
    Oliver Powers et al., Overseers of the Poor &c., versus Samuel Ware. 
    
    
      Oct. 3d.
    
    In an action of covenant, upon an indenture of apprenticeship under St. 1793, c. 59, [see Revised Stat. c. 80, § 14, 15,] brought before the term of apprenticeship has expired, for a breach of the covenant to maintain the apprentice, damages are recoverable only to the date of the writ, and not to the end of the term.
    This was an action of covenant broken. The trial was upon the issue of non est factum.
    
    The contract was an indenture of apprenticeship, made pursuant to St. 1793, c. 59, [see Revised Stat. c. 80, § 14, 15,] and the only question was, what damages the jury should assess upon the defendant for the breach of his covenant to maintain the apprentice, who had become ill and disabled in-his limbs. The apprentice will become of age on the 15th of July, 1832. The defendant maintained him from 1817, when the indenture was made, until the autumn of 1822. The writ was dated the 15th of August, 1823. The plaintiffs claimed damages up to the end of the apprenticeship in 1832, and if they were entitled to recover to that extent, judgment was to be rendered for 400 dollars ; but if only to the time of the purchase of the writ, for 260 dollars.
    
      J. Davis and Men, for the plaintiffs.
    The St. 1793, c. 59, § 5, provides that the overseers may have remedy by action on the deed of apprenticeship, for recovery of damages for breaches of any of the covenants, which, when recovered, are to be disposed of for the benefit of the apprentice within the term, the remainder, if any, to be paid him at-the expiratian thereof; and that the apprentice shall have Lke remedy upon the deed, when his term is expired, for damages for the causes mentioned, other than such, if any, for which damages may have been recovered by the overseers, provided his action be commenced within two years after the expiration of the term. This expressly authorizes a suit to he brought by the overseers within the term, and damages to the time of its expiration ought to be recovered, the design of the statute being, that the town shall he indemnified for any expense it may he obliged to incur on the apprentice’s account, during the term, in consequence of the breach of the covenant. The breach here must be considered as continuing to the end of the term, and it cannot be objected that the defendant may yet take back the boy and perform the contract in future, for then it would follow that the boy must be kept in readiness to return until the term expires. The legislature could not have-intended that he should remain so long in idleness. The contract is at least so far vacated, as to justify binding him out anew. It is apprehended that no further action on this covenant can be brought by the overseers within the term, and any action commenced after it expires, must be in the name of the apprentice and for his exclusive benefit.
    Independently of the statute, the defendant is guilty of one entire wrong, and it is not for him to say that the damages shall stop at the date of the writ, because they cannot be accurately assessed for the subsequent period. He must take the consequences of his own fault. The case of Guthrie v. Pugsley, 12 Johns. R. 126, shows that the difficulty in assessing damages furnishes no objection to the plaintiff’s recovery.
    In Com. Dig. Damages, D, it is said, that when a new action may be brought for duties or demands arisen since the commencement of the depending suit, these shall not be included in the judgment. On the other hand, there are many cases of breach of contract where the damages are prospective in their character. It may he difficult to determine to which class this case belongs ; but either entire damages as for one continued wrong should be given, or a new action for the subsequent damages should be allowed,
    
      
      Oct. 4th.
    
    
      Hoar and Marcy, for the defendant,
    referred to Wyman v. Ballard, 12 Mass. R. 304; Hambleton v. Veere. 2 Saund. 169, and note; Ward v. Rich, 1 Ventr. 103.
    
      
       See Powers v. Ware, 2 Pick. 451.
    
   Per Curiam.

The cases are decisive, that by the common law the plaintiffs can recover damages only to the time of bringing the action, unless there be a distinction in this respect between covenant and tort. It seems to us however that no such distinction can exist; and there is one case of covenant cited in the note to Saunders, where this principle was applied. Whether another action can be maintained by the plaintiffs for a future breach of the same covenant, is immaterial to the present question. Then as to the statute, we do-not see any reason for thinking that the legislature meant to alter the common law rule of damages. And further, from the provision giving a right of action to the apprentice himself, it seems to be intended, that notwithstanding a judgment m favor of the overseers, the covenant shall continue in force. We certainly cannot look forward six years and give damages for a supposed continuance of the breach, when, for aught we know, the defendant may be ready to perform his covenant in future, and when, if the boy should die, the defendant would be discharged.

The judgment must be entered for the smaller sum, with interest to the present time. 
      
       See Leffingwell v. Elliott, 10 Pick. 204. In an action to recover damages for carrying on a particular business in violation of a contract between the parties, no damages can be assessed for any violation subsequent to the cora meneemsBt of the action. Pierce v. Woodward, 6 Pick. 206.
     