
    John F. Holbrook versus Joseph Bullard et ux.
    
    An indenture of apprenticeship states that a mother, as guardian by nature of her son, who was then over fourteen years of age, binds him as an apprentice to the plaintiff, and declares that “ the apprentice his master faithfully shall serve,” &c enumerating the duties usually required of apprentices by their indentures. Then follows a covenant by the plaintiff to instruct and support the apprentice. The indenture concludes, “ In testimony whereof the parties have to this indenture set their hands and seals,” and it is signed and sealed by the plaintiff, the mother and the apprentice. It was hddy that the mother was not liable to an action of covenant for a breach of duty by the apprentice, for the language of the indenture was to be considered as only pointing out the duties of the apprentice, and not as a covenant on the part of the mother.
    This was an action of covenant broken, upon an indenture of apprenticeship, made August 4th, 1826, by which Betsey Bullard, one of the defendants, who was then a widow, as guardian by nature of her son Asa Strong, binds him, with his consent, to the plaintiff, to learn the trade of cabinet-making, and to serve as an apprentice until 1830, when he will arrive at the age of twenty-one. .The indenture then declares, that “ the said apprentice his said master well and faithfully shall serve,” &c. enumerating the duties usually required of apprentices by their indentures. The plaintiff then covenants to instruct and maintain the apprentice and to pay him $ 30 a year, so long as he shall continue to serve as an apprentice. The indenture then concludes, “ In testimony whereof, the said parties have to this, and one other indenture of the same tenor and date, interchangeably set their hands and seals,” &c. ; and it was signed and sealed by the. plaintiff, Betsey Bullard and the apprentice.
    The breach of covenant alleged was, that the apprentice did not well and faithfully serve the plaintiff, but had absented himself without cause from the plaintiff’s service. The defendants, after oyer, filed ten pleas, to the seventh and eighth of which the plaintiff demurred. As the decision turned upon the sufficiency of the declaration, it is unnecessary to state them.
    
      G. Bliss, for the. defendants.
    We go behind the pleas demurred to, and contend that the declaration is defective. The indenture contains no covenant by which the mother binds herself, but merely a statement of the duties of the apprentice. From the conclusion of the indenture, it is apparent, that she did not intend to make any covenant. It is usual to insert a clause of this kind in indentures, — “ For the true performance of the several covenants, &c. the said parties do bind themselves,” &c.; but here this was omitted. This was a binding strictly under St. 1794, c. 64, § 1, for at common law the mother, as guardian by nature, cannot bind her son if he is over fourteen years of age ; Rex v. Arnesby, 3 Barn. & Ald. 584 ; and the mother signed the indenture, merely in order to comply with the provisions of that statute. Branch v. Ewington, 2 Doug. 519, note ; 2 Petersdorff’s Abr. 35 ; Blunt v. Melchor, 2 Mass. R. 228 ; Ackley v. Hoskins, 14 Johns. R. 374.
    
      
      Oct. 2<A
    
      
      Willard and W. Bliss, for the plaintiff,
    cited Sumner v. Williams, 8 Mass. R. 162 ; Mead v. Billings, 10 Johns. R. 99 ; Hammond on Parties to Actions, 52 ; 3 Dane’s Abr. 588, 593 ; Cuming v. Hill, 3 Barn. & Ald. 59 ; Whitley v. Loftus, 8 Mod. 190 ; Gylbert v. Fletcher, Cro. Car. 179 ; Bull v. Follet, 5 Cowen, 170; Jac. Law. Dict. Apprentice.
    
   Wilde J.

afterward drew up the opinion of the Court. Whatever weight there may be in the objections made to the seventh and eighth pleas, considered by themselves, they are nevertheless unavailing, because upon the construction we give to the indenture between the parties, there are substantial objections to the declaration, which are insuperable'.

By the statute of 1794, c. 64, it is provided, that “ all minors of the age of fourteen years or upwards may be bound by deed, as apprentices or servants, by their father, and in case of his decease, by their mother.” Under this clause of the statute the defendant, Betsey Bullard, after the death of her first husband, was authorized to bind out her minor son as an apprentice, and it was for this purpose that she executed the deed declared on. Doubtless she was at liberty to superadd personal covenants, which might bind her ; but the' question is, whether there are any such covenants contained in the deed. No express words of covenant are used on her part; but the language of the indenture is such as may be considered as amounting to a covenant for the faithful services of the apprentice, or only as pointing out and declaring his duties ; and considering the relative situation of the parties, and the object of the contract, we are of opinion that the latter is the true construction. This construction is fully supported by the cases of Blunt v. Melcher, 2 Mass. R. 228, and Ackley v. Hoskins, 14 Johns. R. 374, which are not distinguishable, in any material circumstance, from the case at bar. It matters not, in regard to the construction of the language of the deed in question, whether the minor undertakes to bind himself with the consent of his parent or guardian, as was done in those cases ; or is bound by his parent, as in the present case. If this difference in the form of the indenture has any bearing, the binding by the parent according to the statute, which provides a remedy for the master in case the apprentice absconds or misbehaves himself, would seem the most favorable to the construction we have adopted.

The cases cited in which a different construction was given to indentures of apprenticeship, are distinguished from those already noticed, by an .additional clause, by which the parties expressly bind themselves to the performance of all the stipulations in the indenture. This distinction seems to reconcile all the cases.

Seventh and eighth pleas adjudged good. 
      
       See Revised Stat. c. 78, § 4.
     
      
      
        See Sackett v. Johnson, 3 Blackford, 61; Pond v. Curtis, 7 Wendell, 45.
     