
    Dunten vers. Richards.
    1763.
    A Guardian who has executed his Ward’s Indentures of Apprenticeship has no Power to release the Matter from his Covenant of Payment to the Ward, in Settlement of a Claim against himself for Deceit, grounded on the Ward’s alledged Incapacity of performing his Covenants of Service.
    
      (From Cambridge.)
    
    PLAINTIFF was an Apprentice bound by his Guardian to the Defendant, who covenanted among other Things to pay the Plaintiff £80 () at the Expiration of the Time of his Service. This Action was Covenant broken. Oyer of the Indenture, upon which Defendant pleads that Plaintiff was not capable of serving him as he covenanted, and that in Consideration thereof the Guardian had released the Payment of the £80. The Question was, whether the Guardian had Authority to make such Release.
    
      It was said by the Plaintiff that Guardians have no Right to release or give Discharge but for Sums received. Moore, 852, White vs. Hall.
    
    On the other Hand, the Guardian was a Party by their own shewing, and released no other Contract than he made himself.
    
      
      (1) The declaration alleged that the plaintiff bound himself with the consent of the guardian, and that the defendant covenanted to dismiss him at the end of the term “with two suits of apparell, one for the Sabbath and one for everyday, and to give him eighty pounds in bills of public credit of the old tenor, or the value thereof in such money as shall then be current,” which value was alleged to have been £10 13s. 4d. The plea set forth that the defendant was deceived and imposed upon by the guardian in binding the minor, whom he found deficient in understanding, and not capable of learning or serving him, wherefore he insilled that the apprentice should be taken back, and, after much dispute and controversy, it was finally agreed that the mailer should release all demands on account of the imposition, and that the guardian should release the £80 as aforesaid, which was accordingly done. To this plea there was a “replication in writing, as on file, concluding to the country,” and a rejoinder, after which the case was sent to a jury, who found for the plaintiff “three pounds money damage and colls.” The case was continued for argument on the special plea, and judgment was finally entered for the full amount of £10 13s. 4d. It would seem that this argument must have been on a motion for judgment non obstante veredicto, but as all the Middlesex files of court for 1763 are missing, no information can be obtained except from the record.
    
   Court were unanimously of Opinion that the Guardian had no Right to Release. () 
      
      (2) From the pleadings in this case it would seem that there was no attempt to affect the guardian with any liability on the covenants of the indenture, but that the mailer’s claim was on the ground of deception and imposition in inducing him to enter into it. See Blunt v. Melcher, 2 Mass. 228. In that case it was held, that where a ward binds himself with the assent of his guardian, the words describing his duties are not the covenants of the guardian, though he signs and seals the indenture. But in an indenture between father, son, and mailer, under 5 Eliz. c. 4, the father is answerable in covenant for what is to be performed by the son. Com. Dig. Covenant, A 2. Doug. 518. 8 Mod. 190. 3 Dane Ab. 588. Whether a father or guardian liable on a broken covenant for service would have any power to release the mailer from a covenant beneficial to the minor, is not here decided. It is a general rule that contracts beneficial to the ward cannot be avoided by the guardian. See 13 Mass. 240.
     