
    *Bullock v. Sebrell.
    July, 1835,
    Lewisburg.
    (Absent Cakeia, and CARR, J.)
    Action of Covenant — Indenture of Apprenticeship.— Covenant will not lie in the name of apprentice on indenture of apprenticeship entered into by the overseers of the poor without any previous order of court for binding out the apprentice: such indenture is not a statutory deed: and, therefore, covenant can only tie maintained on it in the name of the overseers who are parties to it.
    This was an action of covenant, in the circuit superiour court of Mason, on an indenture of apprenticeship entered into between the overseers of the poor and the defendant Sebrell, without any previous order of court, for binding the plaintiff Bullock apprentice, according to the statute 1 Rev. Code, ch. 108, f 25, p. 410. The action was brought by the apprentice himself against the master, and the declaration set out the indenture of apprenticeship, and alleged breaches of the covenants therein contained on the part of the master to be performed. The defendant demurred generally to the declaration ; and the court gave judgment for him, on the demurrer. The plaintiff applied to this court for a super-sedeas to the judgment; which was allowed. Eisher, for the plaintiff in error.
    Smith and Summers, for the defendant.
    
      
      See Ross v. Milne, 12 Leigh 204, and note.
      
    
   TUCKER, P.,

delivered the opinion of the court — That the judgment should be affirmed. Admitting, that, upon statutory bonds of a fiduciary character, an action cannot be maintained in the name of the fiduciary without a relator; and admitting that an action cannot be maintained upon an indenture of apprenticeship regularly entered into according to law, in the name of the overseers of the poor, but must be sued in the name of *the apprentice, Poindexter v. Wilton, 3 Manf. 183, yet, where the indenture is entered into by the overseers, without an order of court to bind the orphan, such indenture is not a statutory deed, and cannot be sued upon as such. It can only be sued upon according to the common law. Now, nothing is better settled, than that in the case of a deed inter partes, one who is not a party to it cannot sue on a covenant therein, though made for his benefit. Gilby v. Copley, 3 Lev. 138; 1 Chitt. Plead. 4. This action, therefore, was misconceived, since the indenture of apprenticeship was not entered into in pursuance of an order of the court having jurisdiction of the matter, which ought always to appear on the face of the indenture (see the form, Hening’s Justice 68), and the covenant being a common law deed, it could only be sued on in the name of the overseers of the poor who are parties to it.

Judgment affirmed.  