
    Clement Coffin versus Joseph Bassett.
    In covenant on an indenture of apprenticeship the defendant pleaded, that the plain tiff intended to remove to a distant State for the purpose of there carrying on his trade, and to carry the apprentice with him against the will of the apprentice and of the defendant, and that the plaintiff afterwards did actually remove tbilherj that if the apprentice had remained with him till he went and had refused to accompany him, he would have been abandoned by him 3 whereupon the apprentice, to avoid being carried out of the commonwealth and to provide against/ being deserted, left the plaintiff's service. The plaintiff replied, de injurib sub, fyc. Held, upon general demurrer, that the plea was bad, as alleging only an intention of the plaintiff to violate his covenants 3 and that the replication also was bad.
    In an action of covenant on an indenture of apprenticeship, the defendant pleaded, that the plaintiff, at the time when the apprentice left his service, which was alleged to have been on the 15th of October, intended within thirty days to remove out of this commonwealth to the Slate of Louisiana, for the purpose of there carrying on his trade of a housejoiner, and to cease to be an inhabitant of this commonwealth, and that he urged the apprentice to remove with him, and would have carried him with him against his will and against the will of the defendant; that the plaintiff, on the 1st of November, in pursuance of his intent, did remove to Louisiana, and cease to be an inhabitant of this commonwealth, and that if the apprentice had remained with him till his removal and had refused to accompany him, the plaintiff would have abandoned the apprentice without providing for his support and instruction, contrary to the duty and the covenants of the plaintiff; whereupon the apprentice, for the purpose of avoiding being carried out of this commonwealth, and to provide against desertion by the plaintiff and for his own support and instruction, left the plaintiff’s service, as well he might.
    The plaintiff replied, that the apprentice left his service de injuria sud propria absque tali causa. And to this there was a general demurrer.
    
      E. H. Mills,
    in support of the demurrer, contended that this general replication was not proper in an action upon s. contract ; that in other cases it was proper, only where the defendant pleads an excuse, not where he pleads a justification, as in the present instance ; and that issue should have been taken on some one material point. 1 Chit. Pl. (1st ed.) 577, et seq. ; Co. Lit. 126 a, 303 b ; Cockerill v. Armstrong, Willes, 99 ; Crogate's case, 8 Co. 66 ; Jones v. Kitchin, 1 Bos. & Pul. 76 ; Reeve’s Hist. 462 ; 2 Wms’s Saund. 295, note 1 ; Hyatt v. Wood, 4 Johns. R. 150 ; Lytle v. Lee, 5 Johns. R. 112 ; Plumb v. M'Crea, 12 Johns. R. 491.
    The plea itself is good, and it arises out of the very nature of such a contract. The remedies given by St. 1794, c. 64, upon which this indenture is founded, are such as cannot be enforced in any other State than our own. By the second section it is made the right and the duty of parents &c., to inquire into the usage of apprentices, and to defend them from cruelties or breach of covenant of their masters. How could this be done, if the apprentice were carried into Louisiana ? [Parker C. J. Suppose the master could not carry him out of the commonwealth, yet a mere intent, without an overt act, would not justify the apprentice in leaving his service.] The plaintiff did actually go, and it is directly averred that he would have carried the apprentice with him, and this is admitted by the pleadings. Was the apprentice obliged to wait until he should be carried out of the common wealth, before he could resort to his remedy ? There is no question but an apprentice might be bound in such a manner, as to be obliged to go with his master out of the commonwealth, but such obligation ought to appear either by an express contract or from the nature of the occupation. The doctrine that, in general, a master cannot carry an apprentice out of the commonwealth, is recognised by this Court, in Hall v. Gardner, 1 Mass. R. 172, and Davis v. Coburn, 8 Mass. R. 299.
    
      Bates and J. H. Lyman for the plaintiff.
    This replication is not inconsistent with the law as laid down in Crogate’s case. The plea contains an excuse merely, consisting entirely of matter of fact; it does not state any distinct material fact in justification, that could be traversed, but sets forth several facts, all tending to excuse ; and in such case de injuria fyc. is a proper replication. Com. Dig. Pleader, F, 18, 19 ; 3 Wentw. Pl. 423, 424, referred to in 2 Chit. Pl. 627. But if the replication is bad, it is bad in form only, and the demurrer ought to have been special. Bolton v. The Bishop of Carlisle, 2 H. Bl. 262 ; Com. Dig. Pleader, F, 24. There was a special demurrer in Jones v. Kitchin, and Plumb v. M'Crea.
    
    But the plea is obviously bad. It is incongruous, in saying that the plaintiff would have carried the apprentice out of the commonwealth, and that he would have abandoned him within the commonwealth. If it would be a violation of the contract, for the plaintiff to carry the apprentice with him out of the commonwealth, (which may however be doubted ; 3 Vin. Abr. Apprentice, B ; Reeve’s Dom. Rel. 345 ;) the contract would not be thereby dissolved ; Stephenson v. Houlditch, 2 Vern. 492; Rex v. Inhabitants of Brampton, Cald. 14 ;  but the defendant would have his remedy on the covenants ; or he might guard against the injury by resorting to the tribunal appointed by the statute to act in such cases. At any rate, the apprentice had no right .to leave the plaintiff until the contract had been violated. The plaintiff had a right to resolve to go to Louisiana and to ask the apprentice to go with him ; and the apprentice was bound to remain in his service until he should actually remove out of the commonwealth. In pleading an excuse for non-performance the party should show that he did every thing that he was obliged to do. Wynne v. Fellows, 1 Show. 335.
    The opinion of the Court was read at April term 1824, m Hampshire, as drawn up by
    
      
       See Winstone v. Linn, 2 Dowl. & Ryl. 465. Reporter.
      
    
   Parker C. J.

[After stating the pleadings.] This replication is undoubtedly bad upon general demurrer, for it is allowed only in cases of personal injury, where some excuse is set up by the defendant in his plea, and in some cases of trespass, where also a mere excuse for the ac,t done is set forth in the plea without any claim of title. So are all the authorities. See 1 Chit. Pl. 578 ; 1 Bos. & Pul. 76 ; 4 Johns. R. 150 ; 5 Johns. R. 112 ; 12 Johns. R. 491 ; Com. Dig. Pleader, F, 18, 19.

But the plea is also bad, for it alleges no act of the plaintiff which amounts to a breach of any covenant on his part, but merely an intention to do an act which might have that effect. This intention may never have been executed, and if it had been attempted, relief was open to the apprentice on habeas corpus, or some other process, or even by a forcible escape from the custody of the master, if he had seized the apprentice and confined him with a view to carry him out of the commonwealth ; for we think it very clear from all the authorities, that an indenture of apprenticeship gives no authority to the master to transport the apprentice beyond the jurisdiction within which the contract was entered into, and with reference to the laws of which the parties contracted. Cases have been decided in this commonwealth which recognise this restriction upon the rights of masters. Hall v. Gardner, 1 Mass. R. 172 ; Davis v. Coburn, 8 Mass. R. 299 ; Commonwealth v. Hamilton, 6 Mass. R. 273. Such also is the law of England ; Coventry v. Woodhall, Hob. 134 ; and of Pennsylvania ; Commonwealth v. Edwards, 6 Binney, 202. So that had the plea alleged an actual attempt to violate the personal liberty of the apprentice, as the cause of his leaving his master’s service, it would have been good ; so, perhaps, if it had been averred that the plaintiff had left the commonwealth with intention to remain beyond its jurisdiction and had continued absent down to the commencement of the suit, such facts would have made a good defence; but for aught which appears in the plea before us, the absence of the plain tiff may have been but temporary, without intention finally to abandon his business here, and there is shown no attempt to take the apprentice with him ; an elopement therefore cannot be justified, though it may be a question for the jury on the subject of damages, how much should be deducted on account of the absence of the master under circumstances which gave him no right to control the person or the services of the apprentice.

Plea adjudged bad. 
      
      
        Randall v. Rotch, 12 Pick. 107.
     