
    LYON against WHITMORE.
    OH CERTIORARI.
    This action was brought before the justice, by Whitmore against Lyon, on a state of demand in substance as follows: — ■
    That on the first day of October, 1807, the defendant agreed and contracted with the plaintiff, that the defendant’s son Isaac, about 17 years of age, should stay with, and work for the plaintiff for three years, next ensuing; during which time the plaintiff agreed to teach the said Isaac, and employ him in and about the trade of a blacksmith; and also to pay to the defendant for his services, one shilling per day during the term, Sundays and holidays excepted; and the plaintiff avers that on his part, he has performed and kept his contract and agreement with the defendant, and still is ready so to do; yet the said defendant did, on the 10th day of August, 1810, counsel, persuade, entice, aid or assist the said apprentice to absent himself from the service of the plaintiff, whereby an action accrued to the plaintiff, to have and demand ef the said defendant, the sum of thirty dollars; and the plaintiff demands of the defendant the further sum of thirty dollars, for that whereas the defendant, from and after the said [f] 10th day of April, 1810, did entertain and harbor the said apprentice for the space of thirty days, knowing him to be the apprentice of the plaintiff as aforesaid, whereby an action hath accrued to the plaintiff to have and demand of the defendants, the further sum of thirty dollars, which several sums amount to the sum of sixty dollars, for which, the plaintiff brings suit, &c.
    
      [620] On this state of demand there was a trial, verdict and judgment in favor of the plaintiff below, for $60.
    To this judgment it was objected, that the action was misconceived ; that no action could be maintained for a penalty under this state of the case, much less for two.
   Pennington, J.

The action below Avas an action of debt, brought by Whitmore against Lyon, for two penalties under the apprentice act; one for counselling, aiding or enticing the apprentice from his master’s service; and another for harboring him after he was so enticed away. The acts disclosed by the state of demand, are, that Lyon agreed with Whitmore, that his son, Avho was about seventeen years of age, should work with Whitmore, for three years, for wages, to be paid to the father; that Whitmore was to teach the boy and employ him in and about the trade of a blaeksmith. I am not satisfied that this boy could with propriety be considered an apprentice. Apprentice is defined to be a young person bound by indenture, to a tradesman or artificer, who, upon certain covenants, is to teach him his mystery or trade: he certainly Avas not an apprentice under the act of Assembly, and I apprehend that the penalty created by the act is only applicable to an apprentice bound in conformity to the act respecting apprentices, or in conformity to the poor act, as it respects the binding out poor children. If, hoAvever, this agreement of the father is to be considered as creating an apprenticeship at common laAV, Avhich I very much doubt, [*] yet the act respecting apprentices, declares all promises and bargains for having, taking, or keeping any apprentice, void, so far as it respects the apprentice himself, not made in conformity to the act; that is, the boy is not an apprentice, but the father, notwithstanding, is bound by his OAim contract. If the boy Avas not an apprentice, the father could not have enticed him away as an apprentice, nor harbored him as such. The plaintiff below, in my opinion, has mistaken his remedy; he should have sued the father on his contract; for which reason, I think the judgment ought to be reversed.

Chetwood, for plaintiff.

Kirkpatrick, C. J.

The state of the case gives no ground of action. This was not an apprenticeship within the act, and therefore, the plaintiff has no claim to the penalty.

Ross ell, J. — Was of the same opinion.

Judgment reversed.

Cited in Fisher v. Lunger, 4 Vr. 100.  