seventy-five dollars, made by the plaintiff when his son was upon trial, was the reason of the accountable receipt. It was not an engagement to repay a loan, but to be accountable on a contingency, whether the son would be a student or not; there was no precise time for this: the son was on trial; when he chose to be a student, the trial terminated, the account was complied with; and there was to be no return; for the sum was fairly due. The dates of the transactions prove this ; and afterwards the son is found to be a student by having a certificate gratis, which none but students could obtain without paying five dollars. The court must suppose him a student, or that the defendant had been guilty of a fraud, by signing a false certificate. Noah says the son was to determine whether he would be a student or not, and the other witnesses say the son did elect to become one. Noah swears positively to a fact he could not positively know, the destruction or loss of the letter, in which the defendant applied to the plaintiff to borrow money: and it is very singular he should apply to borrow the very sum due him for a fee, and that the application should be to the very man whose son was a student with him, in preference to all others. The reason why the receipt was an accountable one, was not because no time was fixed for the plaintiff’s son to make an election, but because the defendant was not to be accountable after the trial had.
    This construction is that which the jury put on the transaction.
    A pro rata accountability, for one or two years, [*30] when it might please the son of the plaintiff to *leave the defendant, was absurd in the case of either a student of law or physic. If, however, the inference from the facts was doubtful, the jury have drawn a conclusion which, according to legal principles, must be decisive..
    
      Harison, in reply.
    The plaintiff is contending for his fair and just rights: if injustice has been done, this court will interpose, and grant a new trial. It is admitted that there was a period when the whole fee was not due; that is in evidence: there is no proof that at the end of four or five months the defendant could erect himself into a judge, and think himself entitled to the same fee as if the plaintiff’s son had staid with him four or five years. The principle insisted on by the plaintiff is one that is found in every volume of law. Chancery is full of decisions of apportionment of apprentice fees,  which depend entirely on the quantum, of services mutually rendered. This is the constant rule of acting, unless some custom or usage of trade to the contrary, be established. Of this there is no kind of evidence: the defendant cannot make and set up one for himself. On this point, the defendant’s witnesses speak only as to hearsay, and give one solitary instance of a custom, as it has been called. The usage, then, is out of the question; and the question depends on the agreement; of this, Noah’s testimony is conclusive: it is also uncontra• dieted; and from his situation, connected with his acquaintance in the family, it is highly probable he knew all the circumstances of the contract better than any one else: nor could any one but Noah prove the loss of the letter asking a loan of money. He had seen and read the letter; and is it to be supposed the plaintiff would not have produced the letter, if he had been able ? As he was not, and could not prove the loss himself, Noah only could do it; who, like all other third persons in similar situations, swears to his firm belief. A belief warranted by reason, and the question I have just asked. The agreement on which the son was taken, and the note given, is the only evidence that can affect the cause. The defendant’s witnesses neither do nor can, speak to this. The certificate, use of the defendant’s books, &c., are nothing to the purpose. We find the defendant acting with peculiar solicitude to get the plain- ■ tiff’s son as a student; and the extraordinary liberality of the defendant’s agreement, might not, if taken as [*31] the result of his anxious entreaty, be ^thought so absurd as has been argued. The son was not obliged to elect when the note was due : no proof of the contrary;.if it was so, and then the fee was payable, and the note accounted for, how comes it that the defendant never calls upon the plaintiff for the accountable receipt, hut leaves it to be produced and made use of against him? Had the fee been absolutely due, at the end of sixty days, ■ che receipt ought to have been demanded; and, as the plaintiff took up his bill, the defendant should have taken up his receipt. The defence of Doctor Hosack is to demand wages for labor not done; is contrary to every principle of natural justice, and, therefore, the court will grant a new trial.
    
      
      
         The researches of the reporter do not afford an authority for this distinction.
    
    
      
      
        а) On the bankruptcy of a. master, the apprentice-fee is generally apportioned ; the apprentice (or perhaps his father) being permitted to come in as a creditor, for the balance, after deducting a compensation to the master for the time served, (Ex parte Sandby, 1 Atk. 149,) or allowing the apprentice a gross sum out of the estate. Barwell v. Ward, Ibid, 261. Where a master turned away an apprentice on account of ill behaviour, and the indentures had not been enrolled, (note this,) chancery has ordered thirty pounds out of forty-five to be returned, Thurman v. Abel, 2 Vern. 64. But unless in the cases of bankruptcy and death of the master, the jurisdiction of the court of chancery seems very doubtful. Argles v. Heaseman, 1 Atk. 518. Dillan's Case, 1 Salk. 67; 1 Rev. Laws, 189, s. 9.
    
    
      
      
        Newton v. Rouse, 1 Vern. 460, one hundred guineas, part of an apprentice-fee, was ordered to be re-paid, the master having died within three weeks after signing the articles, though they expressly mentioned sixty pounds only-should be returned, if the master died within a year. But see Hale v. Webb, 2 Bro. Ch. Rep. 80, where Lord Kenyon, then master of the rolls, said, tho decision above had carried the jurisdiction as far as could be.
    
   Per Curiam.

The plaintiff, on the trial of this cause, gave in evidence a promissory note of his own to the defendant. Elias Noah proves that this note was borrowed of the plaintiff by the defendant, on giving a receipt, promising to be accountable to him for it. The defence set up is, that the note was a fee to the defendant foi taking the plaintiff’s son as an apprentice. A motion has been made to set aside the verdict, as against evidence, and obtain a new trial. This, the court are of opinion, ought to be granted.

The receipt given by the defendant, which was never taken up or called for, and the testimony of Noah, both agree in proving the money to have been advanced upon Joan; this testimony remains in full force, notwithstanding any thing that was proven on the part of the defendant. "What is related of the son, that he was to be some time on trial, is in confirmation of the agreement stated by the plaintiff's witness. The only circumstance of any weight on the part of the defendant, is the further confession of the son that he was to pay three hundred and seventy-five dollars, and that he had been some time on trial, and was then a regular student. But this confession by the son, without the knowledge or authority of the plaintiff, ought not to conclude him. The fact, too, that the son.soon after left the defendant, and went to Europe, proves that the reservation in the original agreement had not been waived. In short, the evidence does not warrant a verdict for the defendant; and a new trial must be awarded on payment .of costs.

Lewis, Ch. J.

If the plaintiff is satisfied that a proportion should be paid, might not a new trial be saved ?

*Troup. There is a verdict for the defendant.

Kent, J.

Is there no objection- to allow for five months, at the rate of the sum usually paid for three years ?

Troup. None, if we can get rid of the verdict.

The parties not agreeing,

Rule for new trial granted. 
      
       On the new trial a second verdict was rendered in favor of the defendant.
     