
    Commissioners of the Orphan House of the City of Charleston v. Wm. Magill.
    An assignment by Orphan House Commissioners, of the indentures of an apprentice, did not imply a covenant that the apprentice should perform the stipulations contained in them.
    And to an action by the Commissioners against the assignee, upon a covenant by the latter, to pay certain liquidated damages, in case of dismissing the apprentice before the expiration of her term, the assignee shall not set up in defence the apprentice’s non-performance of her stipulations in the indentures.
    Before Gantt, J., at Georgetown, Fall Term, 1839.
    Sum. pro. against the assignee of the indentures of an apprentice, Ann Delany, who had bound herself “as an apprentice for education,” to the plaintiffs, “to dwell and continue in the said Orphan House, &c. — and from thence to dwell, &c., with such person as the said indentures might be transferred to, until, &c. And during the term aforesaid, the said Ann Delany to demean herself agreeably to the rules, &c., until the indentures are transferred; and, from thence, the person to whom such transfer is made, well and faithfully to serve, &c. — in all things well and faithfully to demean herself, &c.”
    To the defendant -were assigned “ the foregoing indentures, and all right, title, duty and term of her service” of the plaintiffs in and to the said Ann. Besides the usual stipulations in favor of the apprentice, there was a covenant by the assignee, to pay “ the sum of sixty dollars, as liquidated damages,” in case of her dismissal before the end of the term. ,
    This action was brought for the sixty dollars, and was tried before a jury, The apprentice appeared to have been dismissed on account of immoral behavior; and the Court said, “ that this was a good defence, and that the Commissioners, by assigning the indentures, covenanted for the performance by the apprentice, of all the stipulations contained in them, and that on this depended the plaintiff’s right to recover.” Verdict for defendant.
    The plaintiffs appealed for error in the Judge’s charge, and on other grounds, the consideration of which was superseded by the decision of the Court upon this.
   Chiria, per Richardson, J.

Dr. Magill bound himself to pay sixty dollars, in case he should dismiss his apprentice, or return her before the end of her term, to the Commissioners of the Orphan House, without her consent. The defence admits that the Doctor did dismiss his apprentice, but did so because she was disobedient and vicious, and urges that the dismissal was therefore justifiable. The rejoinder to such defence is, that no matter' what was the vicious conduct of the apprentice, Dr. Magill undertook, as master, to restrain or correct her misconduct, had lawful authority to do so, and if he failed of success, and dismissed her on that account, such dismissal presents an infraction of the contract — the reason why a certain sum in, the nature of liquidated damages was fixed and agreed upon in lieu of uncertain damages, was, to prevent dispute in that very event.

The question between the parties is upon the strict legal construction of a contract of small amount, but involving important principles. If Dr. Magill had dismissed his apprentice even cruelly and wantonly, he would have had to pay but sixty dollars. And so on the other hand, if he failed to restrain her misbehaviour, and dismissed her for misconduct, however great, his penalty is the same. His literal covenant is to pay that sum, if she should be dismissed. But turn to the cause, motive, or end of the whole contract. The consideration for which Dr. Magill laid himself under such a penalty to the Commissioners of the Orphan House, was not that the apprentice should conduct herself orderly; — that depended upon the apprentice herself, and was made the duty of the Doctor so to require, from the moment he was made master of one short of the age of legal discretion. The true consideration evidently was, that the Doctor was made the master of the apprentice, with all' the rights, duties and advantages of a master, according to the laws of the State. Such assuredly was the warranty on the part of the Commissioners; in consideration of which warranty of the rights of a master, the Doctor laid himself under the penalty if he should dismiss or return the apprentice before the end of her term. It is the duty of every master to persevere, and strive to correct and improve, his apprentice, throughout the-whole term of service. When the Doctor yielded to her perverseness, and dismissed his froward pupil, he himself failed in his primary undertaking, and disappointed the'end and motive of the Commissioners, and he cannot convert his own failure, whatever was the immoral conduct of his apprentice, into a legal defence against his. covenant to pay a forfeit stipulated and agreed upon, in the event of his dismissing the apprentice at all. It follows then, rationally and satisfactorily, as well as from the letter of his contract to pay certain liquidated damages, that the Doctor entered into an independent covenant with the Commissioners, in no way bottomed upon any warranty for the good behavior of Ann Delany — but in consideration of the assignment made to him of the rights of a master. This assignment and the Doctor’s covenant to pay sixty dollars in a certain event, were reciprocal considerations, each for the other.

If it be asked, is there no way for the master of a vicious apprentice to get rid of his contrrct, the answer is found in the Act of 740 and that of 1789, (P. L. p. 176 and 478.) These Acts provide that either-the master or his apprentice may make complaint before two Justices of the Peace or a Judge, who may discharge the apprentice for sufficient cause. This has been adjudged in the case of Belcher and wife ads. Commissioners of the Orphan House, (2 M’Cord P. 24.) But to do so, requires a judicial trial, in which both parties are to be heard, and neither party is competent to dissolve the contract upon his own mere motion. A new trial is therefore granted

Bailey, for the motion;

Harllee, contra.

Earle and O’Neall, JJ., concurred.

Gantt, J.,

dissenting. In this case, the construction which was given to the covenant in question, was according to what appeared to be the obvious intention of the parties, as collected from the whole' context of the several instruments before me. On the part of the plaintiffs, it became necessary to introduce certain letters of the defendant, Dr. Magill, to show that he had returned the apprentice to the Orphan House, contrary to the covenant entered into by him. In these letters, the defendant states particularly the reasons why he could no longer consent that she should remain with him, and they go to show very clearly that the apprentice had violated, on her part, the stipulations in the articles of apprenticeship entered into by her with the Commissioners, and assigned by them to Dr. Magill. Had there been the slightest evidence to show that the defendant had been guilty of any neglect in the discharge of his duty as the master of the apprentice, I should have promptly decreed against him, and from the possibility that this might have been the case, I thought it best to submit the matter to the jury, who better knew the parties than the presiding judge, and could therefore better adjudge respecting the credit which should attach to the evidence offered. I thought that if the defendant was not in fault, but had used the necessary endeavors to fulfil his duty towards the apprentice, and that the improper conduct of the apprentice had alone put it out of his power, there was no reason why the plaintiffs should recover thé stipulated damages. This opinion was fully expressed to the jury, who found for the defendant, and I can see no reason why the verdict should be set aside. 
      
       3 Stat, 544, made perpetual in 1783 ; 4 Stat. 540. An.
      
     
      
       5 Stat. 137 — an Act concerning Estrays, unconnected with tliis case. An.
      
     