
    John Davis versus Leonard Coburn.
    An apprentice is not assignable.
    This action, which was case upon contract, came before the Court on the following facts agreed by the parties.
    “ The parties agree that on the 20th of July, 1809, the plaintiff was the master of an apprentice, Stephen Davis, who was, by indenture duly made and executed by the father of the said apprentice, bound to serve the plaintiff * for the term of three years thereafter, when he would arrive at the age of twenty-one years ; and that the said Coburn made the following agreement, viz.: —
    “ Lynn, July 20th, 1809. Articles of agreement made this 20th of July, 1809, between John Davis, of Bradford, in the county of Hillsborough, and state of New Hampshire, on the one part, and Leonard Cobum, of Lynn, in the county of Essex, and state of Massachusetts, gentleman, on the other part, agreeth to sell the remainder part of the time of Stephen Davis, an indented apprentice, to me, the said Coburn, for the term of three years from the date hereof; and I, the said John, do, by these presents, agree to relinquish all claim to the said Stephen Davis during said term of apprenticeship, at the said Coburn’s own risk of sickness or absconding; and the said Cobum, on his part, agreeth to pay unto the said John Davis one hundred and fifty dollars, in form and manner following: first, fifty dollars on demand ; secondly, fifty dollars in one year from the date hereof and fifty more at the expiration of said apprenticeship; the said Coburn, on his part, further agreeth to clothe said apprentice with good and decent every-day clothing, and to school said apprentice one month in every year, and to equip said apprentice for training, and to teach or instruct, or cause him to be instructed in his art or trade of carpenter and joiner’s work, according to his best skill and knowledge.”
    On the 16th of October, 1809, said Coburn, in pursuance of said agreement, paid to the plaintiff fifty dollars ; and the said Stephen, on the 7th day of July, 1810, absconded from the service of the said Cobum.
    
    “ And the parties further agree, that the indenture before mentioned shall be considered as part of the case, that the Court may take notice of any statute of the state of New Hampshire on the subject of apprenticeship ; and finally that if the Court, upon the foregoing facts, shall be of opinion that the plaintiff might maintain any action for * the recovery of damages, the defendant shall be defaulted, and thereupon damages shall be assessed for the plaintiff; but if the Court shall be of opinion that no action can be maintained therefor, the plaintiff shall become nonsuit.”
    
      Story for the plaintiff.
    This was a good and valid agreement between the parties, made upon sufficient consideration. The defendant was to have the services of the apprentice, and in lieu of them the plaintiff was to receive a sum of money. But admitting that no benefit was to accrue to the defendant, it is a sufficient consideration that the plaintiff was to suffer a detriment, viz., the actual loss of the earnings and services of his apprentice; and a slight detriment, labor, or injury thrown on the party, is sufficient to support an assumpsit. 
       The contract in this case was executed, and a benefit resulted to the defendant in the services of the minor ; and the contract cannot be apportioned.
    Although the case of Hall & Al. vs. Gardner Al. 
       seems to have decided that the binding of an apprentice is a mere personal trust, and cannot be transferred or assigned, yet the binding in this case having been in New Hampshire, its effect and the rights and powers of parties under it must be governed by the laws of that state ; and we do not admit that by those laws the assign - ment of an apprentice is either illegal or void. And even in this commonwealth such an assignment, although it may not operate to convey an interest, is not illegal, or a contravention of any statute provision. Supposing, therefore, this instrument to be an assignment, although it cannot have its operation as such, yet it is by no means without effect; it operates as an agreement for the service of the apprentice, which may be legally made by his master
    In Rex vs. St. George Hanover Square 
       it was held that a master might hire out his apprentice by parole contract, and thereby the apprentice might gain a settlement, as being a regular and lawful servant. So in Rex vs. Stoke Fleming, 
       where an apprentice was assigned, the * court held that though the assignment could not strictly be made, yet the service, being by the assent of the master, would be good. The same principle was held in Rex vs. Clapham, 
       in Rex vs. Tavistock, 
       and in Rex vs. Christowe. 
       In Castor vs. Aicles, 
       it is distinctly held that although an apprentice be not assignable, yet the assignment amounts to a consent that the minor shall serve the assignee, which is good in law; “ so that the assignment is good by way of covenant, though it be not an assignment to pass an interest.”
    But, strictly speaking, this is not an assignment, but a mere agreement for the service of the minor. He is to learn the same trade, with as good advantages, and manifestly upon terms as much for his benefit as those made with the master; and the minor appears for a year to have consented to it. The hiring was lawful; and unless it is established that at all events an apprentice is to live exclusively with his master, and cannot be in the service of another by his consent, the present contract must be supported ; and cases may easily be put, in which such a principle would work manifest injustice.
    
      Pickering, for the defendant,
    read a statute of the state of New Hampshire, passed December 28th, 1805, the first section of which requires the consent of the minor to every indenture. This was wanting in the- original indenture in the case at bar, and thence it was argued that the original binding was a mere nullity. By the last section of the same statute, it is provided that no apprentice shall be held by his indentures after the death of his master; whence it may be inferred that it is considered as against sound policy in New Hampshire to permit the assignment of an apprentice, and that it is therefore void.
    In Baxter vs. Burfield 
       it was held that an executrix was not entitled to the services of an apprentice bound to her testator ; and the reasons given by the court apply with equal force to the case of an assignment. “ The binding was to the man, to learn his art, and serve him, without * any mention of executors. And as the words are confined, so is the nature of the contract; for it is fiduciary, and the lad is bound from a personal knowledge of the integrity and ability of the master.” That an apprentice was not assignable by his master at common law appears from the language of the statute of 32 Geo. 3, mentioned in a note to the case of Baxter vs. Burfield, in the later editions of Strange. And in the case of Hall & Al. vs. Gardner & Al., of which the plaintiff’s counsel is aware, the court were unanimous and clear that the binding was to the master personally ; it was a mere personal trust, and could not be transferred; the assignment was therefore a nullity.
    The plaintiff might at any time have reclaimed his apprentice, and this parole agreement could not have been pleaded in bar of the original indenture ; so that in fact there was no legal consideration for the agreement; and in point of equity there is certainly no claim, since the plaintiff received in the first instalment a full .consideration for the time that the minor remained in the defendant’s service.
    The cases cited for the plaintiff are all cases of settlement, and relate wholly to that subject; but it is one thing for an apprentice to gain a settlement by service in a parish, and quite another thing for him to be so bound as that the master or his assigns can lawfully claim his services.
    
      Story, in reply.
    The minor’s consent is not required by the statute, except where the binding is by the mother or guardian. Here the minor considered himself bound, and acceded to the transfer. So also did his master, and the defendant likewise. Suppose a master unable from sickness to teach his apprentice the trade he professes ; will it be said that he is not still bound to cause h'm to be taught? So if the master be permanently disabled.— The plaintiff could never have retaken the minor; he must be bound by his contract. And he is equitably entitled to recover * in this action, for he agreed to take the risk of desertion upon himself. The plaintiff relinquished his claim to the services of the apprentice, and was actually deprived of them, in consideration of the defendant’s contract to pay him a sum of money, which he now claims, and to which he holds himself entitled in equity as well as in law.
    
      
      
        Com. Dig. tit. Action upon the Case upon Assumpsit, G. 11.
    
    
      
       1 Mass. Rep 172.
    
    
      
      
        Burr. Settlement Cases, 12.
    
    
      
      
        Ibid. 248.
    
    
      
      
        Ibid. 266.
    
    
      
      
        Ibid. 578. — W. Black. Rep. 635, S. C.
      
    
    
      
       11 East. Rep. 95.
    
    
      
       1 Salk 68 —1 L. Raym. 683, S. C.
      
    
    
      
       Strange, 1266.
    
   The action stood continued nisi for advisement, and at the following March term in Suffolk, the opinion of the Court was delivered as follows by

Sedgwick, J.

On the 30th of March, 1808, James Davis, by a deed of indenture with John Davis, bound his son Stephen Davis to John, from that time until he should arrive at the age of twenty one years.

On the 20th of July, 1809, John Davis, the master, who is the plaintiff in this action, entered into articles of agreement, but not sealed, with the defendant, whereby the plaintiff undertook to sell to the defendant the remaining time of the apprentice, being then three years.

In the indenture of apprenticeship, the plaintiff, among other covenants, undertook “ to use the utmost of his endeavors to teach, or cause to be taught and instructed, the said apprentice in the art and mystery of a house joiner, if the said apprentice be capable of learning with reasonable pains being taken.” In the articles of agreement entered into between the plaintiff and the defendant, the latter, among other things, undertook “ to teach or instruct or to cause the apprentice to be instructed in his art or trade of carpenter and joiner’s work.” The plaintiff relinquished all claim to the apprentice during the term of apprenticeship, at Cobum’s risk of sickness or absconding. In consideration of this, Coburn undertook to pay to .the plaintiff one hundred and fifty dollars by three equal instalments ; the first on demand, the second in one year, and the last at the expiration of the apprenticeship.

*The first payment was made soon after; and the apprentice absconded from Cobum on the 7th of July, 1810, that is, in thirteen days less than a year from the time of entering into the agreement; so that the defendant has actually paid, for the service performed by the apprentice, beyond the rate at which the value of his services was computed by the parties.

The general question is, whether the defendant is bound by his agreement to pay the remaining hundred dollars; — and as he assumed the- risk of the absconding of the apprentice, that question depends upon this, viz., whether there was a good and lawful consideration for the' undertaking of the defendant.

The original contract, by which Stephen Davis was bound by his father an apprentice to the plaintiff, was entered into in the state of New Hampshire; and I assume it as true, that, by the laws of that state, a father has a right to bind his son an apprentice, in the manner it was done in this case. If that is not true, there can be no pretence for maintaining this action; for it would be a gross violation of natural justice, moral obligation, and personal liberty, for a man, having no lawful authority, to sell a human being; and such a contract certainly could not be enforced in a court of justice. Supposing, then, that, by the indenture between the father and the plaintiff, this latter acquired a property in the services of the apprentice ; was it a property which he could assign to a stranger ?

That a father, during the minority of a child, should have a power to dispose of a requisite portion of his authority, for the purposes of education and instruction, is frequently important and necessary to the welfare of the child; but in doing this, a due regard to the interest of his child will render him cautious to what hands he confides the trust; and for this purpose a wise and prudent parent will -be as anxious about the moral qualities of the man, to whom he delegates his authority, as to his competency in other respects. But all his attention in this regard would be use- * less, if the master might immediately transfer or assign his authority to another; not merely within the limits of the state to which he belongs, but, as was the case here, into another independent jurisdiction. And if he could transfer him into Massachusetts, I see not why he might not have sent him to Georgia, or even to China. That a master should have such a legal authority would be monstrous; and if he have' it not, to exercise it is a violation of natural right, and immoral, and consequently can be no good consideration for the support of an action. But the decision of the question does not now depend upon reason alone. . It has long been determined by authority.

There is a solitary case, in which it has been determined that an action lay against executors on a covenant of apprenticeship entered into by the testator; but this was overruled and denied to be law in the case of Baxter vs. Burfield, cited at the bar. In the case of Bedell vs. Constable, in considering the statute of 12 Car. 2, c. 24, authorizing parents to appoint guardians for their children, it was decided that such a special guardian cannot assign the custody of the ward, by deed or will, to any other person; and the reason given is, because it is a personal trust, which can never be transferred, whether the appointment be by the act of law or of an individual. And it is there truly said, that “ a more near or tender trust cannot be, than the custody and education of a man’s child.” — In the case of Coventry and Woodhall, the action was brought on a deed, in which the defendant had covenanted, under a penalty, to instruct his apprentice in the art of surgery; and the breach assigned was, that he had sent him out of the realm to Bantam, in the East Indies. The defendant pleaded, that he had sent him out with expert surgeons, the better to learn the art. To this plea there was a demurrer, on which the plaintiff had judgment, because the trust was personal. In the -case of The King vs. The Inhabitants of Stockland, it is admitted that an apprentice ship is not assignable nor transmissible. And in the * case of Hall & Al. vs. Gardner & Al., also cited at the bar, this Court determined that an apprenticeship cannot be assigned, the master having amere personal trust. Many more authorities might be mentioned ; and it may be added that the principle is affirmed by many approved commentators, and, I believe, denied by none.

If an apprenticeship is not assignable, it follows that the transfer by the plaintiff to the defendant, in breach of the personal trust confided to him by the father, was a wrong inflicted on the apprentice, and did not confer on the defendant any authority nor any right to the services of the apprentice. It was, in fact, a mere act of unauthorized power; and admitting that in this the parties were in pari delicto, the maxim applies, Melior est conditio defendentis.

But the case of Castor vs. Aicles, which is reported by Salkeld and Lord Raymond, and some other cases, were cited in the argument, to prove that an apprentice bound to a master in one parish, and by him assigned to a man living in another, if he resides the requisite period of time with the latter, acquires a settlement in his parish, as having served an apprenticeship there. There are many cases to this effect. From them it was intended that it should be inferred, that such an assignment is not merely inoperative and void. I confess myself unable, after much consideration, to extract any consistent principle from those cases. There are several of them, which contain, to my mind, much loose and unintelligible declamation. It is not, however, necessary to énter into a minute discussion of them, as it is a sufficient answer to their intended application, to observe that they are irrelevant to any question presented by the case under consideration; their united authority, as to the point adjudged, going no further than to establish this position, — that a service de facto, in consequence of an assignment of an apprenticeship, will bring the pauper, who has so served, within the true intent and meaning of the acts of parliament, so as to give him a settlement where such service is performed,

Plaintiff nonsuit. 
      
      
        Lev. 177.
     
      
      
        Vaugh. 177.
     
      
      
        Hob. 134.
     
      
      
        Doug. 69.
     
      
       Strange, 10, Parishes of Holy Trinity and Shoreditch. — Ibid. 1001, Parishes of St. George's Square and St. James's, Westminster. — Ibid. 1115, The King vs. The In, habitants of East Bridgeford. — 1 W. Black. 635. — Doug. 69.
     
      
      
         [See Dickenson's Guide to Quarter Sessions, by Serj. TaJfourd, pp. 696—788, and cases there cited. — Ed.]
     