
    Houston vs. Turk.
    The recital of the age of an apprentice in an indenture of apprenticeship, does not operate as an estoppel; he may therefore prove, by parol evidence, that he arrived at full age before the time stated therein.
    The defendant was sued in covenant upon the following bond: “This indenture, made the 28th day of March, 1820, between James Turk, presiding justice of the court of pleas and quarter sessions of Blount county, and his successors, of the one part, and Thomas Turk of the same county, of the other part, witnesseth, that the said James Turk, pursuant to an order of said court, made the 28th day of March, doth put, place and bind unto the said Thomas Turk, one boy by the name of Peter Yount, now of the age of nine years, with the said Thomas Turk, to live and' conduct himself after the manner of an apprentice, until he shall attain the -age of twenty-one years: And the said Thomas Turk on his part, doth covenant, promise and agree to and with the said James Turk, that he will teach and instruct, or cause to be taught and instructed, the said Peter Yount, the farming business, and give him one years schooling, and at the expiration of his apprenticeship will give him one horse, saddle and bridle, with one hundred dollars, and two suits of clothes, one of which is to be a good fine suit; and that he will constantly find and provide for the said Peter Yount, during the term aforesaid, sufficient diet, washing, and wearing apparel. In witness whereof, &c.” The breaches assigned were, that the defendant did not school Yount, or furnish the horse and clothes, &c. The defendant, after craving oyer, and setting out the above indenture, pleaded, that he had kept and performed all his covenants by him to be kept and performed, until the -day of-, when said Peter Yount run off, and left his service before he arrived at the age of twenty-one years, &c. To this the plaintiff replied that he did not run off, or leave the defendant’s service, until after he had arrived at the age of twenty-one. Upon which issue was taken.
    It was proved upon the trial, that the plaintiff was bom on the 4th of April, 1810, and that he left the service of the defendant on the 4th of April, 1831. The evidence offered, to prove the age of Peter Yount, upon the trial, was objected to by defendant’s counsel, on the ground that the statement of his age in the indenture was conclusive evidence of that fact, and could not be controverted; and that consequently, his time could not be out until the 28th March, 1832, at which time, from the statement in the indenture, he would be of age. But the court overruled the objection, and admitted the evidence, to which exception was taken. The jury returned a verdict for the plaintiff for one hundred and sixty-seven dollars. A motion was made for a new trial, which was overruled by the court, and an appeal in the nature of a writ of error taken to this court.
    
      T. L. Williams and Churchwell for plaintiff in error. 1
    
    
      Jarnagin for defendant.
   Peck, J.

delivered the opinion of the court.

The insertion of the age of the apprentice in the indenture is merely recitation; it is not of the essence of the contract. The infant, who has, in this case, done no act himself, cannot be bound or estopped by the simple circumstance that his age, at the date of the indenture, happened to be stated at nine years.

The contract was, that the apprentice should serve until he was twenty-one years old. This must have been the understanding of all the parties. If mistake in the recital of the age occurred, the infant is not to be prejudiced by it. Every master taking an apprentice is put upon his enquiry touching the age of the apprentice. I-Ie is supposed therefore not to be deceived.

The evidence, though at variance with the recital, is consistent with the contract to serve until the apprentice arrived at the age of twenty-one.

Judgment affirmed.  