
    [*] WOODRUFF against COREY. [406]
    IN ERROB.
    Guardian binding an apprentice, is bound only to perform his own, not the boy’s covenants.
    The action below was an action of covenant, brought by "Woodruff against Corey, on an indenture of apprenticeship, very much in the usual form. The indenture first set out that Conklin Miller put himself, and by and with the consent of Benjamin Corey, and Moses Miller, executors to the estate of his father, Ephraim Miller, deceased, doth voluntarily, and of his own free will and accord, put himself an apprentice to Stephen Woodruff, to learn the art, trade and mystery of a house carpenter, and after the manner of an apprentice, him to serve, and that he would not absent himself from his master’s service during the term of his apprenticeship, with other usual covenants of faithful service. The indenture then set out the covenants on the part of the master. That he shall use the utmost of his endeavors to teach the apprentice his trade, and provide meat, drink, lodging, washing and mending for him ; also find him certain working clothing, and six months evening schooling; after which was the following clause: And that the said Beirjamin Corey and Moses Miller, covenant and engage to find the said apprentice all the rest of his wearing apparel during his apprenticeship; and for the true performance of all and singular, the covenant and agreement aforesaid, the said parties bind themselves each unto the other firmly by these presents. In witness whereof, the parties aforesaid, have interchangeably set their hands and seal thereunto; dated, &c.
    The breach assigned, was, that the apprentice had absented himself from his master’s service, contrary to the covenant. The defendant demurred to the declaration, and the plaintiff joined in demurrer, and the Common Pleas rendered judgment for the defendant; on which the plaintiff below brought this writ.
    Several points were raised by counsel, but as the [*] decision turned upon one, I shall confine the report of the case to that, viz.: That the plaintiff attempted to make the defendant liable on covenants only obligatory on the apprentice, and which the defendant never personally entered into.
    
      Mr. Chetioood, for the plaintiff,
    cited Whitley v. Loftus, 8 Mod. 192; and Branch v. Ewington, Douglass, 518; which he said were in point, and as he considered, settled the question, as far as those decisions were law in this State; that it was a very important question, and he trusted that the court would not depart from the settled adjudications on the subject.
    [407]
    
      Mr. I. H. Williamson, for the defendant.
    The covenant on which the breach is assigned, is not the covenant of Corey, the executor, but of Miller, the apprentice. That there was certainly no express covenant on the part of the executor. That if it was a covenant at all, it was an implied one. That implied covenants are restrained by particular covenants in the same instrument. 1 Vesey, 101. That there was no analogy between this case and that in Mod. Each one of these parties bind themselves for their own covenants. If this construction is to prevail, no guardian will ever sign an indenture of apprenticeship. The intent of the parties is to govern, in all instruments. He cited a case from Mass. Rep. 888, to show that a case in Massachusetts had been decided that favored the construction which he contended for.
    
      Mr. Ghetwood,
    in reply. The Massachusetts case is a case that arose on the binding out a pauper, and therefore inapplicable.
   Kirkpatrick, C. J.

The court are of opinion, that the instrument under consideratum, cannot with propriety be construed so as to bind Corey farther than he has covenanted specifically in the indenture to bind himself; not meaning however to disturb the cases in the books, the court confine themselves to [*] the case before them, and the intent of the parties collected from the instrument.

Pennington, J.

Although he concurred with his brethren in deciding this case on its own peculiar circumstances, yet he could not refrain from saying that he never was satisfied with the case in 8 Mod. or that in Douglass; and that this case, in his mind, served to exhibit in a strong point of light, the impropriety of those decisions. That the English decisions went on the ground of the father and the apprentice forming one party, and the master another, which was not his understanding of the subject; especially under our act of Assembly, which to his mind contemplated a contract between the master and the apprentice, which was rendered valid by the express provisions of positive law. That the assent of the father, and in case of his death the mother, or guardian, directed by statute to be inserted in 1he indenture, and the name of such father, mother or guardian, subscribed thereto, was intended, first, as a provision against improvident acts of the infant; and second, for the protection of parental authority. In case the father or guardian stipulate to do any act himself, as in this case was done, so far he is bound, and no farther.

Judgment affirmed.  