
    Stringfield vs. Heiskell.
    An indenture or contract of apprenticeship executed by the father of a minor, but to which the minor was nota party, conveys no right to the custody of his person or to his labor; it is not binding upon him.
    
    An indenture of apprenticeship cannot bo assigned .
    
    
      M here, from the plaintiff’s own showing, he has no cause of ac-ión, the judgment for defendant will not be reversed, although the charge of the-circuit court may, in some particulars, have been erroneous.
    This was an action on the case, brought by the plain-tifi against the defendant, for enticing away his apprentice. The declaration contained several counts. The first states, that David Clayton was and is the servant or apprentice of the plaintiff, in the trade and business of printing; and the defendant contriving to injure him, unlawfully and wrongfully enticed, persuaded, and procured the said Clayton to depart out of the service of the plaintiff, and to remain out of his service for a long space of time, to the plaitftiff’s injury and damage.
    The second count states, that said Clayton being the servant and apprentice of the plaintiff, departed out of his service against his will, and came to the defendant, and the defendant well knowing the premises, retained him the said Clayton in his service, to the plaintiff’s damage. '
    
    The third count states, that on the 6th March, 1828, Daniel Clayton, father of the said David Clayton, and Thos. Stringfield the plaintiff, executed and delivered articles of agreement and of apprenticeship, which were signed with their names respectively; whereby the said Daniel agreed with the said Thomas, to bind his two sons, David and William Clayton, to the said Thomas, to learn as apprentices the art of printing, and the superintendence of a printing office; and by the said agreement, said David was to remain with the said Thomas, or subject to his direction, until the 28th day of April, 1831, to wit, three years; and William until the 4th day of October, 1833, that is, five years; and the said Thomas further stipulated with the said Daniel, that he, the said Thomas, would learn the said boys David and William Clayton, or have them learned, as much as they will be able and willing to receive of the art of printing. Wherefore the said David, being by said agreement the apprentice of said Thomas, and subject to his entire control from the date of said agreement to the 28th day of April, 1831, was on the -day of-1829, placed in the printing office of one Robert Crozier, in order that the said Thomas, according to his agreement, might have him, the said David Clayton, instructed and learned so much as he was able and willing to receive of the art of printing, during the term aforesaid, and in obedience to, and in compliance with the agreement or articles of apprenticeship between said Thomas and said Daniel; yet the said defendant, well knowing the premises, but contriving and wrongfully intending to injure the plaintiff, and deprive him of the services of said David, as such apprentice, and of the profits, benefits and advantages which might and otherwise would have accrued to said plaintiff from such service, whilst said David was such servant and apprentice, he, the said defendant, unlawfully enticed and procured the said David, then being such servant and apprentice, to depart from and out of the service of said plaintiff, and said defendant did receive and take said David into his, defendant’s service and employment; by means of which enticement and procurement, he, the said David, so being such servant and apprentice, on the -day of-&c. unlawfully and without the consent of said plaintiff, departed from said printing office, and from and out of the service of said plaintiff, and remained and continued absent from him for a long time, and whereby the plaintiff has lost and been deprived of the services of the said David, and of all the benefits and profits which might and otherwise would have arisen and accrued to him from his, the said David’s labor, service an(j employment, as such apprentice in the printing office of said R. Crozier, as aforesaid, and hath been and is otherwise greatly injured, and has sustained-dollars damages.
    To this declaration the defendant pleaded not guilty; on which issue was joined, and verdict, that the - defendant was not guilty on either of the counts in the declaration mentioned. A new trial was moved for and refused. Judgment, that defendant go hence without day, and recover his costs, &c.
    A bill oí exceptions taken on the trial in the circuit court, sets forth the agreement in the declaration stated, between the plaintiff and Daniel Clayton, and as therein stated, with the addition, that the plaintiff promised to give William Clayton one horse, bridle and saddle at the " end of his term of servitude, worth ‡ 125; and the parties bind themselves, their heirs, &c. faithfully to attend to the contract, under the penalty of ‡500. This agreement is signed by the parties, but not sealed. There was also given in evidence, a written contract between the plaintiff and Robert C. Crozier, dated the 8th day of May, 1829, which stated, that the plaintiff has sold to said Crozier his printing establishment of the Knoxville Enquirer and American Whig, its types, press, &c. &c. and also surrenders to said Crozier the management and control of David Clayton and William Clayton, two indented apprentices, now connected with said establishment, to be and remain until they respectively attain the age of 21 years; to be boarded, clothed and maintained by said Crozier, without charge to said Stringfield, and signed by Stringfield and Crozier, but without seal.
    A notice is next given in evidence as follows: “Mr Ileis-kell, David Clayton is an apprentice at my office, and I hereby give you notice, that you may'not retain him in your service. R. C. Crozier.”
    
      This was answered by the defendant’s denying the right oí Crozier.
    Afterwards another notice was given by Stringfield, the plaintiff, stating that David Clayton is a legally indented apprentice to him, that he has his father’s written obligation for this purpose, and expects that defendant will no longer harbor said David. This notice was received by the defendant, Heiskeii, who refused to deliver him up. It was proved, that David Clayton, while in the plaintiff’s office, was taught to be a good printer, and that when he left it, his services were worth $12 or $20 per month; that while in the office he was well treated, and that plaintiff’s contract was complied with on his part up to the time said David left the office; that David, after the death of his father, became dissatisfied with his situation, and left the office with an intention to return to Alabama, but changing his mind, went into the defendant’s employment, but was never offered inducements by Heiskeii to leave the service of Crozier. It was also proved, that Stringfield paid Daniel Clayton, the father,
    
      John and T. L. Williams, for plaintiffs in error.
    
      Jamagan and -Alexander, for defendants.
    
      
       Acc. King vs. Cromford, (8 East 25; 9 East 295;) exparte, Chesterfield, (2 Salkeld, 479.
    
    
      
       Vide Nickerson vs. Howard, (19 John. Rep, 113;) Strange’s Rep. 1266.
    
   Opinion of the court delivered by

Judge Whyte.

The principal question presented on this record, (not noticing inferior one’s for the present,) is, whether the plaintiff is entitled to recover upon the case made by his declaration. He founds his title to recover upon an agreement in writing, between himself on the one part, and the father of the apprentice, David, on the other, whereby it was stipulated on the part of the father, to bind his two sons, David and William, to the plaintiff, as apprentices to learn the art of printing, &c. as set forth in the declaration, &c. &c. The first question arising here is, what interest did the plaintiff, Stringfield, acquire in and to the son, David, by the said agreement? And here it will be remarked, that in the present case of a contract of apprenticeship made by the father, thereby binding Ms son, it is considered that there is no difference between a deed that is under seal, and a written agreement that is not under seal, but only signed by the parties, as to the rights created and the liabilities incurred by the instrument purporting to constitute that apprenticeship. No authority or book was cited on the argument, proving that the plaintiff, Stringfield, acquired any right to the person or to the services of the son David, by the above agreement or deed, admitting it to be a deed, and this court have not been able to find any. On the contrary, it is laid down by Kent in his commentaries, (vol. 2, page 212,) where he says, “the father has no authority under the statute (and the later English cases say he has no authority even at common law,) to bind his infant son an apprentice, without his assent.” And in Barnwell and Alderson’s Rep. page 584, it is laid down, that “there is no sufficient authority for saying, that a father, at the common law, can bind his infant son an apprentice without his assent testified by the execution of the indenture.” These authorities prove, that the agreement, deed or contract of the father, Daniel Clayton, passed no interest in his infant son David, to the plaintiff Stringfiled, at the common law. If any interest whatever was acquired by the agreement or deed, it must be by statute. There is no statute of the parent state, North Carolina, or of the State of Tennessee, that reaches the present case.

It is true, in England, in the reign of Queen Elizabeth, and before the colonization of this country, statutes were enacted on this subject, and added to in every succeeding reign almost without exception, from that time down to the present, as the supposed public policy of that country required; rearing up a system believed by them to¡be necessary and proper for the attainment of that degree of perfection and excellency in the arts, trades and mysteries referred to in them, which as a manufacturing people, might conduce to their success and prosperity. These statutes gave an interest in an apprentice constituted under their provisions, that his personal attendance to his business under his master was ensured and compelled “ under the rigours of a house of correction. Accordingly, under these statutes an infant may be taken and bound an apprentice to a trade for the space of seven years without his consent, and any man (as a master,) against his will might he compelled to take this infant as an apprentice. But none of these statutes ever were received into this country, or their obligation acknowledged; neither can deductions from them militating against the principles of the common law, be applicable here. Upon this view of the plaintiff’s case, his action is not sustainable, either by the common law or by statute. He has no right either to the custody of the person, or the receipt of the services of David Clayton. The latter might have left the printing office and business of the plaintiff the first day he went there, or on any intervening day or hour between that and his final departure, without the power of being reclaimed. This makes a final disposition of the present cause, and of the plaintiff’s rights as against the defendant Heisbell; and inasmuch as it appears by the last count in the,plaintiff’s declaration, where his case is specially set forth, that he hath no cause of action, it is unnecessary to notice the objections taken to the correctness of the charge of the judge, or to the propriety of the finding of the jury; for however exceptionable (which is not admitted) either or both of these may be, it is immaterial, as the plaintiff in his declaration shows he has no title to recover.

The above view taken of this cause is considered to be the right one; but as it is different from the one presented on the argument, on behalf of the plaintiff by his counsel, a short notice of it will be taken, for the purpose of ascertaining whether it will authorize a different disposition of this cause, from that above entertained and expressed. The plaintiff’s argument exhibits a view of this case, which considers the binding of David Clayton, the son, by the father, to the plaintiff, Stringfield, as a valid contract, an act transferring an interest in the apprentice, entitling him as a master to the custody of the person, as well as the profits of his labour, and conferring upon him also, as a consequence of such right, in the case 0f tlie departure of the apprentice from his business, the right of recaption; hence the proceeding by the notices set forth in the record, from Crozier and Stringfield to the defendant Heiskeii. \And it is further contended for the plaintiff, that by virtue of the contract with the father, he hath not only the interest in the son, claimed by him, but also by law, the power of assigning or transferring this interest to another person, which he exercised on the present occasion in favour of Crozier; and to support Salk. 68, is cited and relied upon. To this argument it is answered, that admitting the proposition to be correct, (which cannot be so) that the contract of the father transferred to the plaintiff an interest in the son, entitling the plaintiff to the custody of the person of the son and the proceeds of his service, yet it does not follow as a consequence of such interest, that he could assign and transfer it to another. I. Why? Because the interest is a personal trust and confidence reposed in and peculiar to the depository or transferer, in its nature incapable of assignment. Thus, it is laid down in 4 Ba. Abr. (Wilson’s Edition, p. 577,) “the placing out an apprentice to a particular person, arises from an esteem and good opinion of the party to whom he is so committed, that he will not only instruct him in his trade or calling, but will also be careful of his health and safety; and therefore the law has made it such a personal trust or confidence? that the master cannot assign or transfer him over to another.”

But this law is attempted to be evaded by the provision in the instrument making the apprenticeship, which says: “Thomas Stringfield on his part promises to learn them? (or have them learned) as much as they will be able,” &c., &c. It is argued, that under these words, “or have them learned,” the power of assignment or transfer is given to the master, Stringfield. It is a sufficient answer to this exposition, that it is not a true construction of the agree* . , , , . ment, or articles of apprenticeship. An assignment or transfer of the apprentices to another person, never was in the contemplation of the parties; this is further evidenced bj the letter of the father to the plaintiff, were it necessary to have recourse to it, which it is not for this purpose. These words “or have them learned,” were intended to cover personal defects if any, of the party String-field, in not being a printer (properly so called) himself, and to authorize the communication of that part of the master’s duty by another. But it was not intended thereby to dispense with the other duties of the master, as his personal care and inspection, promotive of the apprentice’s morals, health and safety, which might by possibility be endangered by a removal and transfer to another master, and to another (though similar) establishment. Such is the understanding of the law on this point, and is so expressed in the book above cited, in the following words: “the master must also have the apprentice under liis own care and inspection, and cannot send him abroad, though under the pretence of improvement.”

But it is further argued for the plaintiff, that suppose the assignment to Crozier and transfer of the apprentices to him, accompanying the sale of plaintiff’s printing establishment, void; then it follows, that the plaintiff’s original rights remain, which rights entitling him to the custody of the persons of his apprentices, enable him to support this suit against the defendant Heiskell. The plaintiff’s right to support this suit is founded upon his rights and duties, as a trustee; and to execute his duty, it is necessary for him to have the custody oí the persons of the apprentices under his own inspection and care; the defendant therefore ought not to detain them, but ought to deliver them. All this would have been right, upon a proper discharge of the trust and duty on the part of the plaintiff. But in what situation has he placed himself? He has committed a breach of his trust by surrendering or transferring the persons of his apprentices to another man, and parting with the possession, against the obliga-ti on of his duty; and this by solemn contract, for valuable consideration, and he now comes into court, in the face of his breach of duty, in the face of his own contract to the contrary, and makes his claim. He cannot be heard. Let the judgment of the circuit court be affirmed.

Judgment affirmed.  