
    * Edmund M. Blunt versus John Melcher.
    in an indenture of apprenticeship made by the master, the apprentice, and the guardian of tire apprentice, the covenants that “ the apprentice shall faithfully serve his master,” &c., are not the covenants of the guardian.
    The declaration in this case was in covenant broken, for that, by a certain deed, indented and made on the 23d day of July, A. D. 1802, between the said John, on the one part, George F. Williams, a minor, of the second-part, and the plaintiff, of the third part, sealed with the respective seals of the said parties, and in Court to be produced, in consideration of certain covenants of the plaintiff therein contained, and on his part to be performed, and in consideration that the said Williams did, in and by said deed, bind himself as an apprentice to the plaintiff, to be taught the art and mystery of a printer, the said John did covenant with the plaintiff that the said Williams should well and faithfully serve the plaintiff as his apprentice for the term of five years from the 21st day of April, then last past, and should not, during that term, absent himself from the plain tiff’s service by day or night; and the plaintiff avers that the said Williams, on the 1st day of February, then last past, left the plaintiff’s service and absconded, and absented himself from him, the plaintiff, and yet wholly keeps himself away from the plaintiff and his service; whereby the plaintiff hath been deprived of the service and labors of his said apprentice, and has been obliged to expend large sums of money, &c., and so the said John Melcher his covenants aforesaid hath not kept, &c.
    The defendant prays oyer of the deed declared on, and it is read to him in these words, viz.: —
    “ This indenture witnesscth that G. F. Williams, of N., in the county of R., and state of New Hampshire, a minor, under the guardianship of John Melcher, of P., in the same county, hath put himself, and by these presents doth voluntarily, and of his own free will and accord, and with the consent of his said guardian, put and bind himself apprentice to Edmund M. Blunt, of Newburyport, &c., printer, to learn his art, trade, or mystery, and with him, the said E. M. B., after the manner of an apprentice, to serve from the 21st day of April, 1802, for and during the term of five years next ensuing, to be complete and ended. During all which [ * 229 ] time or term, the said apprentice his said * master well and faithfully shall serve ; from the service of his said master he shall not absent himself, &c. (Here follow othet covenants usual in instruments of this kind, but not material m me present cause ; also, covenants on the part of the master, —and the indenture concludes:) In testimony whereof, the said parties have to these indentures interchangeably set their hands and seals, this 23d day of July, A. D. 1802.”
    Whereupon the defendant demurs generally, and the plaintiff joins in demurrer
    
      Livermore, in support of the demurrer,
    contended that this deed did not contain any covenant on the part of Melcher. Had it concluded, as in the case of Branch vs. Ewington, 
       “ and for the true performance of all and every of the said covenants, each of the said parties bound himself to the other,” there would have been some color to charge the guardian. But this indenture is similar to the one in 1 Burn’s Justice, 90, for binding poor children oy the parish officers, in which it has been held that parish officers do not covenant.  He also argued that the statute of Feb 28, 1795, entitled “ An Act to secure to masters and mistresses, as well as to the apprentices and minor servants bound by deed, their mutual privileges,” having prescribed a different mode of binding apprentices, this indenture was wholly void, on that account.
    
      Jackson, on the other side,
    apprehended that this might be shown to be a good binding within that statute, which prescribes no set form of indenture. But the statute, by giving certain rights and powers to the parties, is cumulative, and contains no negative words, so that it cannot be construed to take away common-law rights. We therefore contend that this indenture, being in the form used in this country from its first settlement, is of binding force notwithstanding the statute.
    Each party having executed this indenture, the covenants shall relate to them respectively according to the subject-matter. If any part of it can be considered as intended for Melcher’s * performance, it ought to be so construed. Where one [ * 230 ] engages under seal, this is a covenant, and no particular form of words is necessary; and Melcher having become a party to this instrument by sealing it, if any thing can be considered as engaged by him, it is so far his covenant.
    In Abbot's Law of Shipping, page 123,  a technical distinction is laid down, between indentures which are expressed to be made between parties, and those which are not so, which applies to this case.
    The indenture in this case plainly consists of two distinct parts, first, Williams binds himself apprentice to Blunt, &.c.; after which the phraseology alters, and the indenture proceeds — “ during all which time the said apprentice shall serve,” &c., not that he engages or covenants for himself that he will serve. The case of Gylbert vs. Fletcher 
       shows that the apprentice is not bound by his covenants ; and unless these are the covenants of Melcher, they are bindi lg on no one, but are nugatory and delusive, and a fraud upon Blunt, who is bound on his part, and believed that Melcher was answerable to him for the apprentice’s faithful service.
    If this binding is not pursuant to the statute, we have no remedy under it, and there being none at common law against the apprentice, there is none left but against the guardian.
    In the case of Whitley vs. Loftus, 
       “ The court was of opinion that the very end of binding the father was to answer the wrong which might be done by the son to his master; therefore he (the father) must be obliged for his son’s true performance of the articles.”
    Unless this construction is supported, every apprentice in the commonwealth, as soon as he has become master of the trade which he is to learn, may leave his master’s service, and the master is without remedy.
    
      
      
        Doug. 518.
    
    
      
      
        Doug, ubi supra, note 1.
    
    
      
       Cites Scudamore vs. Vandenstene, 2 Inst. 673. — Cooker vs. Child, 2 Lev. 74 Gilby vs. Copley, 3 Lev. 138.
    
    
      
      
        Cro. Car. 179.
    
    
      
       8 Mod. 191
    
   Parker, J.

The question for our determination is whether the defendant is bound, by the covenants in this indenture, [*231 ] * for the apprentice’s good conduct. My opinion is, decidedly, that he is not bound. He is not mentioned as a party to those or any other covenants contained in the instrument, The intent of all the parties, in making this indenture, appears from the instrument itself. The apprentice binds himself, with the consent of his guardian. To express that consent, and, in my opinion, with no other intent, and for no other purpose, the guardian signs and seals the instrument. It is objected to this, that great inconveniences and mischiefs will arise from- this construction of this species of indenture. But, to guard against these, the guardian may enter into covenants explicitly with the master, and there is no doubt such covenants will be valid, and binding upon him.

Sewall, J.

The question before the Court is substantially this: — Do the declaration, and the deed declared on, which is spread upon the record, show that the defendant entered into any covenants on his part to be performed ? It is contended that, if this question receives a negative answer, there is no assignable reason for his signing and sealing the indenture. But I think that there are other words in the deed which sufficiently account for his being a part) to it, viz., the declaration of his consent that his ward should bind himself as an apprentice to the plaintiff. It is my opinion that the action is not maintained.

Sedgwick, J.

A covenant or any other contract may be set forth in a declaration or plea in the very words of the covenant or contract, or they may be described according to their legal import, and, in either case, such declaration or plea will be good; and if in this case there was a covenant on the part of the present defendant that the apprentice should perform his duties, this action is well brought.

I observe that both the guardian and ward belong to another state. We know not the laws of that state; but we may presume, at least, so much as this — that the guardian, under those laws, has a right to the custody of his ward, and that the latter cannot lawfully leave him without his consent. His consent, then, was important, and even necessary, to give operation to the indenture so far as to enable Blunt to hold the ward as his apprentice.

* But it is said there are covenants in this instrument, [ * 232 ] which may be construed to be the covenants .of Melcher, the guardian, and which cannot be the covenants of Williams, the ward, because, by reason of his infancy, he was by law incapacitated from making any covenant. And it is very true they cannot be the covenants of Williams, on which an action can be supported for the reason given. In my opinion, they are not the covenants, in that respect, of any one. The master expressly covenants for himself, his executors, &c., that he will do certain acts; but no such expressions are used where the duties of the apprentice are pointed out. It does appear to me that the words used here were intended merely to show what were the duties to be performed by the apprentice. The other construction of the words would, in my judgment, be unreasonable, as operating to bind the defendant in a case where he cautiously avoids binding himself,

Judgment for the defendant. 
      
      
         Vide Powers & Al. vs. Ware, 2 Pick. 451 — 4 Pick. 106.
     